Kennedy Bwalya Mpamba and Ors v The Attorney General (2022/HP/1833) [2025] ZMHC 62 (18 August 2025)

I IN THE HIGH COURT FO ~ i&n:mt:~ AT THE PRINCIPAL REGISTRY HOLDEN AT LUSAKA (CIVIL JURISDICTION) BETWEEN: 2022/HP/1833 2022/HP/1842 KENNEDY BWALYA MPAMBA & 527 OTHERS DARLINGTON KAFWETA MALIPENGA 1 ST PLAINTIFFS 2ND PLAINTIFFS & 989 OTHERS AND THE ATTORNEY GENERAL DEFENDANT BEFORE THE HON. LADY JUSTICE. G. MILIMO- SALASINI ON THE 18m DAY OF AUGUST 2025. Fo e Plaintiff: Mesdames Mrs. H. C Musa Messrs Milner & Paul Legal Practitioners For the Defendant: Mesdames Mrs. S. Tembo-Mambwe The Attorney General's Chambers JUDGMENT Cases ref erred to 1. PHINATE CHOLA V ZESCO LIMITED CAZ APPEAL NO. 66/2019 2. MAYAPI & 4 OTHERS V THE ATTORNEY GENERAL (2019) - \CZ-003) 3. LEVY MWALE V ZAMBIA NATIONAL BROADCASTING CORPORATION (2019/CZ/0012) 4. DERRICK LUKONDE AND OTHERS V THE ATTORNEY GENERAL APPEAL NO. 105/2016 5. LUBUNDA NGALA AND JASON CHULU V ANTI- CORRUPTION COMM.1ss1O, (CC/R2 OF 2017)(2018)ZMSC 416 -J2- 6. LUBINDA NGALA AND JASON CHULU V ANTI- CORRUPTION COMMISSION ( 1917 /ICC/R002 JUDGMENT NO. 4 OF 2018 7 . MIKE HAMUSONDE MWEEMBA V KAMFO KASONGO, ZAMBIA STATE INSURANCE CORPORATION LIMITED (2006) ZR 10 8. WILSON MASAUSO ZULU V AVONDALE HOUSING PROJECT (1982) Z. R 172 9 . THE ATTORNEY GENERAL V ABOUBACAR TALL AND ZAMBIA AIRWAYS CORPORATION LTD (1995) SCZ APPEAL NO. 77 OF 1994, (1995) Z. R 10. KACHINGWE V MUMBA (2013) ZR VOL. 1 page 17 1 1. SP MWILA + COMPANY V BP ZAMBIA PLC (2013) Z. R Vol. 2 pg 250 12 . DONOVAN V GWENTOYS (1900) I WLR 13. HALSBURY'S LAWS OF ENGLAND, Vol 28, 4th Edition at paragraph 622 and 644 14. DANIEL MWALE V NGOLOMOLE MTONGA and ATTORNEY GENERAL SCZ NO. 25 of 2015 15. ZCCM V HOHN DAVID CHILESHE Legislation Referred to: 1. Constitution of Zambia (Amendment) Act N0.2 of 2016 2. Defence Act, Chapter 106 of the Law of Zambia Other Works 1. Halsbury Laws of England, Vol 28, 4th edition 1.0 INTRODUCTION 1. 1 This is an action brought by officers from the Zambia Air Force and Zambia Army (herein after referred to as "the Plaintiffs) against the Attorney General (herein referred to as "the Defendant") on 21st November 2022 under Cause 2022/HP/ 1833 and on 3rd November 2022 under Cause 2022/HP / 1842 in which the Plaintiffs sued the -J3- Ministry of Defence, through the Attorney General seeking the following reliefs; 1. An Order that the Plaintiffs were underpaid on their pension lump sums 11. An Order for re-computation of the Plaintiffs lump sum benefits and last pay certificate using the correct notches relating to each former employee at retirement as determined from the date of promotion to the date of retirement. 111. An Order that the Plaintiff were entitled to remain on the Zambia Army and Zambia Air Force payroll from their dates of retirement to the dates the pension lump sum were paid until the balance on the lump sum are paid in full. 1v. Immediate re-instatement on the Zambia Army payroll and Zambia Air Force payroll until their pension's lump sum are paid in full and the payment of salary arrears from the date they were removed from the payroll to the date they will be paid their pension lump sum in full. v. An Order that the service allowances be re-instated and arrears on their payslip calculated from the date they were removed in line with Public Service Management Division Circular NO. B9 of 2021. vi. An Order that the Plaintiffs be paid their differences in salary calculated using the right notch at retirement as salary arrears. 11. Interest on the amount to be found due .0 BACKGROUND -J4- .1 The fa ts that ignited the action are that the Plaintiffs were emplo ees of the Ministry of Defence and serving in the Zambia Air F r e and Zambia Army in various ranks of Brigadier General, lonel Lieutenant Colonel, Major, Captain, Lieutenant, Flight Sergeant Sergeant, Warrant Officers in classes One and Two, non commissioned Officers. 2.2 The conditions of service of the Plaintiffs were provided for through a notching system which prescribed the basic salaries and allowances due to Defence Personnel in the various institutions of Zambia Army, Zambia Air Force, Zambia National Service and Zambia Security Intelligence Service. 2.3 Over time it was discovered that officers of the same ranks and salary scales in different defence institutions were receiving different salaries and allowances thereby creating a distortion in remuneration. 2.4 For instance, it was observed that Brigadier Generals were placed in salary scale DF03 in all the four institutions of the Defence Force. yet a Brigadier General in the Zambia Army was remunerated an amount of KS, 455; a Brigadier General in the Zambia Air Force (ZAF) was remunerated a sum of KS,623; a Brigadier General in the Zambia National Service was remunerate~ an amount .. _ r Of K6' 573 while Brigadier General in the Zambia , · e ZSI was S) remunerated as sum of 2.0 BACKGROUND -J4- 2. 1 The fa ts that ignited the action are that the Plaintiffs were employees of the Ministry of Defence and serving in the Zambia Air Force and Zambia Army in various ranks of Brigadier General, Colonel, Lieutenant Colonel, Major, Captain, Lieutenant, Flight Sergeant, Sergeant, Warrant Officers in classes One and Two, non commissioned Officers. The conditions of service of the Plaintiffs were provided for through a notching system which prescribed the basic salaries and allowances due to Defence Personnel in the various institutions of Zambia Army, Zambia Air Force, Zambia National Service and Zambia Security Intelligence Service. 2. 3 Over time it was discovered that officers of the same ranks and salary scales in different defence institutions were receiving different salaries and allowances thereby creating a distortion in remuneration. 2.4 For instance, it was observed that Brigadier Generals were placed in salary scale DF03 in all the four institutions of the Defence Force. yet a Brigadier General in the Zambia Army was remunerated an amount of KS, 455; a Brigadier General in the Zambia Air Force (ZAF) was remunerated a sum of KS,623; a Brigadier General in the Zambia National Service was remunerate.d f K6 573 while Brigadier General in the Zambia t an amoun o , curity Intelligence Service (ZSIS) was remunerated as sum of KI ' 4,97. In the case of Warrant Officers of class One(WOl) rm .c L - -~ .-- ...... nlrwPi1 in the Zam bi - ~ ~ . - \\ ,, t '" i \',,,, L it \ th\ HHh 11 1\, 1r111·11t n W111·111111 ( Hl l1 •t 1 ( 111111 '\• , ,, '\\' d K \ . \ 't wh l • , vVl\1·r11111 ( HI 1'( ,, (1 111 11 1111, ,11 1111J l1, N-, ti, n . ' w \, p d I\ I !, I, n . n l11r1,~ 1 111 I 11 11, l lH' ff l -ll t y th tf the l e111III · 7i 11nh , ,,11 I hi f of th Arm I Ii' re ~u n I) <' t v to th< v rm 1 nt t r ti n nd h u·rn rtl th tl l 1Y1 n , p n I ncl vc rnm nt. In with th · nll \I in t d R port n th ' Hnrmon1 ation o or tfl l nditi n f rv1 for Zwnbi Army Zo.mbiu Air • r , Z mbi tion I nd Z mbia urily and lnl'·llig"nc , ' rv1 . (referred to s "th Harmoni tion R ·port") .6 The gist of the Harmonis tion R port wa th t, ft 'r id ntifying th ~ distortions proposals were mad in th r mun ration syst ·m bas on the following seven (7) principles; a) Equal pay for equal work b) Life cycle for conditions of service c) Graded increases over a period of time as oppos d t across the board increases d) Move from voluntary insurance to mandatory health insurance e) Consolidate all remuneration allowances into basic salary -J6- f) Retain duty facilitating allowances and move them into recurrent expenditure and; g) Maintain the housing allowances and transport allowances for the purpose of managing payroll and conditions of service in the entire public service as a percentage of basic salary. 2.7 Of importance and pertinent to this action, was a resolution that all remunerative allowances be consolidated into the basic salary, using the highest paying institution in the various ranks as a basis for developing a single rank salary structure. 