Tanners and Shoe Manufacturing Association v Zimbabwe Leather Shoe and Allied Workers Union and Others

The applicant filed an application to set aside an arbitral award dated 5 April 2013 in terms of Article 34 of the Arbitration Act. The applicant filed heads of argument on 29 August 2013 and served them on the first respondent on the same day and on the third respondent's legal practitioners on 2 September 2013. Both first and third respondents filed opposing papers, but failed to file their heads of argument within 10 days as required by Rule 238(2a) of the High Court Rules, thus becoming automatically barred in terms of Rule 238(2b). The second respondent did not file opposing papers and was barred under Rule 233(3). The matter was set down for argument on 22 October 2013. The third respondent applied for upliftment of bar on 11 November 2013, blaming a law officer on secondment who had left without filing heads. The first respondent filed heads of argument out of time on 4 November 2013 and only applied for upliftment of bar on 13 March 2014, arguing they were not barred due to a proviso in Rule 238(2a). The arbitral award in question had granted 4.5% across the board plus allowances, while the employer had only offered 3% across the board on wages only without allowances.

• Whether the first and third respondents should be granted upliftment of the automatic bar imposed under Rule 238(2b) of the High Court Rules
• Whether reasonable explanations were provided for the delays in filing heads of argument
• Whether the arbitral award dated 5 April 2013 should be set aside under Article 34 of the Arbitration Act
• The proper interpretation of the proviso to Rule 238(2a) of the High Court Rules

1. The applications for upliftment of bar by the first and third respondents are dismissed with costs. 2. The Arbitration Award dated 5 April 2013 is set aside. 3. The respondents shall pay the costs of suit.

The binding legal principles established are: (1) The proviso to Rule 238(2a) of the High Court Rules does not alter the immutable rule that a respondent represented by a legal practitioner must file heads of argument within 10 days of being served with the applicant's heads - the proviso only applies to specific scenarios such as where applicant's heads are served near the hearing date, where a previously unrepresented respondent obtains representation, or where an unrepresented litigant chooses to file heads. (2) In applications for upliftment of automatic bar under Rule 238(2b), where a party blames their legal practitioners or law officers for the default, supporting affidavits from those practitioners/officers must be filed, otherwise the application will be dismissed. (3) Mere assertion that a default was not wilful is insufficient without full disclosure of all relevant facts including dates, names, and circumstances. (4) When respondents remain barred, the application proceeds as unopposed in terms of Rule 238(2b).

The court noted obiter that there may be prospects of success in the main application because the arbitrators did not give reasons for awarding 4.5% across the board plus allowances when the employer had offered only 3% across the board on wages without allowances in the alternative. This suggests that arbitral awards lacking proper reasoning may be vulnerable to review. The court also observed that paragraph 2 of the applicant's draft order regarding registration of the award as an amendment to the collective bargaining agreement should be struck out as it was not the case before the court, indicating limits on the relief that can be granted even in unopposed proceedings.

This case is significant for Zimbabwean procedural law as it provides clear guidance on the interpretation and application of Rule 238(2a) and (2b) of the High Court Rules regarding automatic bar for failure to file heads of argument timeously. It clarifies that the proviso to Rule 238(2a) does not provide a general exemption but applies only to specific scenarios. The case also reinforces the principle that applications for upliftment of bar require full and frank disclosure of all relevant facts, including supporting affidavits from persons responsible for the default, following the precedent in Friendship v Cargo Carriers. It demonstrates the court's strict approach to compliance with procedural rules in arbitration review proceedings and the criteria courts apply when exercising discretion in upliftment of bar applications.