Moffat B. Mbanga v Public Service Management Division and Anor (Appeal 51 of 2002) [2003] ZMSC 145 (4 April 2003)

IN THE SUPREME COURT OF ZAMBIA Appeal No. 51A/2002 HOLDEN AT KABWE AND LUSAKA (CIVIL JURISDICTION) BETWEEN: MOFFAT B MBANGA Appellant AND PUBLIC SERVICE MANAGEMENT DIVISION 1st Respondent THE ATTORNEY GENERAL 2nd Respondent Coram: Sakala C. J., Chibesakunda and Silomba JJs 5lh November 2002 and 4th April 2003 For the Appellant, Mr. J. Kalokoni of Chilupe and Company For both Respondents, Mr. M. Haimbe, Senior State Advocate JUDGMENT Sakala CJ., delivered the Judgment of the Court. Case referred to: - (1) EDITH TSHABALALA Vs THE ATTORNEY-GENERAL SCZ Judgment No. 17 of 1999. When we heard this appeal at Kabwe, we announced our decision. We allowed the appeal with costs to be taxed in default of agreement. We indicated then that we shall give our reasons at a later date. We now give our reasons. This is an appeal against a judgment of the High Court dismissing the appellant’s claim for payment of gratuity and or pension for a period of over 20 years that he served in the Public Service. The facts of the case, as accepted by the court below, were simple and straightforward. The Appellant, a Zimbabwean by nationality, came to Zambia in the early sixties before independence. At first he was employed by the Medical Aid Society from 1963 to 1975 when the Society was abolished. In the same year of 1975, he was employed by the Ministry of Health on temporary basis as a Medical Records Officer. It was common cause that the Appellant was subsequently confirmed. His name was actually gazetted. He was given a staff No.77801, which according to his evidence, is given to permanent employees. It was also common cause that the Appellant was a member of the Zambia National Provident fund. The Appellant worked continuously for 21 years and six days. On 18th September 1996, he applied for early retirement. His application was accepted. According to the Appellant, the papers for payment were processed by the Ministry of Health. They were forwarded to the Public Service Management Division for payment. The Division refused to pay him; contending that because he was a non-Zambian, there was no authority to employ him on permanent and pensionable employment. On 29th January 1997, the Public Service Management Division issued the necessary authority back-dated to 1975 to employ him on contract. This was done. On 14th March, 1997, his name was re-gazetted. The Ministry of Health having rectified the mistake, they completed the necessary forms for appointment on the basis of 21 years and six days, the period the Appellant had served the Government. However, the Public Service Management Division refused to process the payment of the benefits; contending that the Appellant being a non-Zambian, could not be employed either on contract or on permanent and pensionable terms. The Appellant, aggrieved by this turn of events, launched the proceedings leading to this appeal claiming for a declaration that he was entitled to payment of gratuity from the Public Service Management Division for the 21 years and seven months that he served in the Public Service as a permanent Medical Records Officer for the Ministry of Health from 1975 to 1996. The action was tried without pleadings. The Appellant testified at the trial. The respondent did not adduce any evidence. The learned trial Judge noted that the only question for determination in the matter was the form of employment the Appellant had been engaged in, in the first instance. The court also noted that the Appellant had acknowledged that he was not a Zambian at the time of his engagement in the Public Service. The court further noted that the Appellant’s original letter of appointment dated 31st July 1975 was for temporary employment. The learned Judge reproduced that letter. He noted from that letter that it spoke for itself and defined the conditions of service as a temporary Medical Records Officer. The court further noted that the Appellant had acknowledged that he received no authority from either the Public Service Commission or the Personnel Division to change the temporary employment into a permanent pensionable one or contract of employment. The court found that there was abundant documentary proof on record that the contract forms the Appellant completed were an error, that the errors were corrected by the Public Service Commission by directing that the Appellant be given three months notice of termination of his temporary employment with effect from a current date. The court observed that the answer to the question of the form of the Appellant’s employment was clearly that it was a temporary appointment. The court found that the Appellant could not validly claim for benefits that are applicable to pensionable appointment to the Civil Service; and that he had not shown why he wanted gratuity for the period of his service. The court concluded that the Appellant could not benefit from errors contained in the subsequent documents that were corrected. The court finally dismissed the whole claim. On behalf of the Appellant, a memorandum of appeal was filed containing three grounds. These are: - that the learned trial Judge misdirected himself in both law and fact in holding that the Appellant was not entitled to the payment of gratuity and or pension for the 21 years that he served the Government of the Republic of Zambia because of being non-Zambian; that the learned trial Judge erred in law in failing to understand that the Government of the Republic of Zambia corrected these errors that had existed in the document; and that the learned trial Judge misdirected himself in law in failing to appreciate the fact that the Appellant’s employment on contract had been backdated to 1975. t In arguing the appeal, Mr. Kalokoni informed the court that there was basically only one point of law, which raised the question of whether there was any law in Zambia, in 1975, which prohibited non-Zambians from being employed on either permanent and pensionable employment or on a fixed term of contract. Mr. Kalokoni referred the court to the case of Edith Tshabalala Vs the Attorney General0* He contended that in that case, the court held that there was nothing in the Pensions Act and in the Employment Laws of Zambia back in 1975 which prohibited non-Zambians from being employed on local conditions either on contract or on permanent and pensionable employment. Mr. Kalokoni complained that this authority was copiously referred to and quoted in their submissions in the court below but the learned trial Judge appeared not to have read the submissions as he did not refer to the authority. Counsel urged the court to uphold the appeal on the basis of the authority in the Tshabalala case. On behalf of the State, Mr. Haimbe indicated that he was not familiar with the case of Tshabalala. He informed the court that in the light of that authority, he would agree with the conclusion in that case. We have considered the judgment of the learned trial Judge, the facts of the case and the submissions by learned counsel for the Appellant. We totally agree with the submissions by Mr. Kalokoni that the facts of this case are on all fours with our decision in the case of Tshabalala. Although the authority was referred to by counsel in the court below, the trial Judge never made mention of it in his judgment. The undisputed facts are that the Public Service Management Board issued the necessary authority to employ the Appellant on contract backdated to 1975. The Appellant’s name was accordingly re-gazetted. After the papers had been duly prepared by the Ministry of Health, backdated to 1975, the necessary documentation for payment of the Appellant’s terminal benefits were submitted. The Public Service Management Board refused to pay him his benefits giving the reason that the status of the Appellant was that of a non-Zambian who could not be employed either on contract or on permanent and pensionable employment. As we said in Tshabalala case, there is nothing in the Pensions Act and in the Employment Laws of Zambia back in 1975 that prohibited non-Zambians from being employed to local conditions. The appointment here was authorized and backdated. There was no justification for refusing him his terminal benefits. It was for the foregoing reasons that we allowed the appeal with costs. E. L. Sakala CHIEF JUSTICE L. P. Chibesakunda SUPREME COURT JUDGE S. S. Silomba SUPREME COURT JUDGE