2.8 The Harmonisation Report proposed inter alia, that "(b) The maximum number of notches shall be eleven (11) and the overlap shall be on the sixth notch. (6) 2.9 According to the Harmonisation Report, from 2013 the proposed notches for all ranks in the Defence service would be as follows; (a) Personnel in the Defence Forces shall convert at the fallowing notches; 1. Colonel in Professional scale (DFPS0 1) shall be placed in notch 3 with effect from 1st September 2013, ii. Lieutenant Colonel in Professional scale (DFPS02) shall be placed in notch 3 with effect from l st September, iii. Major in Professional scale (DFPS03) shall be placed in notch 3 from 1st September, 2013 -J7- . Major in Technical scale (DFfS03) shall be placed in notch 2 from 1st September, 2013 Captain in Professional scale (DFPS04) shall be placed in notch 4 from 1st September, 2013 v1. aptain in Technical scale (DFfS04) shall be placed in notch 3 from 1st September, 2013 vu. Lieutenant in Professional scale (DFPS0S) shall be placed in notch 4 from 1st September, 2013 Vlll. Lieutenant in Technical scale (DFTS0S) shall be placed in notch 3 from 1st September, 2013 IX. The rest of the officers shall be placed in notch 1 from 1s t September, 2013 X . Non-Commissioned officers with Trade qualifications shall be placed in appropriate notches in subsequent years after 2013. Xl. The following officers in Medical scales (DFMS05) shall be placed in the fallowing notches; (a)Junior Resident Medical Officer - notch 1 (b) Senior Resident Medical Officer - notch 2 (c) General Medical Officers - notch 3 .. Xll. Xlll. Veterinary Officer shall be placed in notch 8 of DFPS04 Dental Officers shall be placed in notch 7 of DFPS04. · way of providing clarity on the harmonisation of the conditions service, the Report shows at Appendix A, a table called verlapping Single Spine Notch System for Defence" which ,w h not hin system from Notch 1 to Notch 11 for Defence notch 2 OFT 0 all placed . ale (DFPS ) all be pla d . notch 4 · p ember 013 7. . ·cal scale (DFTS04 shall be placed in notch 3 September 2013 e ·e Professional scale (DFPS05 shall be placed : notch 4 om 1 September, 2013 e e an in Technical scale (DFTSOS) shall be placed in noteb 3 from ls. September, 201 3 :x. e res of the officers shall be placed in notch 1 from September, 201 3 X. - on-Commissioned officers with Trade qualifications sh all be placed in appropriate notches in subsequent ears after 20 13. Xl . e following officers in Medical scales (DFMS0S) shall be placed in the following notches; (a)Junior Resident Medical Officer - notch 1 b Senior Resident Medical Officer - notch 2 ( c General Medical Officers - notch 3 Xll. Veterinary Officer shall be placed in notch 8 of DFPS04 xi11. Dental Officers shall be placed in notch 7 of DFPS04. B way of providing clarity on the harmonisation of the conditions f s ervice, the Report shows at Appendix A, a table called "Overlapping Single Spine Notch System for Defence" which c, l 1 1 \ 1:s he notch ing system from Notch 1 to Notch 11 for Defence ~ -.l • i,·Li n 11 ul r N f 1 w s l i 11 w-up t th Hann n1 ti n nd it is fr m this intirr~· 1 \tl}-., LI TION OF CAUSES 2022/HP AND . th Plaintiffs in aus O / HP/ 1833 fil d an n s lidate its action with Cause 2022/HP / 1842 for R ..1 . • . I. - e tha the Plaintiffs in Cause 2022/ HP / 1842 had also e Defendant for the same reliefs having been similarly stanced as the Plaintiffs in Cause 2022/HP / 1833 and that e De e dan would not be prejudiced should the court grant the a o consolidate the two actions. e e eton Arguments also filed on 10th March, 2023 the P ain · s cited Order III rule 5 of the High Court Rules of the High Court Ac as read with Order 4 rule 9 of the Rules of the Supreme Coun (White Book). ) ce to state that an Order to consolidate the two Causes was ade on 19 April, 2023 at an inter parte hearing where the Defendant did not object to the application . 8 -CHEDULING BRIEF FOR THE PLAINTIFFs e Plaintiffs filed a Scheduling Brief on 27 th October, 2023 in ,.,hich the outlined the undisputed facts and disputed facts ogether with legal arguments. I wish to place focus on the disputed c s fo r which this action is before me. I -J9- The Plaintiffs do not agree with the Defendant's position that throughout the employment of the Plaintiffs, the notching system had always been implemented every year whereby each year an Officer would be upgraded from one notch to another and receiving an increased salary in accordance with the notches and in conformity with seniority and rank. .3 The Plaintiffs have disputed the Defendant's denial of the fact that it was custom and practice that when an Officer or Soldier in the Zambia Air Force or Zambia Army is promoted to a particular rank, that date of promotion was taken to be the incremental date (for the Officers or Soldiers salaries and allowances), and whereby an Officer or Soldier would automatically be upgraded to a higher notch with an upward adjustment to their salary. 5.4 The Plaintiffs dispute the Defendant's denial that when Circular NO B25 of 2013 came into effect the Plaintiffs were not upgraded but were instead downgraded to lower notches by grade and rank. 5.5 The Defendants claim that the Plaintiffs were not underpaid and _. that they received their dues in accordance with their entitlement in their prevailing conditions of service, is disputed by the Plaintiffs. LAW RELIED ON BY THE PLAINTIFFS ON THE ISSUE OF 5.6 UNDERPAYMENT On the Plaintiffs claim of being underpaid, their salaries and benefits, the case of PHINATE CHOLA V ZESCO LIMITED was relied upon. -110- Plaintiffs hav al o cited A.rticle 189 of the Constitution of \A.m ndm nt) A. t NO. 2 of 2016. nth it is the Plaintiffs vehement claim that the ff ected by the Defendant was unconstitutional it ntradicted the Article 189 of the Constitution. lRCULAR B25 OF 2013 e scheduling brief, Plaintiffs aver that the Defendant, through Defence Forces contravened Circular B 25 of 2013 by not ementing the provisions which states that; The new salaries are contained in Appendix A to this Circular and shall apply to all serving Defence personnel and those recruited on or after 1st September, 201 7". buttressing, the Plaintiffs have cited the decision of the Constitutional Court in Mayapi & 4 Others V Attorney General2 t argue that Circular B25 of 2013 is applicable to all serving Defence Personnel including the Plaintiffs. That therefore the Court must Order the Defendant to pay the Plaintiffs the remaining pension benefits which were occasioned by the under payments. 5.11 The Plaintiffs are also of the firm view that since their pension benefits have not been paid in full, they must be retained on the respective payrolls of Zambia A.ir Force and Zambia Army until the underpayments are paid. The case of Levy Mwale V Zambia National Broadcasting Corporation3 has also been relied U'f>On 5. O DEFENDANTS SCHEDULING BRIEF he De endan fi ed · cheduling Brief on 2 January, 2024 · h ·c · does no dispute that the Plaintiffs are former emp oyees o and Zambia Air Force. cco o e Defendant, hat is in dispute and an issue for his ination is hether or not the Plaintiffs are entitled to e e ·efs they seek in their Statement of Claim in the legal instrument provi · g a criteria for u pgrading __ .;...___;;;s;...;::,cal~e:....