Zimbabwe Textile Manufacturers Association v Zimbabwe Textile Workers Union and Dr. Godfrey Kanyenze

In August 2011, the applicant (Zimbabwe Textile Manufacturers Association) and the first respondent (Zimbabwe Textile Workers Union) reached a deadlock in negotiations for minimum wages/salaries in the textile industry for 2010. The parties agreed to refer the matter to voluntary arbitration and appointed Messrs Mordicai Mahlangu and Munyaradzi Gwisai as arbitrators. When these two arbitrators reached a deadlock, they appointed the second respondent, Dr. Godfrey Kanyenze, as a third arbitrator in accordance with their agreement dated 15 August 2011. On 28 October 2011, the second respondent delivered an award granting a 15% increase in the minimum wage from US$150.00 to US$173.00 per month, effective from 1 July 2011 for 12 months. The applicant, while complying with the award, believed it was contrary to public policy and sought to have it set aside. The award was subsequently gazetted as Statutory Instrument 77 of 2012 on 11 May 2012, thereby becoming law.

• Whether the respondents' heads of argument were filed out of time and should result in the respondents being barred
• Whether the court had jurisdiction to set aside an arbitral award that had been gazetted as a statutory instrument
• Whether the arbitrator exceeded the scope of his terms of reference by calculating cost of living adjustments beyond the specified period
• Whether mathematical errors in the award justified setting it aside on grounds of public policy

1. The application was dismissed. 2. The applicant was ordered to pay costs on a legal practitioner and client scale.

Once an arbitral award arising from collective bargaining negotiations has been properly registered and gazetted as a statutory instrument in terms of sections 80 and 81 of the Labour Act, it becomes law and the High Court has no jurisdiction to set it aside under the Arbitration Act. The proper remedy for challenging such a gazetted award is through the procedures set out in the Labour Act, including seeking amendment of the collective bargaining agreement through the Minister or appealing to the Labour Court. A challenge to a statutory instrument cannot be brought through an application to set aside an arbitral award, as this would constitute an improper challenge to the law of the land.

The court observed that the applicant's conduct in persisting with the application despite being aware of the publication of Statutory Instrument 77/2012 justified an order of costs on a higher scale. The court also noted that under Rule 238(2a) of the High Court Rules 1971, it is possible for an applicant to obtain an early hearing date before the expiry of the normal 10-day period, in which case the respondent must file heads of argument at least 5 days before the hearing, and the thrust of the rule is that the heads of argument must be before the court five days before the hearing. The court further observed that the applicant could still have recourse through sections 80 and 81 of the Labour Act to apply for amendment of Statutory Instrument 77/2012 if it believed the award contained provisions that were inconsistent with legislation, unreasonable or unfair.

This case is significant in Zimbabwean labour and arbitration law as it establishes the principle that once an arbitral award has been properly registered and gazetted as a statutory instrument in terms of the Labour Act, it becomes law and cannot be challenged through an application to set aside the award under the Arbitration Act. The case emphasizes the importance of following proper statutory procedures for objecting to registration of awards or seeking amendments to gazetted collective bargaining agreements. It clarifies the hierarchy and interaction between the Arbitration Act and the Labour Act in the context of collective bargaining agreements. The judgment reinforces the principle that courts lack jurisdiction to set aside statutory instruments through ordinary applications, and that specific statutory remedies must be pursued where they exist.