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Supreme Court of Zambia - 2019 September

12 judgments
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12 judgments
Citation
Judgment date
September 2019
Kennedy Kaunda v People (APPEAL NO. 45/2018) [2019] ZMSC 395 (26 September 2019)
Conviction quashed where key witnesses gave inconsistent, uncorroborated evidence and one witness had a potential interest.
Criminal law — Identification and reliability of witnesses — Inconsistent testimony and witness with possible interest — Need for corroboration of suspect witness — Conviction unsafe where evidence is contradictory and uncorroborated.
 26 September 2019
Ng'onga v Alfred H. Knight Zambia Ltd (Appeal 203 of 2016) [2019] ZMSC 359 (26 September 2019)
Damages for wrongful dismissal generally equate to notice-period pay unless claimant proves additional loss or special circumstances.
Employment law – wrongful dismissal – measure of damages ordinarily equivalent to notice period – enhanced awards only for special circumstances – proof of loss and mitigation – burden of proof on claimant to show additional loss; employer must plead and prove failure to mitigate.
 26 September 2019
Ossie Mangani Zulu v Phiri & Another (Appeal 165 of 2016) [2019] ZMSC 281 (19 September 2019)
An officer of an unincorporated club is personally liable for club debts; execution against his goods was lawful.
Unincorporated associations – no separate legal personality – officers and members’ personal liability – agency defence inapplicable where principal does not exist – lawful execution against member’s goods.
 19 September 2019
Ossie Mangani Zulu v Phiri & Another (Appeal 165 of 2016) [2019] ZMSC 282 (19 September 2019)
Officers of an unincorporated club are personally liable for debts; a disclosed principal must legally exist to avoid personal liability.
Unincorporated associations — no separate legal personality — officers/members personally liable for debts; agency — disclosed principal must exist; joint and several liability; execution against a member permissible.
 19 September 2019
Jacqueline Chipasha Mutale v Stanbic Bank Zambia Ltd (Appeal 189 of 2016) [2019] ZMSC 322 (10 September 2019)
Employer’s invocation of payment-in-lieu was pierced as bad faith; downgrading amounted to redundancy entitling the employee to pay.
Employment law — redundancy — organisational review and downgrading of post — payment-in-lieu-of-notice may be pierced where employer acts in bad faith — entitlement to redundancy payment (equal treatment) — interest on award.
 10 September 2019
Mutale v Stanbic Bank Zambia Limited (189 of 2016) [2019] ZMSC 263 (10 September 2019)
Employer’s invocation of termination-by-notice to avoid redundancy pay was displaced where downgrading and lack of consultation showed true redundancy.
Employment law – redundancy – organisational review and downgrading of post – employer invoking payment in lieu of notice to disguise redundancy – court may look behind termination-clause where sufficient evidence suggests ulterior motive – variation of basic terms without consent deemed to terminate contract – entitlement to redundancy pay and comparable treatment.
 10 September 2019
Ruharo Ltd v Kloppers (Appeal 188 of 2016) [2019] ZMSC 286 (10 September 2019)
Termination signed by the employer’s director valid despite shareholder letterhead; damages limited to notice; statutory leave pay upheld.
Employment law – termination – corporate agency and authority – shareholder letterhead vs director’s act; measure of damages for loss of employment – common law notice period; leave entitlements under oral contracts – s.15(1)(i) and employer record-keeping obligation.
 10 September 2019
Tembo v Salati & Others (200 of 2016) [2019] ZMSC 262 (10 September 2019)
Certificate of title upheld; appellant not bona fide purchaser and ordered to yield possession and demolish structures; appeal dismissed.
Land law; certificate of title; conclusive but impeachable for fraud or impropriety; bona fide purchaser without notice; ineffective revocation by local authority; payments and issuance of title superseding withdrawal; unlawful structures and demolition; remedy against state officials for misleading conduct.
 10 September 2019
Mwanapapa v Jagdish (185 of 2016) [2019] ZMSC 260 (9 September 2019)
An appeal was dismissed with costs due to a materially defective record of appeal and the appellant's decision not to appear.
Civil procedure — Record of appeal — Rule 58(4) — Incomplete/missing affidavits and documents — Record unsafe — Rule 68(2) dismissal; Rule 69 notice of non-appearance — risk of forfeiting opportunity to remedy defects.
 9 September 2019
Mwandezi v Lafarge Zambia PLC (187 of 2016) [2019] ZMSC 261 (9 September 2019)
Appellant failed to prove economic duress; second signed contract superseded the first and appeal dismissed.
Employment law – variation of contract – second contract superseding earlier contract – economic duress – tests for duress (protest, alternatives, independent advice, steps to avoid) – appellate review of findings of fact (Nkhata/Achiume) – appointment notice as administrative payroll procedure.
 9 September 2019
Sibamba Mwandezi v Lafarge Zambia PLC (Appeal 187 of 2016) [2019] ZMSC 285 (9 September 2019)
Corrected second employment contract superseded the first; no economic duress proved; appeal dismissed.
Employment law – variation of contract by second contract – economic duress (proof, Pao On factors, affirmation) – appointment letter as administrative payroll device – appellate review of factual findings (Nkhata/Achiume).
 9 September 2019
Ventriglia & Another v People (37 of 2019) [2019] ZMSC 259 (9 September 2019)
Subordinate Court lacked jurisdiction to grant forfeiture restraining order exceeding its civil monetary limit.
Jurisdiction – Subordinate Courts – Forfeiture of Proceeds of Crime Act – civil proceedings – monetary limits – lack of jurisdiction renders proceedings a nullity.
 9 September 2019