=.s for service personnel from one notch to the next e O C . e Defe dant relies on various Circulars issued in 2013, 20 6 an 2 19 as well as the Report on Harmonization of Salaries d · tion of Service of May 2013 for Defence personnel hich e e endant filed in its Bundle of Documents. I 1s the Defendants contention that the notching system as ·ntroduced by Circular No. 25 of 2013 and was effecti e from 1 September, 2013. The Defendant's argument is that there is no basis for the Plaintiffs claim as the Circular of 2013 does not provide for the migration in notches, nor is there any specific law that compelled the Defendant to migrate the Plaintiffs from one notch to the higher notch. The Defendant cites the case of Denick Lukonde and Others V the Attorney Genera14 to argue that a decision to migrate the Plaintiffs rom one notch to the other notch had to be backed by law and in h absence of any law the Defendant cannot be compelled to r d . the salary scales of the Plaintiffs. I nth r th \. -J12- ir ular B25 of 2013 by tatin that d and conditions of service 1n the f n P r onnel ntry points into the new salary structure J b evaluation and re-grading exercise Defendant's view, the job evaluation and re-grading exercise e three Defence institutions should have begun in 2014 as a · of addressing the challenges of equity in salary grade cture. e Defendant concedes that the evaluation and re-grading ~ c· se was not implemented due to austerity measures that ed in National Financial Crisis. e Defendant however maintains that there is no basis for the because the Circular did not provide for the graduation of hes as alleged. egarding the Plaintiffs claim that they should have been maintained on the payroll of Zambia Air Force or Zambia Army . The Defendant submits that the claim is untenable because Circular NO. B 1 of 2019 directed that Retirees could only be retained on the payroll if they had not been paid their lump sum by Public Service Pension Fund. Further that according to Circular Bl of 2019 any leave days that had accrued during an employee's period of employment and remain outstanding by the date of retirement cannot be termed as Pension Benefits as is envisaged in Article 189 (2) of the Constitution (Amendment) Act NO. 2 of 2016 -ll - OlNT SCHEDULING CONFERENCE BRIEF w ti ns " r consolidated lea, e to amend the Writ of nd tatement of Claim as granted and Orders for were issued. arties filed a Joint Scheduling Brief on 24th February 2024 as by Statuto Instrument NO. 58 of 2020. Scheduling Conference Brief outlined the undisputed a sand disputed facts as follows; I • e disputed fact is that the Plaintiffs tnow retired) were each e P o ed b Zambia Air Force and Zambia Army in various os· · ons and ranks and were promoted on various dates. 7.5 7.6 · s not disputed that the Government through Public Service anagement Division issued Circular NO. B25 of 2013 to revise salaries and conditions of service for all defence personnel hroughout Zambia. The disputed fact is the issue regarding notches, for the reason that the Defendant did not agree with the position of the Plaintiff. The second disputed fact is the Plaintiff's averment that it was custom and practice that when a Soldier or Officer in Zambia Army or Zambia Air Force is promoted, to a particular rank, that date of his or her promotion would be taken to be the incremental date and the following year, an officer a soldier would be upgraded to a higher notch automatically with an upward salary adjustment. I i disputed by the Defendant that after Circular B25 of 2013 w 7 .7 p · · s oare e Hundred and m bringing the t r Hundred and Ei ht l r c all imilarl ir um t n d mand d th t nin t ame Zambia A·r or filed h ir witn t h H 1 on behalf of their £ llow ffi r whil fl f \ intifl fr m 111 i \ Army filed their witne statem nts on th ir b h f ' n n h 1\f f their fellow Officers. 8.3 18T PLAINTIFF'S EVIDENCE The 1st Plaintiff in cause 2022 /HP / 183 KENNEDY BWALYA M PAMBA'S evidence in his witness statem nt d t d rd N , m \ 2023 is that he joined Zambia Air Force n l 't ,hm1 \ ) ) ' ' · -115- r n f Warrant Officer Class One (WOl) in 2012 n l July 2017. (Four years after Circular B25 of into force. · n iff states that he was in notch 2 with a basic salary of et his expected notch at retirement was notch 5 with e salary of K9, 572.00. so the l st Plaintiffs claim that despite retiring in 2017 he was - paid his pension benefits in 2020 (three (3) years after - · e ent) with a lump sum of Kl, 066,211.37 when the lump a notch 5) ought to have been Kl,191,289.21 resulting in an e payment of Kl25,077 .04. s Plaintiff ref erred to page 24 of the Plaintiffs Bundle of ent filed on 18th August, 2023 which is a letter dated 28th , 2017 reference MUM/935743/PF and titled "Voluntary Re irement: Yourself' The said letter states at paragraph 3 that "Upon your retirement you will be awarded benefits calculated in accordance with section 41 (b) of the Public Service Pension Act N0.35 of 1996. 8.7 According to the 1st Plaintiff, he held the rank of Warrant Officer Class One (WO l) for a period of 5(five) years but remained at notch 2 until retirement with a basic salary of KS,567 .00 instead of K9,957.00 at notch 5 as expected. The Plaintiff referred to page 46 of the Plaintiffs Bundle of Documents filed on 18th Arn:m <:.t ')fVYl \ th th t , t h u hi f l t t p f d l th August hi h 1 m nt Division Cir ul NO. B 5 f 1 whi ti, on l st S ptemb r 2013. ortant to point out that th Circular B 5 of O 1 that: 3 The revised grade structure has eleven (11} notches which o inately overlap at notch 6 (six}. The overlapping grade shall be implemented to address the challenges of pe or ance management and length of stay in one salary grade." . 0 I i 1 Pla intiff t stimon that th sal ry has l a s be n ti d t o a n o ching s stem in order to m intain seniorit and dis ipline in ZAF. He alluded to the pra ti where in the past when commissioned or non - commissioned officer would be promoted to a certain rank, the date of promotion was considered the date of salary increment and in subsequent years the offi er would b upgraded to a higher notch on the incremental date. n his as the 1 t Plaintiff was not upgraded as per practice after oming into force of Circular B25 of 2013 but was instead aded to a lower notch until retirement. upon realizing the discrepancies in the implementation of the hing s stem by ZAF, the 1st Plaintiff and his fell ow Plaintiffs a ed ZAF through indabas and written correspondence with a \ o address and resolve their concerns. Despite being assured that their concerns would be considered and resolved, no ction was done by ZAF by the date of the 1st Plaintiffs ment and up to the date of commencement of this action. s Plaintiff referred the court to paragraph 16 of his witness a ment, which is a computation of his expected dues, had his n fi s been correctly calculated at the 5th notch. . 4 H also stated that while in employment he was not accommodated Z bia Air Force and was instead being paid housing and utility which were stopped when he was removed from the payr 11. 8.15 That th c ndu t of ZAF of impl menting the in orre t n t hing system, resulted in him b ing underpaid in his salary, housing allowan s, leave days, w t r and utility allowan es which negatively affect d his pension b n fits whi h w re al ul ted on a wrong notch structur and salary s 1 at retir m nt. It is the 1st Plaintiffs further ev1 enc · d . 16 that ac ording to Publi 0 1 p ym nt of rvice Managem nt Division Cir ul r B9 of 2 . . .. - ' t - J1 . Th 1- intiff ref rr d to P fil d n 1 th Augu t, -4 f whi h n ri Management Division ircul r , NO . B ircular is reproduced as follows ; 'PA u. L.1..,.1.,T OF ALLOWANCES TO RETIRED EMPLOYEES RETAINED ON THE SEPARATEE'S PAYROLL The subject above refers -2 · Thia serves to inform the addresses that the Public Service Management Division Circular NO. B21 of 2018 that provides for payment of a basic salary only to retired employee• that are retained on the payroll until full payment of pension benefits has been amended. Retired employees that are retained on the payroll pending payment of pension benefits shall be entitled to receive emoluments comprising the last basic salary and all allowances they were receiving at the time of retirement. In this regard allowances that were withdrawn on 22D4 November, 2018 through the said Circular are hereby re -instated with effect from l•t November, 2020 3. Addreases are requested to bring the contents of this Circular to the attention of all employees under their supervision and retired public service employees who may be affected by this directive. Ugna 1ermanent Secretary ubllc Service Management Division" rll cd on th bov Circular which compelled ZAF o ~r r- -J19- Defendant be ordered to re- calculate his pension benefits and LPC and to pay the difference that was created by the Defendant's failure to implement the Circular and the notching system which consequently resulted in an underpayment of his pension and terminal benefits, salary and allowances. D EVIDENCE OF 2ND PLAINTIFF- EDWARD FALANGA 1 The 2nd Plaintiff's evidence is that he was employed by ZAF on 26th January, 1990, was promoted to the rank of Warrant Officer Class One on 2nd May, 2012 and was at notch 2 at the time of his retirement on 31 st