Kangwa Musenga v Attorney General (Appeal No. 151/2023) [2025] ZMCA 156 (3 December 2025)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT LUSAKA (Civil Jurisdiction) Appeal No. 15 1/2023 BETWEEN: 0 . DEC 2025 KANGWA MUSENGA CiL REGISTRY 1 (cid:9) APPELLANT AND THE ATTORNEY GENERAL RESPONDENT Coram: Kondolo SC, Majula and Muzenga, JJA On 19th June, 2025 and 3rd December, 2025 For Appellant: (cid:9) Mrs L. Mushota of Mesdames Mushota & Associates For the Respondent: (cid:9) No Appearance JUDGMENT MAJULA JA, delivered the Judgment of the Court. Cases referred to: 1. 2. 3. 4. 5. 6. 7. 8. 9. Bank of Zambia v Kasonde (1995-1997) ZR 238 Patrick Chibulu V Attorney General - SCZ Appeal 14/2016 Care International Zambia v Misheck Tembo - SCZ Appeal 57/2016 Charles Mwila v Shif Contractors and General Dealers Comp/IRD/ND/ 107/2017 First Quantum Mining v Obby Yendamah - SCZ Appeal 206/2015 Richard Ndashe Chipanama v Zambia Railways - SCZ Appeal No. 143/2002 Pickard v Sears (1848) 2 Ex 654 Richard Musenyesa v Indo-Zambia Bank - SCZ Appeal 214/2016 Pamodzi Hotel v Mbewe (1978) ZR 56 10. Miyanda v Attorney General (1987) ZR 56 J2 11. 12. Sitali v Central Board of Health - SCZ Appeal No. 178/1999 Zambia National Broadcasting Corporation Ltd v Penias Tembo & Others (1995/97)Z. R. 68 13. Lillian Kayani Mtonga v Stephen Roberts (Being sued as the Proprietor of Chilenje Filling Station Fish Shop) (201 1/HP/ 1076) 14. Mwale v Mtonga and Another - SCZ Judgment No. 25 of 2015 15. Khalid Mohamed v The Attorney General (1 982) Z. R. 49 Legislation referred to: 1. 2. 3. Industrial and Labour Relations Act, Chapter 269 Employment Code Act, No. 3 of 2019 Constitution of Zambia (Amendment) Act, No. 2 of 2016 1.0 INTRODUCTION 1.1 This is an appeal against the judgment of the High Court (Judge M. K. Chisunka, as he then was) arising from an employment dispute relating to the dismissal of the Appellant. In the court below, the learned trial Judge held that the Appellant had been unfairly dismissed and awarded him compensation equivalent to six months' salary together with perquisites. The remainder of the Appellant's claims were dismissed. Dissatisfied with aspects of the decision, the Appellant now seeks redress before this Court. 2.0 BACKGROUND 2.1 The Appellant was initially appointed as a teacher on 20th February 1996. On 23rd May 2012, he applied to be seconded to the Professional Teachers Union of Zambia (the Union), a J3 registered trade union as of 2nd December 2011. Secondment to the Union entailed removal from the government payroll and subjection to the administrative, financial, and disciplinary control of the Union. Although his secondment was only formally approved on 9th January 2014, it was granted with retrospective effect. In the interim, the Appellant was elected as the Union's General Secretary for a four-year term. However, internal disputes, including his alleged expulsion, prompted his return to Chilindi Primary School in June 2013. Despite the turmoil, he remained active in the Union and was re-elected as General Secretary on 23rd June 2016. 2.2 Following his re-election, the Appellant requested removal from the government payroll on 28th October 2015 and resumed duties at the Union after being granted leave from 4th November to 15th December 2015. Nonetheless, on 2' February 2016, he was served with a call to exculpate himself for alleged absenteeism. Although he responded, explaining his non-appearance and noting he was not on the payroll during the period in question, he was eventually dismissed on 31st October 2017. Prior to this, he had reapplied for secondment, but no response was issued within the 14-day window stipulated under Clause 33(d) of the Public Service Terms and Conditions. 2.3 Drawing on his earlier experience and that of CW3 Matthews Nkhata, whose late secondment approval had been retrospectively recognized, the Appellant believed the renewal was deemed granted. His dismissal under these J4 circumstances prompted him to initiate proceedings seeking declarations that the termination was unlawful and unfair, reinstatement, damages, interest, and costs. 3.0 DECISION OF THE LOWER COURT 3.1 (cid:9) The lower court found that the Respondents, as public service administrators, had the lawful authority to discipline the Appellant, and that the disciplinary process was properly initiated following charges of absenteeism, with the Appellant afforded an opportunity to respond. However, the court held that the Respondents violated the rules of natural justice by failing to consider the Appellant's appeal against his dismissal, a right protected under both the Public Service Code and the Constitution. The justification offered, that judicial review proceedings had been commenced, was rejected as invalid. 3.2 As a result of this procedural breach, the court held that the entire disciplinary process was fatally flawed, rendering the validity of the dismissal academic. While the court declined to grant reinstatement, citing it as a rare and discretionary remedy under Bank of Zambia v Kasonde,1 it awarded compensation equivalent to six months' salary and benefits, with interest. All other reliefs were dismissed, and each party was ordered to bear their own costs. 