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Citation
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Judgment date
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| June 2003 |
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Rule 78 corrects clerical slips only; it cannot be used to review judgments or introduce new grounds not on appeal.
Civil procedure – Supreme Court Rules – Rule 78 (slip rule) – limited to clerical errors and accidental slips or omissions – cannot be used for substantive review, reinterpretation of judgment, or to raise new points not included in the appeal.
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5 June 2003 |
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Court held that invoking a notice clause cannot mask dismissal for incompetence; employee must be heard and may recover damages.
Employment law – termination by notice versus dismissal for conduct/performance – section 26A Employment Act requires an opportunity to be heard – Industrial and Labour Relations Act s85(5) permits courts to look behind notice to administer substantial justice – damages for mental distress and withheld contractual benefits – interest on awards.
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4 June 2003 |
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Termination by notice is wrongful where employer’s true reason is incompetence and statutory right to be heard was denied.
Employment law – Termination by notice – Where real reason is conduct or performance employer must afford opportunity to be heard (Employment Act s26A) – Industrial Relations Court may probe behind notice to administer substantial justice (ILRA s85(5)) – Natural justice breach – Holiday allowance payable as condition of service – Damages for mental distress recoverable.
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4 June 2003 |
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Assessment of damages is abusive where parties have already settled the claim out of court.
Civil procedure – assessment of damages – effect of out-of-court settlement – abuse of court process – dismissal of assessment application.
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4 June 2003 |
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An assessment application is improper and may be an abuse of process where the respondent has already paid a full and final settlement.
Settlement out of court – Effect on assessment of damages – Application for assessment rendered unnecessary after full and final settlement – Abuse of court process where assessment pursued despite settlement – District Registrar's dismissal upheld.
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4 June 2003 |
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A failed defence of provocation is an extenuating circumstance warranting reduction of a death sentence to imprisonment.
Criminal law – Murder – Sentencing – Provocation – Whether a failed defence of provocation constitutes an extenuating circumstance – Appellate substitution of death sentence with term of imprisonment.
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4 June 2003 |
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A failed defence of provocation can be an extenuating circumstance warranting reduction of a death sentence to long imprisonment.
Criminal law – Murder – Provocation – Failed defence of provocation as potential extenuating circumstance at sentencing – Sentencing discretion – Substitution of death sentence with lengthy imprisonment.
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4 June 2003 |
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Summary dismissal for dishonesty upheld where employee diverted bonuses to avoid overdraft; procedural fairness affirmed.
Employment law – Summary dismissal for dishonesty – Diversion of salary/bonuses to avoid overdraft – Disciplinary procedure and natural justice – Industrial Relations Court powers (s85, s108) – Substantial justice.
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4 June 2003 |
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Appellant's summary dismissal for diverting bonuses upheld as dishonest and procedurally fair; appeal dismissed with costs.
Employment law – Dishonesty and summary dismissal – Diversion of salary/bonuses to avoid overdraft; Natural justice – notice of charge, disciplinary hearing and right to appeal; Industrial and Labour Relations Act – Section 108 (discrimination) and Section 85 (court’s power to do substantial justice); Standard of proof – balance of probabilities.
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4 June 2003 |
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Failed provocation and intoxication were held to be extenuating circumstances, reducing the death sentence to 20 years' imprisonment.
Criminal law – Murder – Sentencing – Death penalty – Extenuating circumstances – Failed provocation and intoxication as grounds for reducing a death sentence – Appeal against sentence – Substitution of term of imprisonment.
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4 June 2003 |
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Failed provocation and intoxication reduced the appellant's death sentence to 20 years' imprisonment.
Criminal law – Murder – Sentence – Death penalty – Provocation and voluntary intoxication as extenuating circumstances – Failed provocation may warrant reduction of death sentence.
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4 June 2003 |
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4 June 2003 |
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Enhancing a sentence without giving the appellant the statutory opportunity to be heard is a misdirection and nullity.
Criminal procedure – Sentencing confirmation – High Court review and enhancement of subordinate court sentence – Requirement to afford accused opportunity to be heard under section 333(2) Criminal Procedure Code – Enhancement in absence a misdirection and nullity – Remittal for re-sentencing.
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4 June 2003 |
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An appeal challenging factual findings on retrenchment calculation was dismissed for lack of jurisdiction under section 97.