December, 2017, having held the same rank for 6 (six) years. He refers to page 30 of the Bundle of Documents filed on 18th August, 2023. The said document at page 30 is a letter to the 2nd Plaintiff from ZAF, dated 27th December 2017 and referenced HQF/STN/936063/PF. In the said letter which is headed "VOLUNTARY RETIREMENT: YOURSELF" The 2nd Plaintiff was informed a paragraph 3 that; "upon your retirement you will be awarded benefits calculated in accordance with section 41 (b) of the Public Service Pension Fund Act. NO. 35 of 1996" The 2nd Plaintiff also referred to a copy of a payslip at page 59 of the Bundle of Documents filed on 18th August, 2023 which is dated November, 2017 showing that indeed by that date he was at notch 2. Th t his basic salary at notch 2 was K8, 567 yet he expected that } h uld have retired at notch 6 with a basic salary of K9 ,90 m ntrary t th pr ti that existed in ZAF before 2013 -J20- ,,· e,·etY y ar - - r Y th n t hin s st m was tied to salary progression and an ° ffi r would be upgraded from one notch to a higher h . h ourt was referred to pages 47 to 59 of the Bundle of umen s which are copies of the 2nd Plaintiffs payslips which s w v;· e e basic salaries and allowances that he was being paid emp oyment. a when the Circular of 2013 came into effect ZAF did not pgra e him into his rightful notch by grade and rank but he was ' P o ch 1 from the previous notch 2 he had been promoted to before 20 3. is the 2nd Plaintiffs evidence that Circular NO. B25 of 2013 was a complete departure from the existing notching system that ZAF had been applying, compelling him and other officers to engage ZAF through indabas and correspondence to resolve the discrepancies and differences. That ZAF assured them that the issue would be resolved, but to no avail. The 2nd Plaintiff states that he was underpaid in salaries, housing allowances, leave days, water and utility allowances as a result of incorrect implementation of the notching system resulting in under payment of pension and terminal benefits at retirement. The 2nd Plaintiff testified further that although he was retired on 31st December, 2017 he was partially paid his pension benefits in Novem ber, 2020 and the balance in 2021. r aph 16 of his witness statement the 2nd Plaintiff presented ,- , 1 • _ - - - ~-+ ,...f i, ; C' lnnin c:::nm hf'nP.fits . -J20- in 2016 contrary to the practice that existed in ZAF before 2013 whereby the notching system was tied to salary progression and every year an officer would be upgraded from one notch to a higher notch. The court was referred to pages 47 to 59 of the Bundle of Documents, which are copies of the 2nd Plaintiffs payslips which show the basic salaries and allowances that he was being paid while in employment. That when the Circular of 2013 came into effect ZAF did not upgrade him into his rightful notch by grade and rank but he was ' put in notch 1 from the previous notch 2 he had been promoted to before 2013. It is the 2nd Plaintiffs evidence that Circular NO. B25 of 2013 was a complete departure from the existing notching system that ZAF had been applying, compelling him and other officers to engage ZAF through indabas and correspondence to resolve the discrepancies and differences. That ZAF assured them that the issue would be resolved, but to no avail. The 2nd Plaintiff states that he was underpaid in salaries, housing allowances, leave days, water and utility allowances as a result of incorrect implementation of the notching system resulting in under payment of pension and terminal benefits at retirement. The 2nd Plaintiff testified further that although he was retired on 31st December, 2017 he was partially paid his pension benefits in November, 2020 and the balance in 2021. At paragraph 16 of his witness statement the 2nd Plaintiff presented hi mputation of the under payment of his lump sum benefits. -J21- 9.10 The 2 nd Plaintiff brought to the court's attention the fact that from time immemorial, ZAF has never used a performance based evaluation as criteria for upgrading an officer from one notch to a higher notch and evaluation was only done when promotion from one rank to another was being considered. That it is a policy that a commissioned or non- Commissioned officer should be automatically upgraded from one notch to a 11 - higher notch on the anniversary of one's date of promotion. 9.12 The 2 nd Plaintiff, like the l st Plaintiff was not accommodated in a ZAF house so he was receiving a housing allowance and utility allowance which stopped being paid upon retirement and upon being removed from the payroll in December 2020 despite the under payment. 9. 13 The 2 nd Plaintiff claims that due to the underpayment of his pension and terminal benefits he ought to be retained on the payroll until the underpayment is resolved. Further that the allowances that were removed under Circular B21 of 2018 should be re-instated in accordance with Circular NO B9 of 2021. 9.14 The 2nd Plaintiff prays for an order that the Defendant re-calculates his pension benefits, LPC and pays the difference caused by ZAF's failure to implement the correct notching system. That the Defendant also be ordered to retain the 2nd Plaintiff on the payroll until the issue of underpayment of pension and terminal benefits is resolved. .0 3RD PLAINTIFF'S EVIDENCE - CHARLES MUKUKI Th 3 rd Plaintiff was employed in ZAF on 16th June, 1980 , was d . _ 2006 to the rank of Warrant Officer Class On 1n -J22- and was retired on 24th May, 2016, having remained in that rank for ten (10) years. That his basic salary was KS, 567.00 as opposed to an expected basic salary of Kl 1, 268.00; had he been placed on the correct notch of 6. A copy of his payslips dated September, 2013 is at page 60 of the Bundle of Documents. The 3rd Plaintiffs evidence is that Circular B25 of 2013 revised the salaries and conditions of service for all defence personnel by creating a maximum notching system of up to 11 notches from the previous maximum of 6 notches which existed before 2013. 3 That however, ZAF did not comprehend the contents of the Circular of 2013 by upgrading him to a higher notch but instead put him in a lower notch until his retirement. That the conduct of ZAF resulted 1n an underpayment of his pensions and terminal benefits. In the 3rd Plaintiffs view the Circular of 2013 was a complete departure from the existing practice by ZAF of the notching system. He and other officers engaged ZAF through indabas in order to correct the discrepancies and differences created and was assured by ZAF that the issue would be resolved but by the date of this action, there was no response from Zambia Air Force . . 6 That apart from under payment of basic salary the 3rd Plaintiff was underpaid his leave days . . 7 Although he was retired on 24th May, 2016 he was only paid his pension benefits in 2018 of which the lump sum was Kl, 140.808.83 and not the expected sum of Kl ,518.417 .32 thereby being deprived of a difference of K377,608.49. -----------------------~ -J23- 8 The 3rd Plaintiffs evidence was similar to that of the 1st and 2nd Plaintiffs in terms of what he perceived to be the practice in the notching system that ZAF had maintained since time immemorial. .9 That he was under paid his basic salary from 2013 until May 2019 when he was removed from the payroll by ZAF yet his benefits have not been paid in full . . 10 He prays that the Defendant be ordered to pay him the difference of what is due to him as a result of under payments . . 0 EVIDENCE OF 4TH PLAINTIFF - FRIDAY MAYUNGO MATONGO .1 The 4th Plaintiff joined ZAF as Defence personnel on 1st October, 1982 was promoted to the rank of Warrant Officer Class One (WO l ) and was retired on 5th January, 2017. He referred to his letter of Mandatory retirement dated 11 th January, 2017 reference HQAF/STN/934522/PF. His benefits were to be calculated in accordance with Section 41 (b) of the Pubic Service Pensions Act NO . 35 of 1996. 