4.0 GROUNDS OF APPEAL 4.1 Displeased with the decision rendered by the court below, the Appellant lodged an appeal premised on the following grounds: J5 '1. (cid:9) The trial Judge erred in law and fact when he did not give due consideration to the fact that a person performing union functions has a right not to be dismissed as per Industrial and Labour Relations Act, Cap. 269 and Section 5(g) of the Laws of Zambia. 2. The trial Judge erred in law and in fact when he declared the Appellant's dismissal unfair but not null and void, thereby depriving him of a normal retirement after serving in the Professional Teachers' Union from 2012 and is still in service. 3. The trial Judge erred in law and in fact when he did not consider as special the relationship between the Teaching Service Commission and the secondment policy to a union, in this case the Professional Teachers' Union of Zambia and Order reinstatement. 4. The trial court erred in law and in fact in holding that the power to discipline for absenteeism was properly invoked without considering the law and precedent on similarly circumstanced employees as the evidence showed." 5.0 APPELLANTS' ARGUMENTS 5.1 On 18th May, 2023, the Appellants lodged their heads of argument together with a list of authorities. Ground One: 5.2 (cid:9) In the first ground, it was submitted that the trial court erred in failing to recognise that the Appellant's engagement in trade union activities entitled him to protection under section 5 of the Industrial and Labour Relations Act, Cap 269. Specifically, section 5(1)(g) guarantees an employee the right not to be dismissed or prejudiced for exercising or intending J6 to exercise any right conferred under the Act. It was argued that the dismissal violated this statutory safeguard, rendering it not merely unfair, but unlawful and consequently null and void. Reliance was placed on Patrick Chibulu v Attorney General,2 wherein the Supreme Court affirmed that breach of a statutory provision in effecting dismissal renders the act unlawful. Further reference was made to Care International Zambia v Misheck Tembo,3 reinforcing the principle that the mode of dismissal dictates the relief to be awarded. Ground Two: 5.3 Pertaining to the second ground, the Appellant contended that, having found the dismissal unfair, the lower court erred in failing to declare it null and void, thereby depriving the Appellant of retirement and pension benefits earned over 21 years of service. Reference was made to Charles Mwila v Shif Contractors and General Dealers,4 which distinguishes between lawful and unlawful dismissal, as well as First Quantum Mining v Obby Yendamah,5 where the Supreme Court held that dismissal effected without adherence to natural justice or constitutional provisions, including the right to be heard, is unlawful. The court's finding that the dismissal was unconstitutional for violating Article 224(2)(b) of the Constitution was cited as further justification for the relief of reinstatement. Ground Three: J7 5.4 Moving on to ground three, the Appellant submitted that the trial court failed to appreciate the unique legal and institutional context of secondment to a trade union. Under the Public Service Terms and Conditions (clauses 33 and 34), an officer on secondment ceases to be governed by Public Service disciplinary mechanisms and is instead subject to the Union's internal code. The Appellant's continued service as General Secretary, after applying for renewal of secondment, was consistent with precedent and government practice, as evidenced by the case of CW3 Matthews Nkhata, who similarly served in a union position without immediate formal approval but was subsequently deemed seconded retrospectively. The Appellant contended that the doctrine of legitimate expectation and the principle of equal treatment, endorsed in Richard Chipanama v Zambia Railways,6 were violated when the same benefit was not extended to him. Ground Four: 5.5 Concerning ground four, it was argued that the disciplinary authority exercised by the Teaching Service Commission was without jurisdiction, as the Appellant, during secondment, was not amenable to their control. The Respondents' failure to adhere to internal timelines for processing secondment applications (14 days as per clause 33(d)) was said to amount to constructive approval. The precedent in Pickard v Sears,7 (cited with approval in Richard Musenyesa v Indo-Zambia Banks) was invoked to assert that the Respondents, by J8 conduct, led the Appellant to believe that his secondment had been or would be renewed, and cannot now be permitted to assert the contrary. 5.6 The Appellant thus prayed for a declaration that the dismissal was null and void, reinstatement in the civil service, and an award of damages for unlawful dismissal, inclusive of mental anguish. The cumulative argument was that the trial court failed to give full effect to statutory protections, constitutional safeguards, and established jurisprudence mandating fair and equitable treatment of similarly circumstanced employees. Authorities such as Pamodzi Hotel v Mbewe,9 and Miyanda v Attorney General,1° were cited to show that reinstatement may be ordered in cases where special circumstances, such as secondment to a union, are demonstrated. 