Industrial and Labour Relations Act s.97 – appeals limited to points of law or mixed law and fact; calculation of retrenchment packages – salary at date of purported dismissal; salary increases between dismissal and judgment recoverable as interest; fiction of reinstatement not applied to vary factual award.
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4 June 2003 |
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Appeal dismissed for lack of jurisdiction under s.97 ILRA; retrenchment calculated from date of dismissal, post-dismissal increases recoverable by interest.
Labour law – Industrial Relations Court findings of fact – appellate jurisdiction under s.97 ILRA – calculation date for retrenchment packages – salary at date of purported dismissal; interest for post-dismissal salary increases; entitlement to repatriation and accrued leave.
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4 June 2003 |
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Appeal allowed: evidence of gross negligence supported dismissal under employer’s disciplinary code; High Court misdirected, award set aside.
Employment law — disciplinary dismissal — gross negligence and wilful disobedience — sufficiency of evidence to prove loss of employer’s property — disciplinary code categories and appropriate penalty — appellate review of trial judge’s misdirection.
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4 June 2003 |
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Employee's dismissal for gross negligence in loss of employer's goods was lawful where disciplinary procedure complied and evidence supported guilt.
Employment law – wrongful dismissal – disciplinary procedure – gross negligence of duty – offences warranting instant dismissal – assessment of damages for wrongful dismissal.
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4 June 2003 |
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Contractual conditions governed repatriation (no cash), uniform deductions, and housing entitlement; appeal dismissed with costs.
Employment law – contractual conditions of service – repatriation clause obliges employer to bear transport cost, not to pay cash; uniform recoveries – claimant must prove entitlement under conditions; housing allowance – entitlement depends on proof of involuntary removal; costs – appellate deference to trial court discretion.
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4 June 2003 |
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An allocation of customary land without consulting affected persons is void; bona fide improvements are compensable.
Land law — customary tenure — Section 3(4) Lands Act — mandatory consultation of chief, local authority and persons whose interests might be affected — allocation void if consultation absent; equitable estoppel inapplicable; entitlement to compensation for bona fide improvements — valuation by Government Evaluation Department.
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4 June 2003 |
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Allocation of customary land without statutorily required consultation is void, but bona fide improvements are compensable.
Lands Act s3(4) – customary land – mandatory consultation with chief, local authority and persons whose interests may be affected – failure to consult renders allocation void; estoppel cannot override statutory mandate; bona fide improvements compensable; customary tenure and reallocation on non-use.
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4 June 2003 |
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Whether the applicant may recover an overpayment caused by computing pension on post-retirement salary instead of at the normal pension date.
Pension scheme law – Interpretation of scheme rules – "Final Pensionable Salary" – Deferred retirement – Mistake in computation versus waiver – Recovery of monies erroneously paid.
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3 June 2003 |
| May 2003 |
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Whether the appellant could claim compound interest or was bound by a 67% simple interest rate agreed with the respondent.
Contract law – Loan agreements – Interest: distinction between compound and simple interest; requirement of express agreement for compound interest; appellate review of factual findings based on affidavit and documentary evidence; reliance on exhibited letters to establish prevailing interest rates.
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28 May 2003 |
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Whether compound interest applied and proper simple interest rate on reconstituted loan; appellate review of factual findings.
Contract/Loan agreements – Interest – In absence of express agreement, compound interest disallowed; simple interest applies – Determination of appropriate rate by weighing affidavit evidence and exhibits – Appellate review limited where factual findings are supported by evidence.
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28 May 2003 |
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Consolidation is proper where actions share common issues; counsel who engage in forum shopping may be ordered to pay costs.
Civil procedure – Consolidation of actions – Common questions of law or fact – Rationale to avoid multiplicity and save costs – Forum shopping and abuse of process – Duplication of actions – Costs may be awarded against counsel who deliberately engage in forum shopping.
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28 May 2003 |
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A bank is not liable for perfectly simulated forgeries absent negligence; customer precluded for failing to detect internal fraud.
Banking law – forged cheques – standard of care: ordinary bank verification, not expert-level scrutiny; negligence test: whether facts should have put banker on inquiry – estoppel/adoption by customer – Bills of Exchange Act 1882 s.24.