1.2 At page 63 of his Bundle of Documents, is a payslip showing that he was in notch 2 earning K8,567.00 as a basic salary as at 1.3 1.4 1.5 January, 2017. That after Circular B25 of 2013 came into effect he was not upgraded to a higher notch by ZAF but was instead put in a lower notch resulting in a wrong calculation of his pension benefits at retirement. That before the Circular of 2013, the 4th Plaintiff was in notch 3 yet he was retired in notch 2. t. . h That e par 1c1pa when engaging ZAF to resolve the discrepancies of underpayment ted in the indabas with his fellow affected officers -J24- and being placed in wrong notches. That despite assurances by ZAF that the issue would be resolved, by the date of this action ZAF had not resolved the concerns of the Plaintiffs. 1.6 The 4th Plaintiff presented his computation of the amounts due to him at paragraph 16 of this witness statement. That from 2013 to April 2019 when ZAF removed him from the payroll he had not been paid his benefits in full . . 8 he 4th Plaintiff's evidence is that he ought to have been maintained on the payroll until his pension and terminal benefits were paid in full with the allowances which were re-instated under Circular NO. B9 of 2021 which directed employers to pay allowances in addition to the basic salary . . 1. 9 The 4th Plaintiff beseeches the court to order the Defendant to re calculate what is due to him as a result of the underpayment. l 2.0 EVIDENCE OF 5m PLAINTIFF - PATSON SAMSON SIAMBULI l2.1 The 5th Plaintiff was employed in ZAF on 1st June, 1989, was promoted to the rank of Warrant Officer Class One in 2014 and was retired on 30th November, 2017. At page 26 of the Bundle of Documents is the 4th Plaintiffs letter from ZAF dated 11st September, 2017 reference HQAF/STN/935700/PF. At paragraph 3 of the letter in which, the 5th Plaintiff was informed that his benefits would be calculated in accordance with Section 41 lb) of the Public Service Pension Fund. 2. 2 His circumstances were the same as the l st to 4th Plaintiffs in that his basic salary was K8, 567.00 against the expected sum of K9, 237 .00. That he too suffered a downgrading in the notch structure in tead of an upgrade, after the Circular of 2013 -J2S - tirin 1n r by y F. 1 he was onl d ' fl; p d his benefits in 2020 ren e of K83. 07 .46 due to wrong ai . ·ntiff vid n was that he . t ucting enj Y th all . was also deprived of an owances which were re-instated for - retirees under Circular B9 of 2021. p . tiff prays that the court Orders the Defendant to re- · s pension benefits and LPC and to pay the difference in . e - s resulting from wrong calculations b ZAF. ~---.-·-- CE OF 6TH PLAINTIFF - WANDER MABINDA was employed as a ZAF Officer on 10th arch, romoted to the rank of Warrant Officer Class One was retired on 30th June 2017. At page 33 of the e ts is letter to the 6 th Plaintiff dated 21 st June, e HQAF/935538/PF. At paragraph 4 of the letter the advised that his benefits would be calculated in section 1 (b) of the Public Service Pension A.ct demonstrated in a pa slip dated June O l" at e Bundle of Documents that his salary at notch 2 was However he claims that his expected salary after 2013 0 a notch 6. o what ·s due o him 1s at paragraph 16 of his e e a ement of Z F with th rs ·126- through indabas and other written correspondence but no result was yielded . .., - The 6th Plaintiff testified that the implementing of an incorrect notching system by ZAF resulted in under payment of salaries, housing allowances, leave days, water and utility allowances which caused underpayment of his pension and terminal benefits. 3.6 The 6th Plaintiff testified further that upon retirement on 30th June, 2017 he was paid pension benefits in 2020 of an amount of Kl 141,249.01 instead of Kl,373.982.13 resulting in a difference of KlB0,773.12 of unpaid sums. 3.7 A computation of what was due to him is at paragraph 16 of the 6th Plaintiff's witness statement. 13.8 That he was deprived of his allowances after the issue of Circular NO. B9 of 2021 which re-instated allowances. 13.9 He prays that the court orders the Defendant to pay the difference due to him as a result of the ZAF's conduct which resulted in underpayment. 14.0 EVIDENCE OF 'PII PLAINTIFF- GILBERT NJOBVU 14.1 The 7th Plaintiff, joined ZAF on 6th February, 1984, was promoted to the rank of Warrant Officer Class One (WO 1) in 2009 and was retired on 14 th June, 2017. A copy of his letter of retirement dated ll th January, 2017 and reference HQAF/STN/934522/PF is at page 24 of the Bundle of Documents. His retirement was mandatory having reached the statutory retirement age of 55 years and his benefits were to be calculated in accordance with section 41 (b) of the Public Pension Act NO. 35 of 1996. -127- f h at he held the rank of (WO 1) for . ,1,J . of retirement at notch 2 with a b to h1s expected salary of KlO, 242 _00 _ . a penod of 7 years until th . as1c salary of KB 567 00 . e time compared • , J4.3 That after 2013 he was placed · tn a ower notch by grade and rank a opposed to a higher notch. 14.4 4. That ZAF's conduct f · tmp ementtng the incorrect notching system resulted in the 7 th Plaintiff being underpaid in salary, housing . . allowance and utility allowance as well as leave days. Despite retiring on 14th June, 2017, he was only paid his pension benefits the following year in 2018. That the sum paid was Kl, 0 35,704.96 when it should have been Kl, 283,167.37. 14 .6 A computation of what is due to him is at paragraph 16 of the witness statement 14 . 7 That he ought to have been retained on the payroll until his benefits were paid in full. 14.8 He beseeches the court to Order the Defendant to pay the difference created by ZAF's failure to implement the correct notching system which ultimately resulted in the 7 th Plaintiff being underpaid. 15. 0 EVIDENCE OF gm PLAINTIFF - CHRISTOPHER KAVUNGAMA PHIRI 15.1 The gist of the 8 th Plaintiffs evidence as stated in the witness statement is that he joined ZAF on 24th May, 1993, was promoted to the rank of Warrant Officer Class Two (WOII) in 2012 and was retired on 31 st May, 2016. However a document at page 29 of the undle of Documents issued by PSPF reveals that the 8th Plaintiff ir d on 15 h September, 2016. -J28- J ,. P rhat he was in notch 2 from th d retirement contrary to the you to a higher notch every e ate of promotio . practice by ZAF whi h year. t h n ° t e date of c would upgrade 1 . 15.4 15 .5 The 8 t h Plaintiff referred to page 77 of th B dl · h • h w lC 1S a copy of his p e un e of Documents ays tp ated March, 2016 and showing r d notch 2 as his grade. That at notch 2 his basic salary was K7, 118.00 yet he expected that his basic salary would be K7, 675.00. That after Circular B25 of 2013 came into effect to revise the salaries and conditions of service for defence personnel, the 8th Plaintiff was not moved to a higher notch but was downgraded to a lower notch. That he was in notch 4 before the Circular came into effect but was put in notch 2. That this was contrary to the practice that ZAF had maintained regarding notches, whereby every year an Officer would be placed on a higher notch after promotion. 15 .6 The 8 th Plaintiff testified that Circular B25 of 2013 was a complete departure from the previous notching system for ZAF Officers. 15. 7 That an indaba was held where ZAF was engaged to clarify the discrepancies and differences that Circular B25 of 2013 created with the notching system but it proved futile despite assurance from ZAF. 15.8 That although he was retired in May, 2016 he only received his pension benefits in 2017 in the sum of K915,185.69 instead of K986,801.88 as expected pension payment. That this resulted in an underpayment of K71, 616.19. A computation of his expected payment is at paragraph 16 of the witness statement. 'I . t f I I f i 1rt 11 l ·t ~ J ~-.,.,.:_ -- ---- - - • - t. tnk ,r Fl ll t .. lt~ ,l fl · nn ·nt'. u ,.\ t ·tit 't ''tl t ( l " whi I \\ S lSSU F i n t ut in :ll \n~r n t h t 1 1.ft r em r 1 .,. she \\ . s only an n1 unt of K44 847.34 KS 1 44 . 9 thereb being _!._ :.:=;--=~=== : ra: s~ e be ·eve is due to her was shown at ,., . 