5.7 Accordingly, the Appellant urged this Court to uphold the appeal in its entirety, with costs in both courts. 6.0 RESPONDENT'S ARGUMENTS 6.1 In opposing the appeal, the Respondents filed their heads of argument on 11th January 2024. They argued that the lower court was on firm legal ground in its determination that the Appellant was unfairly dismissed and properly compensated, but not entitled to reinstatement or a declaration that the dismissal was null and void. 6.2 On the first and third grounds, the Respondents refuted the Appellant's contention that his status as a union official J9 shielded him from dismissal. They submitted that the Appellant was afforded due process as required under law, relying on the Supreme Court decision in Sitali v Central Board of Health,11 which affirmed that submission of an exculpatory letter amounts to a hearing in disciplinary proceedings. They pointed out that the Appellant submitted an exculpatory letter dated 5th February 2016 and that the trial court acknowledged this fact. Thus, the Respondents contended that the procedural requirements were duly met. 6.3 Regarding the claim for reinstatement, the Respondents submitted that reinstatement is not a matter of right but a discretionary remedy exercised only in rare cases where special circumstances are present. They cited Bank of Zambia v Kasonde,1 Zambia National Broadcasting Corporation Ltd v Penias Tembo & Others,12 and Lillian Kayani Mtonga v Stephen Roberts (Being sued as the Proprietor of Chilenje Filling Station Fish Shop),13 to reinforce the proposition that reinstatement must be sparingly granted and only where compensatory damages would be inadequate. They contended that no such special circumstances were demonstrated by the Appellant to justify reinstatement, noting further that the mere existence of a secondment relationship with the union did not satisfy this threshold. 6.4 On the second ground, the Respondents addressed the Appellant's argument that the dismissal should have been declared null and void. They argued that the Appellant never pleaded for such relief and that the trial court correctly J10 awarded relief consistent with the pleadings. Citing Mwale v Mtonga and Another,14 and Dr. Justice Patrick Matibini's Commentary On Zambian Civil Procedure, they underscored that pleadings must be precise and tailored to the relief sought, which in this case was compensation for unfair dismissal. They further contended that the Appellant's claim of being deprived of retirement benefits was inherently tied to the issue of reinstatement, which had already been found inappropriate by the trial court in the absence of special circumstances. 6.5 As to the fourth ground concerning the disciplinary power for absenteeism, the Respondents asserted that the trial court rightly held that the applicable disciplinary code governed the employment relationship and that the charge of absenteeism was properly invoked. They emphasized that the Appellant failed to demonstrate how other employees were similarly situated or that they received more favourable treatment. Citing Khalid Mohamed v The Attorney General,15 they argued that the Appellant bore the burden to prove his case, which he failed to discharge. They also distinguished the case of Richard Ndashe Chipanama v Zambia Railways,6 relied upon by the Appellant, submitting that it was inapplicable as the facts were not comparable; unlike the Appellant, those employees were not charged with absenteeism. 6.6 In conclusion, the Respondents maintained that the lower court exercised its discretion properly, grounded in established precedent, and adequately addressed all material issues before it. They submitted that all grounds of appeal ill lacked merit and prayed that the appeal be dismissed with costs. 7.0 HEARING OF THE APPEAL 7.1 When the appeal came up for hearing on 19th June, 2025, Mrs. Mushota, learned Counsel for the Appellant, placed full reliance on the documents filed. There was no appearance for the Respondent despite proof of service, and accordingly, the Court proceeded to reserve judgment. 8.0 ANALYSIS AND DECISION OF THIS COURT 8.1 (cid:9) We have examined the appeal record, reviewed the judgment of the lower court, and taken into account the submissions advanced by counsel on both sides. 