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27 May 2003 |
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A party’s public comments on pending court evidence amounted to contempt; fined three million Kwacha or three months imprisonment.
Contempt of court – prejudicial public comment on pending litigation – party to proceedings abusing press statements – administration of justice – Attorney-General v Times Newspapers applied.
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15 May 2003 |
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A party's public comments prejudging evidence in ongoing proceedings constitute contempt and attract fine or imprisonment.
Contempt of court – publication prejudging pending litigation; 'trial by newspaper' – comments on evidence before a court; party to proceedings – aggravated conduct; sanction: fine with committal alternative.
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15 May 2003 |
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Early retirement under a lawful reorganisation upheld; no accrued right to buy staff housing; appeal dismissed, no costs.
Employment law – early retirement and reorganisation – service regulation permitting discharge for abolition/re-organisation; Conditions of service vs. pension scheme integration; Procedural compliance in staff restructuring; Staff housing – entitlement to purchase on cessation of employment; Evidence – reliance on unpleaded claims and parties’ own evidence for mesne profits.
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15 May 2003 |
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Early retirement pursuant to organizational restructuring upheld; no accrued right to purchase employer house; appeal dismissed.
Employment law – early retirement under restructuring – Service Regulations (abolition/reorganisation clause) – contractual pension scheme and employer consent – accrued right to purchase employer housing – mesne profits evidence and pleading requirements.
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15 May 2003 |
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The applicant’s challenge failed: a writ may be accompanied by a full statement of claim instead of endorsement.
Civil procedure – Writ of summons – Endorsement of claim – Order VI r1(1) High Court Rules (S.I
No. 11 of 1997) – A writ may be endorsed with or accompanied by a full statement of claim – setting aside writ for non-endorsement
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14 May 2003 |
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A writ accompanied by a full statement of claim is valid; non‑endorsement alone does not justify setting aside.
Civil procedure — Writ of summons — Endorsement versus annexure of statement of claim — Order VI Rule 1(1) High Court Rules (as amended by SI No. 71 of 1997) permits commencement by writ endorsed with or accompanied by full statement of claim — non‑endorsement alone not an irregularity warranting setting aside writ.
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14 May 2003 |
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An unregistered collective agreement not approved by the Minister has no legal effect; appeal allowed with costs.
Collective agreements — Registration and Ministerial approval — Sections 68, 70, 71 Industrial and Labour Relations Act — Unregistered collective agreement has no legal force — Labour Commissioner’s limited role — Minister’s discretion to refuse registration where implementation is not feasible.
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14 May 2003 |
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No valid contract for 775 hectares due to discrepancies, but appellant entitled to compensation for bona fide improvements.
Property law – Sale of land – Essential terms (price and area) – Lack of agreement defeats contract; Equity – Unjust enrichment – Compensation for bona fide improvements by an intending purchaser; Unclean hands – limits on equitable relief.
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14 May 2003 |
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Interim mandatory injunction to reconnect electricity set aside where respondent was in arrears and had dishonoured payment cheques.
Civil procedure — Interim/mandatory injunctions — Equitable discretion — Electricity supply and disconnection — Non-payment and dishonoured cheques — Balance of convenience.
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14 May 2003 |
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Suspension of a Member for comments made outside Parliament violated constitutional freedom of expression; oath does not justify such suspension.
Constitutional law – freedom of expression (Article 20) – limits and derogations – Oath of Allegiance – parliamentary privilege and contempt – High Court jurisdiction to review Parliamentary disciplinary decisions – National Assembly (Powers and Privileges) Act, Cap 12.
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13 May 2003 |
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A collective agreement not approved under the Act has no legal force and cannot be enforced against the employer.
Employment law – Industrial and Labour Relations Act (ss. 68, 70, 71) – registration/approval requirement for collective agreements – effect of non-registration – Minister’s powers; role of Labour Commissioner; enforceability of unapproved collective agreements.
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13 May 2003 |
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An MP’s extraparliamentary opinion unrelated to parliamentary proceedings cannot be disciplined; the oath does not override freedom of expression.
Constitutional law – Freedom of expression (Art.20) – Parliamentary privilege – Contempt of Parliament – Oath of allegiance – National Assembly (Powers and Privileges) Act Cap.12 – Extraparliamentary speech – Judicial review of parliamentary disciplinary action.