1 16 .8 17.0 17.1 -J30- rhe 9 t h Plain tiff also t d statement that ZAF of 2013 came in to f'C' estified at un erpaid her s . e 1ect until F paragraph 20 alary from the time th f o her witness . e Circular removed from the payr 11 ebruary, 2019 when sh o yet her benefi e was She prays that the of h court Orde er benefits caused b Z th ' its were not paid in full . rs e Defendant to pay the difference mp ement the correct Y AF s failure to i . notching system. PLAINTIFF'S EVIDENCE FOR ZAMBIA ARMY The 1st Plain tiff in Cause 2022 / HP/ 1842 was DARLINGTON KAFWELA MALIPENGA who was employed in the Zambia Army on 28th April, 1987, was promoted on 1st March, 2005 to the rank of Warrant Officer Class One (WOl). 17.2 According to his witness statement filed on 5th April, 2023 , he remained in that rank of (WO 1) until his retirement on 4th April , 2016. In Zambia Army, a system of notches had been used, which upgraded an officer from one notch to a higher notch with a 17.3 17.4 7. corresponding salary increment. That Circular B25 of 2013 revised the salaries and conditions of service by revising the notching system from a maximum of 6 notches to a maximum of 11 notches. That when the Circular of 2013 came into effect on 1 st September, 2013, the Zambia Army did not upgrade him to his rightful notch but downgraded him instead to a lower notch. That although he was retired m 4 Apn , , . . th ·1 2015 his pension benefits r only paid in July, 2017 using notch 1. - -131- fh Bt his pension benefits in 2017 amounted to K863, 751.33 when the amount should have been Kl, 215,358.56 had the correct notch been applied. He produced a computation of what is due to him at paragraph 16 of his witness statement. · .7 That he had engaged the Zambia Anny on 3rd August, 2017 after receiving his lump sum regarding Zambia Army's wrong computation. That the last meeting at Zambia Army Headquarters was on 21 st November, 2021. 7.8 According to the }st Plaintiff, the Zambia Army did not comply with the directives in Circular B25 of 2013 which Circular aimed to cure the long stay of personnel on the same notch. 7. 9 That during the monthly indabas with Zambia Army, the 1st Plaintiff and his fellow officers were assured that the discrepancy would be addressed yet this did not happen. 1 7 .1 O It is the 1st Plaintiffs evidence that he expected that Zambia Army would rectify the error in the notching system by placing him in the correct notch. However, the conduct of Zambia Army resulted in his underpayment in salaries, leave days and other allowances. 17.11 That since he has not been paid his pension benefits in full, Zambia Army ought to have maintained him on the payroll until the benefits are paid in full. 17.12 He avers that he is entitled to all the reliefs sought. 18.0 2ND PLAINTIFF - NEVY WISHMAN MUKWEMBA 18. l The 2nd Plaintiff was employed in Zambia Army on 17th February, 1986, was promoted on 7th August, 2007 to the rank of Warrant Officer Class One (WO 1) and remained in that rank for 11 years until his retirement on 1st March, 2020 on notch 2. -132 - f hf'lt throughout his employment, the Zambia Army had been using a notching system which provides for salary progression every year and upgrading to a higher notch. After the Circular he was only upgraded once in 2016 when his salary was also upgraded. That when he was upgraded to a higher notch in 2016 there was no p erformance evaluation done. That at retirement, he was at notch 2 with a basic salary of K9, 524.00 yet he expected to be at notch 11 with a basic salary of K12, 381.00. That despite being retired in 2020 he was only paid his pension benefits in February, 2022. A computation of his expected lump su~ is at paragraph 14 of the witness statement. ft is the 2nd Plaintiff's evidence that a performance evaluation has never been used in the Zambia Army, as a criteria of upgrading a :;oldier from one notch to a higher notch. In fact, a soldier would be 1pgraded to a higher notch automatically on the anniversary of )ne's date of promotion. 1.fter Circular B25 of 2013 came into effect, the 2 nd Plaintiff and 1ther officers engaged Zambia Army regarding the discrepancies in .1e implementation of the notching system that the Zambia Army ssured the 2 nd Plaintiff that the anomalies would be addressed and ~solved but to no avail. 1e 2 nd Plaintiff claims that he should be paid the difference that :1s occasioned by the underpayment. -133- PLAINTIFF - MARK KAMPAMBA yd Plaintiff joined Zambia Army on 17th February, 1986, was J,:P r 11 e ' promoted to the rank of Warrant Officer Class One (WO 1) on 1st October, 2008 and was retired on 31 st August, 2016 after serving in that rank for 9 years. 2 That at the time of his retirement he was in notch 2 with a basic 19. salary of KB, 567.00 yet his expected notch at retirement was notch 9 with a basic salary of KIO, 913.00. 19. 3 That when Circular B25 of 2013 which revised salaries and conditions of service for all defence personnel, he was not upgraded to a higher notch but was only upgraded once in 2016. 19.4 That the notching system of salary progression and yearly upgrading from one notch to another notch has always been used I I by Zambia Army. 19.5 That the implementation of Circular B25 of 2013 by Zambia Army resulted in discrepancies and differences as the Circular was a complete departure from the previous notching system. t 19.6 That the 3rd Plaintiff and his fellow soldier engaged Zambia Army regarding the discrepancies and were assured that the issue would be addressed to no avail. 19.7 That the implementation of an incorrect notching system by Zambia Army caused the 3rd Plaintiff to suffer underpayment in leave days, water and utility allowances housing allowances, thereby causing his pension benefits to be calculated on a wrong notch structure. 19.8 It is the 3rd Pl · t·~r am lli s evidence that although he retired on 31st August' 20161 he was only paid his pension benefits on 31st -J34- J f1Ll a ry, 2018. That his 1 ump sum wa o , 49 1,152.32 had th s Kl, 170,594 88 . e correct notch b · A computation of h' een used at ret' irement. is expected dues . . instead of at paragraph 16 of his W1tness statement · That he and his colle agues engaged the Z the underpayment as is evid ence from the M" d . s t November 2021 page 79 to 83 of th April, 2023. "th . W1 Zambia Army Offi . e Plaintiffs Bundi mutes of a meeting of icers. The Minutes are at f D e o ocuments filed on 5th . ' amb1a Army concerning . "f The 3rd Pl · amt1 f seeks a Court Order that the Defendant pays the d1ff erence which was created by its failure to implement the correct . . notching system resulting in under payment of his pension benefits. 4TH PLAINTIFF - CHISOYA CLIFFORD The 4 th Plaintiff, was employed in the Zambia Army on 27m July, 1998, was promoted to the rank of Warrant Officer Class Two (WOii} and retired on 30th September, 2018 at notch 2. That his basic salary at notch 2 was K7, 609.00 yet his expected basic salary was KB, 206.00 at notch 4. That Circular NO. 25 of 2013 from Public Service Management Division revised the salaries and conditions of service for Defence personnel and revised the notching system from 6 to 11 notches. u 19.11 20.0 20.1 20.2 20.3 20.4 That however, when the Circular came into effect, the Defendant did not upgrade the 3rd Plaintiff to a higher notch but instead placed him in a lower notch, which notch he had been before 20 · Tha t he was only upgraded to a higher notch in 2016. '.7 20.8 2 0.9 20.10 20.11 -J35_ rna t in 2019 when his . . public Service Pension Fu incorrect notch · pension benefits nd, the cal 1 . Were calculat d by cu ations were mad e the . e using an That consequently h Uti·11·ty all e was underpaid h' b 0 wance and h is ous1ng allowance · esp1te retiring on 30th S eptember 2018 h , h . · asic sal pension benefits on 19th M That d arc , 2021. ary, water and e was only paid his The 4th Plaintiff referred to D ocuments dated 5th Ap ·1 202 page 24 of the Plaintiffs Bundle of K901,488 24 · 3 to demonstrate that he was paid w en it s ould have been Kl,027,980.07. That he n ' h h · was underpaid by Kl26, 511.83. A computation of what is due to him is at paragraph 16 of the witness statement. That he was among the officers that engaged Zambia Army at some indabas regarding the discrepancies and was assured that the matter would be addressed and it would revert. However, to date the Defendant has not responded to the 4th Plaintiff nor his fellow soldiers. 20.12 He prays that the Court Order that he be paid the difference. 