Zambia Privatization Agency v Malama and Ors (Appeal 27 of 1999) [2001] ZMSC 94 (15 March 2001)

IN THE SUPREME COURT OF ZAMBIA HOLDEN AT LUSAKA (Civil Jurisdiction) APPEAL NO 27/99 BETWEEN: ZAMBIA PRIVATISATION AGENCY APPELLANT AND JOSEPH MALAMA & 47 OTHERS RESPONDENT Coram: Bweupe, DCJ; Chaila, Lewanika, JJS 10th August, 1999 and 15th March, 2001 For the Appellant : Mr. Martin Musaluka, Deputy Legal Counsel, ZPA For the Respodnent : Mr. F. Mudenda, Hakanseke and Company JUDGMENT Chaila, JS, delivered the judgment of the court. The appellants have appealed against the decision of the Industrial Relations Court, which ordered them to pay redundancy package, which would include allowances for transport, housing and lunch allowances. Briefly the facts of the case were that the respondents were employees in a parastatal organization called NKWAZI MANUFACTURING CO. LTD. The employees were declared redundant and were paid the package, which excluded or did not incorporate the allowances with basic salary. They took up the matter with the Industrial Relations Court and the court upheld their claim. - J2 - The main argument here which is based on two grounds of appeal is that the facts of this case did not attract the incorporation of the allowances and did not come within the ambit of the case already decided by the Supreme Court on the incapacity to pay the redundancy package. This question of incapacity to pay was discussed and a decision was arrived at in the case CATHERINE HAMASUKYU AND 30 OTHERS KV ZAMBIA PRIVATISATION AGENCY - SCZ APPEAL NO. 95/1996. In this case this court held that the plea of financial inability was not a claim and could not, therefore, succeed. The Industrial Relations Court in this case followed the decision of HAMASUKU’S case. In this court, both counsel have mainly relied on their written heads of argument. We have addressed our minds to the facts of this case and the law in question. We have considered the written submissions. The court below considered the question of allowances and the circulars and came to the conclusion that the allowances were to be incorporated in the redundancy package. We have also considered the evidence on record and we are fully in agreement with the lower court on the capacity to pay. We uphold what we said in the HAMASUKU & OTHERS case. The appeal is therefore dismissed with costs. - 3 - B. K. BWEUPE DEPUTY CHIEF JUSTICE M. S. CHAILA SUPREME COURT JUDGE D. M. LEWANIKA SUPREME COURT JUDGE