Pieter Gertenbach v Crosland Engineering (Private) Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
LC/H/196/13
HELD AT HARARE 22ND MAY 2013
JUDGMENT NO LC/H/196/13
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IN THE LABOUR COURT OF ZIMBABWE	  JUDGMENT NO LC/H/196/13

HELD AT HARARE 22ND MAY 2013		  CASE NO LC/H/81/12

PIETER GERTENBACH				Applicant

CROSLAN ENGINEERING				Respondent

(PRIVATE) LIMITED

Before The Honourable G Musariri, President

For Applicant		Mr H Chitima, Attorney

For Respondent		Mr M Chijara, Attorney

MUSARIRI, G:

On 31st October 2012 this Court made an order the relevant portion of which read,

“1.	The Respondent being barred in terms of Rule 19 for not filing Heads Of Argument, the appeal be and is hereby granted and arbitral award of the Respondent by H.R. Matsikidze dated 27 January 2012 is hereby set aside.”

Applicant then filed this application for rescission of the order.  Respondent opposed the application.

Default

Appellant’s case was as follows.

1.

On 27th January 2012 the Honourable R Matsikidze made an arbitration award.

2.

In terms thereof the arbitrator ordered Respondent to pay Applicant an amount of US$19 646.00

3.

In February 2012 Applicant received Respondent’s Notice of Appeal against the award.

4.

In same month he instructed his attorney Mr M Mandevere of the law firm Mbidzo Muchadehama & Makoni to oppose the appeal.

5.

The attorney did nothing until he left the firm in September 2012.

6.

The appeal was set down for hearing.

7.

On 30th October 2012 his attorneys filed a belated Response to the appeal.

8.

On 31st  October 2012 the court made the aforesaid order which Applicant seeks to have rescinded.

9.

In short Applicant blames his attorneys for failure to file the requisite papers to put his case before the Court.

Respondent, through his attorney’s Heads Of Argument, made the following point,

“9.	It is now settled in our jurisdiction that litigants cannot lightly escape the conduct of their legal practitioners who are their agents in such matters.  If the legal practitioner exhibits tardiness and lack of due diligence in the pursuit of a client’s affairs, this will no doubt be visited on the client.  Cases are galore on this point.”

The submission is well-made considering the inordinate delays in this matter.  Applicant’s attorneys virtually sat on the matter for close on 8 months.  They only scrambled to action on the eve of the date of hearing.  They filed a belated Respondent to the appeal.  In addition they were required to file Heads Of Argument.  They did not do so.  Hence this Court barred them for failure to file the Heads.

Merits

The arbitration award made in favour of Applicant is in respect of outstanding salaries and benefits.  Applicant’s claim was calculated thus,

Salaries  and benefits				22 846.00

Deductions						  3 200.00

Balance					 USD$19 646.00

Respondent dealt with this aspect on a cursory basis.  In oral submissions Respondent submitted that Applicant’s claim was inflated.  The claim did not take into account deductions for income tax or NSSA contributions.  However Respondent admitted liability in the sum of USD$3 127.48 only.  No calculation

was availed to show how the balance conceded came about.

In these circumstances I am persuaded to find that the merits favour Applicant.  Respondent admit owing him.  Yet they happily urged this Court to set aside the entire award.  They should have shown their bona fides by at least saving that portion of the award which they conceded.  In any event I am not convinced that such deductions as may be due for taxes and charges would reduce outstanding salaries by more than 80%.  There was no basis for setting aside the arbitration award in its entirety.

Conclusion

Gross negligence was exhibited in the conduct of Applicant’s case.  However I take note of the fact that it was the doing of his attorney rather than Applicant.  Ordinarily such tardiness should be visited upon a client by reason of

the rules of agency.  However he has a good case on the merits.  On balance I find that good cause has been shown for rescission.

Wherefore it is ordered that,

The order made by this Court on 31st October 2012 be and is hereby rescinded;

Applicant shall file his Heads Of Argument with fifteen (15) days of this order; and

Each party shall bear its own costs.

G. MUSARIRI

PRESIDENT