21.0 21.1 5TH PLAINTIFF- MATALISE JETHROW The 5 th Plaintiff was employed in Zambia Army on 28th May, 1993, was promoted in 2003 to the rank of Staff Sergeant (SSGT) and was retired in 30th June, 2016 at notch 2 having served in that rank for 13 years. That when he retired his basic salary at notch 2 was K5, 9l4.oo 1.2 when it should have been KB, 544.00 at notch 11. ·J 6- 3 am , s was th ow r not h · tg on' to ah ' h '/ I rt wh ·1.1 ' , 11)£!. l'ft I • 1 o a. h1 h r not h 'ir l1 lat . d of 1>ut wn~ iown T d d to a I f'" , c iect, h was into . not t1 e of Z mbia Army , pr T IH.t lH wns only pgi· d d Th,t t· h, h d h Id th . . < f h t r tir 111 nt. Th t 1 . 1 r~tit 111 nt in t d . f o . 1a11k of taff S r ant for 13 r not h n in 2016. . a 11s ump sum mount d t K I 50 7 8.45 ausin years by the time O 70 ,657.51 at to suffer an him rpayin nt of I 41 141.44 h d t.1, b, n pl u1 11 t h. d on th correct l. 1. 7 th lain tifi r f rr d th ourt to p r r ph 1 of his witness t t n1 nt whi his mput tion f wh ti du t him . 1a"-s for 111 Ord 'r that th H t hin1. DEFENDANTS EVIDENCE fi 1 da1 r - 1 ul t wh tis du . 1 Th f; ndant opt d to prod 1 o ly on wi n in th n m f LT COLONEL MIKE MWANZA puty Dir f L d P 11 i n,. fro111 Z unbia Air For dqu rt r B f 11d nt wl n ir ul r f . 1 w sis u d r nn to b pl a d it notch 1 t 11 ni 1h t in tJ 1 u 1 t r . fr 11d nt r .. )h ed fund in · fr 1n th J11 r nn 1 fr 111 not h 1 to not h rnm. nt pl 1n th )S tl1 ' lt ' l th tc chni ' ll S(' 11 in higher n t hes. Th t t th t ft nd 1nt th \t. the ir ulw 11( t it) tht ti.t n l f{ J tn \ c. n1 n t fr n1 nt: n t h t n th t, n r -137- e S the Circular provide fo h d0 was to be implemented • r ow the· b Jo evaluation and re-gr ct· a tng He denied that the Plainf ff' reason that it was I s were unde . correctly calculated they were in. rpa1d their lump sum for th e accordmg to the notches . That the implementation of the r all service person 1 . ev1sed salary structure meant that ne were placed in notch 1 of their respective sa ary grades bee h . ause t e new salaries were higher than the highest notch in the existing structure. It is the Defendant's evidence that Circular B25 of 2013 migrated all personnel to higher salaries in the revised structure, regardless of the notch an officer was previously in, therefore no personnel was disadvantaged as a result of the revised salaries. 22.6 22.7 22.8 That with regard to an annual increment, the Circular provided for an overlapping grade structure at notch 6 which was to be implemented "to address the challenges of the performance management and the length of stay in one salary grade." 22.9 That the Circular of 2013 introduced a performance based incremental system and removed the automatic annual increment system that had been existing before 2013. 22.10 The Defendant testified that the notching system across the public service was not fully implemented due to austerity measures in the nation. 22.11 On the claim by the Plaintiffs to remain on the payroll where they have not been paid their pension lump sums, the Defendant conceded to that position. -J38- er amounts such as 1 the Plaintiffs' claim for oth on other allowances, in line with c· trcular B 1 of 2019 d testified that such allowan ces O not constitute . d and Circular B 1 of 20 19 should be retained on the payroll. eave days and ' the Defendant penston benefits an Circular 821 of 2018 clarified on who · 23.0 2 3.l 23.1.1 23.1.2 FINDINGS AND ISSUES FOR DETERMINATION Upon considering the evidence of the Plaintiffs and the Defendant I find the following to be undisputed facts ' The Plaintiffs were all Defence Personnel who were employed in Zambia Air Force and Zambia Army on various dates. I find that before 2013 a notching system existed in the Zambia Air Force and Zambia Army. This is evidenced by the Harmonisation Report which was succeeded by Circular B25 of 2013 which addressed the issue of salaries and notch structure at Appendix "A" of the Circular. 23.1.3 I also find that the Plaintiffs upon retirement were not paid their pension benefits promptly as required by Law. This is evidenced from one of the witness statements of the Plaintiffs at page 24 of the Plaintiffs Bundle of Documents filed on 5th April, 2023. The said document is a statement for CHISOYAH C. CLIFFORD showing what was paid to him by Public Service Pension Fund. 23.1.4 I also find as a fact that prior to this action, the Plaintiffs engaged the Defendant to address the discrepancies. This is evidenced from the Minutes of a meeting with one of the Plaintiffs Malipenga (Rtd) and the Adjutant General, Brig. Gen M. N'guni held on 1st November, 2021. -- - --- - -)40- . n 187 ( l) and (2) provides that 5ect10 , l) An employee, including a public officer and constitutional officer holder has a right to a pension benefit. 2) A pension benefit shaU not be withheld or altered to that employee's disadvantage. Further Section 189( 1) and (2) provide that; 1) A pension benefit shall be paid promptly and regularly 2) Where a pension benefit is not paid on a person's last working day, that person shall stop work but the person's name shall be retained on the payroll until payment of the pension benefits based on the last salary received by that person while on the payroll 25.3 In its wisdom the Legislature found it prudent to define a pension benefit at Article 266 (the definition section) of the Constitution as; "Pension benefit" includes a Pension, compensation, gratuity or similar allowances in respect of a person's service" 25.4 An employer contravenes Article 189 (1) and (2) of the Constitution if it does not pay the employee's pension benefits promptly and 25. S where an employer removes an employee from a payroll before the pension benefits are paid The Constitutional c Chulu V Anti-Corruptio C our m t e case of Lubunda Ngala and Jason t · h s . . n ommission provided guidance on the phrase "promptly and re l " gu arly and stated at page J34 that; -J41- ,,the word "promptly" used in Article 189 (1} mean, that the benefit must be paid without delay while "regularly" means that it must be paid to the beneficiaries when due and not intermittently" In the case in casu the Plaintiffs have stated in their claim af when they were retired, their benefits were not paid ro p _ ·. Kennedy Bwalya Mpamba and the other 527 from Zambia Air Fo e and Darlington Kafweta Malipenga and 796 Others were paid e pension benefits two or three years after retirement. 1 The Defendant did not dispute this fact in its pleadings nor did · dispute that the Plaintiffs were removed from the payroll . . 8 I find that the conduct of the Defendant of not paying the Plain · promptly and of removing the Plaintiffs from the payroll upon retirement was in breach of Article 189 ( 1) and ( ) f th Constitution and is an infringement of the Plaintiffs' ri hts s guaranteed by the Constitution. 25.9 Therefore I Order that the Plaintiffs were ntitl d t r m in n the Zambia Air Force and Zambia Army payrolls fro.m th d t-• f th ir retirement to the date the terminal b n fits w r, p id. l furth r l Order that the Defendant shall . is entitled to from the dat . of . t' . u a and pa · v h 1.t e h l t . ll 'mc.nttoth dlt•ofply,ue nt • pension benefits. .1 ffi er , . f . 26.0 UNDERPAYMENTS AT INCORRECT NOTCHES RETIREMENT OCCASIONED BY 2 .1 Th issu"ofb· lh , D fi ndanl is tu IIH·orrt' ·t notclws rn I i lied l ,v ing und ·rpuid du ' at th h 'nrt or thi::, di.' 1H1l,· . -J42- f/1e plaintiffs have stated that the notching system has existed in . , · zambia Air Force and Zambia Army since time immemorial. That when one was promoted to a certain rank, the date of promotion j was taken to be the date for an automatic upgrade to a higher notch. The Plaintiffs have relied on copies of their payslips at pages 33 to 43 of the Plaintiffs Bundle of Documents which show that the incremental date for Darlington Kafwela Malipenga's was 1 st April. At page 42 is a payslip dated 30th September 2014. The latter is a payslip issued after Circular B25 of 2013 came into effect on 1st September, 2013. Darlington Kafwela Malipenga was retired on 4 th April, 2015. According to Appendix "A" of Circular B25 of 2013 the entty point for Warrant Officer Class One (WOl) is notch 1 with a salruy of KB, 231.751. The computation done by the Plaintiff at paragraph 16 of his witness statement show that at retirement he ought to have been at notch 11 with a basic salruy of Kl 1,582,451. 