8.2 In our view, the issues that arise for determination in this appeal are as follows: 1. Whether the trial court erred in declining to declare the dismissal null and void notwithstanding its finding that the dismissal was unfair; 2. Whether the Appellant's status as a seconded trade union official ousted the Respondent's disciplinary jurisdiction; 3. Whether the lower court failed to accord due weight to the statutory protections afforded to union officials under the Industrial and Labour Relations Act; and 4. Whether the remedy of reinstatement was appropriate and justifiable in the circumstances of the case. J12 8.3 We shall address Ground One on its own; Grounds Two and Three together, as they are interrelated; and Ground Four separately. Whether the Appellant Was Protected from Dismissal by Virtue of Trade Union Status under the Industrial and Labour Relations Act - Ground One 8.4 The Appellant contends that his dismissal contravened section 5(1 )(g) of the Industrial and Labour Relations Act, Chapter 269 of the Laws of Zambia, which prohibits an employer from terminating an employee's services on account of the employee's lawful involvement in trade union activities. While this statutory protection is indeed well established, its invocation must be based on a demonstrable causal link between the dismissal and the employee's exercise of trade union rights. Section 5(1)(g) provides as follows: "5. Notwithstanding anything to the contrary contained in any other written law and subject only to the provisions of the Constitution and this Act, every employee shall have the following rights: (g) the right not to be dismissed, victimised or prejudiced for exercising or for the anticipated exercise of any right recognised by this Act or any other law relating to employment; or for participating in any proceedings relating thereto..." 8.5 This provision is designed to safeguard the autonomy of union representatives and members from retaliatory or punitive action solely because of their union role. However, as courts have repeatedly clarified, it does not immunise J13 union officials from legitimate disciplinary action arising from unrelated acts of misconduct. 8.6 In the present case, the disciplinary charge levelled against the Appellant was not based on his trade union activity, but on persistent absenteeism from his designated post. The evidence presented before the trial court showed that the Appellant failed to attend work for an extended period, and the disciplinary charge explicitly cited unauthorised absence as the ground. The court correctly found that the disciplinary process was triggered by this misconduct, and not by the Appellant's union affiliation or activities. 8.7 The present matter contains no evidence that the Appellant's union role was the motivating factor behind his dismissal. Indeed, the absence was unconnected to any ongoing or recent union activity. 8.8 (cid:9) It is also important to recall that trade union protection under the ILEA does not override the obligation of every employee, including seconded union officials, to comply with basic administrative obligations such as reporting for duty, maintaining communication with their employer, or formally regularising secondment renewals. The law draws a distinction between protected union conduct and dereliction of employment duties. A failure to discharge work responsibilities, even by a union official, is a legitimate ground for disciplinary action. 8.9 Additionally, the Appellant bore the burden of proving that his dismissal was in retaliation for union activity. In Kha lid J14 Mohamed v Attorney General,15 the Supreme Court confirmed the general principle that, "A plaintiff must prove his case and if he fails to do so the mere failure of the opponent's defence does not entitle him to judgment." 8.10 The Appellant did not discharge this burden. He adduced neither direct nor circumstantial evidence to establish that the disciplinary charge was a mere pretext, or that other union officers in comparable circumstances were accorded more favourable treatment. Equally, there was no proof that the Respondent acted out of hostility towards union representation. In the absence of such evidence, the trial court cannot be faulted for dismissing the allegation of victimisation. 8.11 In conclusion, the Appellant's reliance on section 5(1)(g) of the Industrial and Labour Relations Act is misplaced in the factual circumstances of this case. The disciplinary proceedings were properly instituted on the basis of absenteeism, a recognised breach of the Public Service Code, and not as retaliation for the exercise of protected union activity. While the statutory protections accorded to union officials are of undeniable importance, they cannot be stretched to immunise acts of dereliction of duty. This ground of appeal, therefore, fails. Grounds two and three 8.12 Turning to the second and third grounds of appeal, the Appellant argues that the trial court erred in failing to declare his dismissal null and void and in declining to order J15 reinstatement, asserting that the procedural breaches were fundamental and that his secondment created exceptional circumstances warranting such relief. The Respondent maintains that nullity was never pleaded and that no special circumstances existed to justify reinstatement, rendering the award of compensation appropriate. 