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12 May 2003 |
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An appellate court will not disturb trial credibility findings absent manifest misdirection; appeal dismissed with costs.
Civil procedure – Appeal – Findings of fact and credibility – Appellate restraint where trial court assesses demeanour; to interfere only if manifestly misdirected; oral contract; payment in kind; double express charge.
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12 May 2003 |
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Appellate court refuses to disturb trial court's credibility findings on an oral contract and double express charge; appeal dismissed.
Civil procedure — Appeal from findings of fact — Appellate court will not interfere with trial court's credibility assessments absent manifest misdirection; oral contract and agreed double express charge upheld.
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12 May 2003 |
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Appeal allowed: writ was not irregular, issues are triable, and mesne profits were prematurely ordered before ownership determined.
Civil procedure – setting aside writ – locus standi – triable issues vs summary disposal under Order 2 – mesne profits premature prior to determination of ownership.
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9 May 2003 |
| April 2003 |
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A clear, unambiguous contractual limitation clause limits liability even where an alleged fundamental breach occurred.
Contract law – exclusion and limitation clauses – effect of alleged fundamental breach – clause construction dictates applicability – Securicor; Suisse Atlantique; Photo Production; George Mitchell.
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24 April 2003 |
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Medical retirement was valid without a prior Medical Board, but employer must pay the remaining two months' notice with interest.
Employment law – medical retirement – whether medical board recommendation is a condition precedent – notice/pay in lieu on retirement – applicability of Employment (Special Provisions) Act and Regulations – award of interest discretionary under Law Reform Act – exemplary damages.
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17 April 2003 |
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Appeal dismissed: respondent's accepted offer and payment vested ownership; applicant had no entitlement to the house.
Property law – sale of employer-owned housing – eligibility under employer housing policy – acceptance and payment confers ownership – employer not obliged to offer house to deceased's estate – evidentiary weight of contemporaneous documents.
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17 April 2003 |
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Whether a collective agreement signed after retrenchment but effective from an earlier date bound the appellants.
:[
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14 April 2003 |
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Whether terminal benefits under the collective agreement are payable regardless of exit or only per Administrative Rules to privatisation date.
Collective agreements – interpretation of Clause 55 ("Service in Trust") – terminal benefits payable only in accordance with Administrative Rules up to privatisation date – court erred in importing words not in clause – precedential distinction – costs: successful party should not be condemned without reasons.
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8 April 2003 |
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A 12-year sentence for attempted murder with a firearm was upheld as not excessive; age was not an extenuating factor.
Criminal law – Attempted murder – Sentence – Use of a firearm – Age as extenuating circumstance – Section 201(1)(b) Penal Code – Inapplicability of manslaughter comparisons.
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8 April 2003 |
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Appeal against 12-year sentence for attempted murder dismissed; age and manslaughter comparisons not mitigating factors.
Criminal law – Attempted murder – sentence – use of firearm and intention to kill – severity of offence; Mitigation – ages and personal circumstances not extenuating for attempted murder; Section 201(1)(b) relevance to murder only; Manslaughter and attempted murder are legally distinct – sentence comparison inappropriate.
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8 April 2003 |
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Title deeds obtained by misleading authorities and cheating the lawful occupant may be cancelled and mesne profits awarded.
Land law – Title deeds – Cancellation for fraud; beneficial occupation and priority to acquire title; failure of local authorities to investigate title; entitlement to mesne profits and costs.
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5 April 2003 |
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Order 53 RSC governs judicial review in Zambia; interested persons must themselves show sufficient interest to be joined or heard.
Judicial review procedure – Adoption of Order 53 RSC under High Court Act – Inapplicability of High Court Rules Orders 14 and 18 to judicial review – Joinder/participation: requirement that prospective intervenors themselves show sufficient interest – Judicial review concerned with legality and procedure, not merits of tribunal’s clearance – Stay of proceedings to prevent nugatory litigation and protect public interest.
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4 April 2003 |
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A non‑Zambian appellant was entitled to pensionable benefits where authorities authorized and backdated his appointment.
Employment law – Non‑Zambians – Pension and gratuity entitlement – Backdated appointment and re‑gazettement – No prohibition in 1975 Pensions/Employment laws – Precedent applied (Tshabalala).
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4 April 2003 |