26.3 The Defendant did not address the issue of notches save to state that notches were introduced after 2013. I hasten to state that, in fact notches, have always been there, as correctly stated by the Plain tiffs. 26.4 In my view it would be speculative and presumptous to accept the Plaintiffs' computation regarding underpayments for the reason that there is no evidence before Court to show that a Plaintiff had reached notch 11 by the date of retirement and the same applies for all the Plaintiffs. Therefore the issue of notches ought to be rectified by the Defendant whose duty it was to comply with the Circular of 2013 by undertaking job evaluation and re-grading exercise. The Defendant was derelict in its duty when it did not undertake any -)43- ·ob evaluation and re-grading exercise which was to be carried out J 8 5 an ongoing exercise as per paragraphs 9 and 1 o of Circular B25 of 2013, which read; . . "9 Government shall carryout a Job Evaluation and Re grading Exercise (JERGJ for the Three (3) Defence institutions in 2014 in order to address the challenges of equity in the salary grade structure." "10 The rationalisation and harmonisation exercise is an ongoing process and all implementation challenges should be brought to the attention of the Division." Reverting to the Defence filed on 11 th February, 2023 the Defendant I states, inter alia, at paragraph 3 that; " ...... prior to 2013, progression in salary was based on annual progression effected on the anniversary of an employee's substantive promotion date but the said annual notch increment ceased and instead increments were to be performance based under the revised system effected vide Circular NO 25 of 2025." 26. 5 The Defendant goes on to state in the same Defence of 11th February, 2023 at paragraph 9 that ; "........ that the Circular in issue did not provide the criteria to follow for which the Plaintiffs were ex ected to migrate in subsequent years to the next notch. Consequently the 1•t Plaintiff cannot claim to have expected an upward adjustment in notch and emolument as calculated ,, ·········· - 111 reaction to the Plaintiffs' clai until payment of pension b J fi f . m o being main tai ene its, the Defe d ned on the payroll 26.7 This in my view is an d paragraph 15 of its Defen b "Th Pl e payroll until p . ce Y stating that· ' n ant conceded at aintiffs were O 1 n y required to be maintained on th ayment or their pension benefits" a mission by the Defendant that the Plaintiffs • e . should have been r t · d e rune on the payroll after they were retired until their pension benefits were paid in line with Article 189 (2) of the Constitution. 26.8 It was also the Defendant's contention that the Plaintiffs were not entitled to service allowances, as claimed, which were withdrawn under Circular B21 of 2018. The Defendant opted not to refer to Circular NO B9 of 2021 which reversed Circular B21 of 2018. Circular NO. B9 of 2021 stated that retired employees that are retained on payroll pending payment of pension benefits shall be entitled to receive emoluments comprising the last basic salary and all allowances they were receiving at the time of retirement. The Circular B9 of 2021 went on to state; "In this regard allowances that were withdrawn on 22nd November, 2016 through the said Circular are hereby re instated with effect from 1st November, 2020." 26. 9 It is therefore evident from Circular B9 of 2021 that the allowances were re-instated and the Defendant cannot state that the Plaintiffs are not entitled to service allowances. I note however that while the Circular B9 of 2021 had retrospective effect to 2020, it is not • • - __J -J45- -der that The Defendant o1 plaintiff allowances that ar d re-calculates . and pays the affected and allowances for not h arrears of salaries second relief is granted. rune on the payroll. The e ue in addition to . av1ng been ret . d 26.10 At relief (iv) of the Plaintiffs cl . . ins a ement on th Z b' t t . . rum w ere they desire immediate re- . am ta Atr Force and Zambia Army payroll e h until their pension b fit ene 1 s and terminal Benefits are paid in full and further payment f o sa ary arrears from the date they were removed from the payroll to the date their terminal benefits will be paid in full, this claim is like a two- edged sword in that on the one hand, the Plaintiffs wish to be retained on the payroll until all their benefits are paid in full while on the other hand, they desire to be paid salary arrears from the date they were removed from the payroll to the date the benefits were paid . Granting the relief in the manner it is pleaded with result in the Plaintiffs earning money from the payroll and also getting arrears for when they were removed from the payroll. 27.0 I take cognisance of the fact that they received their terminal benefits and pension benefits, for which they claim was less than what ought to have been paid, but to order that they be retained them on the payroll would amount to unjust enrichment if they also seek the relief of arrears. 27.1. I therefore shall not grant the relief of immediate re-instatement on the Zambia Air Force and Zambia Army payroll but grant the relief of payment of salary arrears from the date they were removed from the respective payrolls. The reliefs at (iv) is not granted. -J46- I1 relief (v) where the Pl . . service allowances and . an Order for r -inst t the dates M they we re removed anagement Division Cir I . in hne . ·th WI e1r payslips it calculat d f a ement of . rom e Public S rvice atntiffs seek arrears on th . sought but Order that th all instated on th • e owances and cu ar 89 of 2021 I h e1r payslips but shall be promptly paid ereby grant the relief arrears shall not be re- I separate y from the payroll. 27.3 On relief (vi) in which th Pl . . runtiffs seek an Order that the Plaintiffs be paid their difference in salary calculated up to the right notch at e retirement as salary arrears, I Order that the Defendant reverts to Circular B25 of 2019 and its predecessor the Harmonisation Report in order to fulfil the Directive of Circular B25 of 2019. 27.4 The spirit of the Circular was to provide for progression in terms of emoluments for each officer and to avoid long stay on one notch. At paragraph 3 of the Circular the Public Service Management Division stated; "3 The revised grade structure has eleven (11) notches which predominantly overlap at notch six (6). The overlapping grade structure shall be implemented to address the challenges of performance management and len th of sta in one sala rade." 27.5 It is incumbent upon the Defendant to make good on what it ought to have done after 2013 in terms of addressing the challenge of length of stay in one salary grade and not to state "that the Circular of 2013 does not specify the criteria for movement from one notch another nor does it nrr n- r~rl - ~-- L ... - -J47- progression and where the Defend t . an is not clear about Appendix . "A" I Order that it seeks clarification and guidance from Publ' IC Service Managem 1v1s1on and thereafter pay the Plaintiffs what to· · · en is due to them in line with Appendix "A" On interest, I Order that interest be paid to the Plaintiffs at the Bank of Zambia average lending rate prevailing on the date of this judgment. 27 .6 In conclusion, I am satisfied that the Plaintiffs' have proved their case on a balance of probabilities regarding reliefs (i), (ii), (iii) and (vi). For relief (iv) and (v) concerning notches, they are not granted for the reason that the Defendant is first required to seek clarity from Public Service Management Division before it can pay the Plain tiffs'. 27 . 7 Costs shall be borne by the Defendant, to be taxed in default of agreement. Leave to appeal is granted. DELIVERED AT LUSAKAT S 18™ DAY OF AUGUST, 2025 I _ · 1' ('. J .................. ................ . . . . ·, ............... . HON. JUSTICE 'G. NlltfMO- 'SALA$INI HIGH COURT JUDGE