8.13 We have scrutinised the Record of Appeal, particularly page 29, and observe that, contrary to the Respondent's assertion that the Appellant did not seek a declaration that his dismissal was null and void in his originating process, he in fact did so. 8.14 We begin our analysis by observing that the learned trial Judge correctly found the Appellant's dismissal to have been procedurally flawed due to the Respondent's failure to consider his appeal against dismissal, an omission that breached the rules of natural justice and rendered the dismissal unfair within the meaning of the Employment Code Act No. 3 of 2019. 8.15 The Appellant's employment, governed by the Public Service and Teaching Service Regulations and the applicable internal disciplinary procedures, required strict adherence to these procedural safeguards. The Respondents did not meet that standard. The real issue raised by the Appellant, however, is not the finding of breach, which is undisputed, but the nature of the relief granted, specifically his complaint that the court erred in declining to order reinstatement. 8.16 The Appellant's contention is that the trial Judge failed to J16 properly appreciate the unique relationship created by the Teaching Service Commission's secondment policy to a trade union, namely the Professional Teachers' Union of Zambia. It is argued that this special relationship ought to have been treated as an exceptional circumstance justifying the remedy of reinstatement, which the court wrongly declined to order. 8.17 While reinstatement is one of the recognised remedies for unfair dismissal under Zambian employment law, it is a discretionary and exceptional remedy, not one to be granted as a matter of course. 8.18 The law on reinstatement has been settled by a consistent line of authority. In Bank of Zambia vKasonde,1 the Supreme Court articulated the general principle that: "Reinstatement, a remedy rarely granted unless special circumstances present, which was the case here." 8.19 This principle was reaffirmed in Zambia National Broadcasting Corporation Ltd v Penias Tembo & Others, 12 where the Court further held: "The power to order reinstatement is discretionary, and, apart from the gravity of the circumstances, the effect of making such an order should be taken into account." 8.20 In the present case, the trial court found that although there had been a procedural irregularity, namely, the failure to consider the Appellant's appeal against dismissal, there were no special or exceptional circumstances warranting reinstatement. The Court instead awarded compensation. 8.21 Having carefully considered the circumstances of this case, J17 we are persuaded that it falls within the category of exceptional matters in which it is necessary to disturb the order of the lower court. We are satisfied that exceptional grounds exist to justify the exercise of our discretion in favour of the Appellant by directing reinstatement. We are mindful that reinstatement is an extraordinary remedy, sparingly granted in view of the administrative and practical challenges it often entails. Nonetheless, in the present case, the Appellant served as Head Teacher in a public institution, which was under a duty to act with fairness. Our conclusion is fortified by the authority of Bank of Zambia v Joseph Kasonde.1 We accordingly set aside the order for compensation and substitute it with an order reinstating the Appellant. As a necessary consequence of that reinstatement, we award all salary arrears from the date of dismissal to the date of reinstatement in order to ensure substantial justice. 8.22 In light of the foregoing, we uphold grounds two and three of the appeal. Consequently, it serves no useful purpose to consider ground four. 9.0 CONCLUSION 9.1 Put succinctly, our key findings are as follows: 1. No breach of union protection: The dismissal arose from absenteeism, not union activity, and the Appellant failed to show discriminatory treatment. J18 2. Procedurally unfair dismissal: The Respondent's failure to consider the Appellant's appeal breached natural justice under the Employment Code Act No. 3 of 2019. 3. Reinstatement warranted: In the circumstances of this case and given the public-sector context and the nature of the breach, reinstatement, not compensation, is the appropriate remedy. 10.0 DISPOSAL 10.1 Accordingly, we make the following orders: 1. Reinstatement The Respondent is hereby ordered to reinstate the Appellant to his substantive position, or an equivalent grade and station, with immediate effect, without loss of seniority, rank, or accrued benefits. 2. Salary Arrears and Benefits The Respondent shall pay to the Appellant all salary arrears, allowances, and contractual benefits ordinarily payable to an employee in his position from the date of dismissal to the date of reinstatement, subject to statutory deductions. 3. Interest The arrears payable under Order (2) shall attract interest at the average short-term lending rate, as determined by the Bank of Zambia, from the date each payment fell due until full settlement. Jig 4. Continuity of Service For all purposes of pension, gratuity, leave, and other employment-related entitlements, the Appellant shall be deemed to have been continuously in service. 5. Each party to bear its own costs. M. M. Kondolo, SC COURT OF APPEAL JUDGE J B. M. Mula (cid:9) K. Muzenga COURT OF APPEAL JUDGE (cid:9) COURT OF APPEAL JUDGE