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Court name
High Court of Zambia
Case number
HK 4 of 2017
Case name
Silweya v Konkola Copper Mines PLC
Law report citations
Media neutral citation
[2017] ZMHC 41
Judge
Maka-Phiri, J.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                               

 

 

 

 

 

 

IN TJJ E  HI_g     COURT  FOR  ZAMBIA AT THE DISTRICT REGISTRY HOLDEN  AT KITWE

(CIVIL JURISDICTION)

 

2017/HK/04

 

 

BETWEEN: 

 

 

LIGHTSON  SILWEYA         APPLICANT

 

AND

 

KONKOLA COPPER  MINE    RESPONDENT

'  

Before; Mrs. Justice C. B. Maka-Phiri

For   the  Applicant:           Mr.:k. Musukwa  of  Messrs  Nyirongo &

Co

For the Respondents:  Mr. E. C. Banda, SC, of Messrs ECB Legal

Practitioners

 

 
 

 

 

JUDGMENT

 

 

       
   

 

 

Legislation  referred to:

 

  1. The Public Service Pensions Act, Chapter 260 of The Laws of  Zambia
  2. Statutory  Instrument No. 63 of 2014, The  Public Service (Retirement

I

 

 Age)  Regulations, 2014·

  1. Statutory Instrument No. 24 of 2015, The Public Service  (Retirement  Age) (Amendment) Regulations, 2015
  2. The National Pensions Scheme Act, Chapter 256 of The Laws of  Zambia
  3. The National Pensions Scheme(Amendment )Act No. 7 of  2015
  4. The Income Tax(Amendment)Act,  No .  19    of 2015

 

 

 

 

 

 

This matter was commenced by way of originating su1nmons on the 5th day of January, 2017. The applicant is seeking the following reliefs;

  1. A declaration that the applicant was retired or his services were terminated by the respondent based on non-operative, otiose and obsolete law being the Repealed Retirement Act which provided inter alia for a person to retire from employment services at the age of 55 years, that the said Applicant's retirement is null and void.
  2. A declaration that the retirement or the termination of services of the applicant by the respondent was unlawful and premature, as it failed to entrench the spirit embodied in Statutory Instrument No. 63 of 2014 which led to the Amendment  Act No.  7  of 2015  and Amendment  Act No. 19 of 2015, which collectively call for mandatory retirement of a person after attaining the age of 60  years.
  3. A declaration that the applicant is still in the active time frame of employment and that he is lawfully entitled to any remunerations  and any other allowances from the  time he was retired by the  respondent.
  4. An order for the relief of compensation for the inconvenience done and for declaring the applicant as retired by the  respondent.
  5. Any other relief the court may deem fit.
  6. Interest on any amount found  due.
  7. Costs.

 

The summons was  accompanied  by  an  affidavit  deposed  to  by  Lhe a pp lican t and dated 5th January 2017. The applicant's skeleton arguments  were filed into court on the 26th April   2017.

 

According to the said affidavit the applicant  was  employed  by  the then ZCCM as a Trainee Electrical Engineer in April, 1985. The applicant  rose  through  the  ranks  and  at  the  time  of  termination  of

 

his crnployment on 31st January,  2015  he was holding  the  position of Sectional Supervisor Electrical. The advice on normal retire1nent was exhibited as "LS1" in  the affidavit in support.

 

The applicant contended that the respondent retired him on 31st January 2015 at the age 55 years based on the  repealed  Retirement Act. The  applicant's  contention  is that  he should  have  been  retired at the age of 60 years being the normal retirement age following the enactment of Statutory Instrument No. 63 of 2014 which led to the Amendment Act No. 7 of 2015 and Act No. 19 of 2015. It was the applicant's further contention that the aforementioned Statutory Instrument and Amendment Acts were enacted prior to his  due date  of 3 1sr January, 2015. The applicant deposed further that  he  has made several correspondences to the respondent's Manager and National Pensions Scheme Authority over the amendment of the old Act and that the newretirement age is 60 years and not  55  but  this has fallen on deaf ears. In conclusion,  the applicant  asked the court  to grant  him the  reliefs sought.

 

The respondent opposed the application and filed an affidavit in opposition sworn by Priscilla Phiri, the Manager Human Capital Management-Corporate 1n the Respondent Company.  The respondent's arguments and submissions were filed  into  court  on  28th April, 2017.

 

It was deposed that the applicant  was employed  by  the  respondent in  April ,  1985  by  the  then  Zambia  Consolidated  Copper   Mine (ZCCM)         as  Trainee  Electrical    Engineer    and   crossed  over     to the respondent on 31st March , 2000. The applicant rose through the ranks   until   he   retired on   31st  January,  2015.   The   respondent advised the applicant in a  letter  dated  14th August,  2014  that  he was due  to  retire  on  31st January,  2015  upon  attaining  the  age of 55 years as per his conditions of employment. The said letter was shown as exhibit "PPl" in the affidavit in  opposition.  Subsequent upon his retirement, the applicant accessed his retirement benefits through  Regina Saturna and he was duly  paid  all  his  dues.

 

It was deposed further that the  National  Pension  Scheme (Amendment) Act No. 7 of 2015 that revised the retirement age was enacted on 14th Au gu s t , 2015. Further  that  Statutory  Instrument No. 63 of 2014 is the Public Service (Retirement Age) Regulations which only applied to the public service and not  to  private entities such as  the respondent. The respondent's  position  was  that  Act  No. 7 of 2015 did not have a retrospective application on employees and therefore did not apply to the  applicant.  It  was  further  contended that the Act did  not  contain  mandatory  provisions  to all  employers in the country to revise the retirement age. It was the respondent's deposition that the applicant was lawfully and legally retired  as  per his conditions of service on attaining the age of 55 years. In view of  the foregoing the respondent urged the court to  dismiss  the application for want of merit with  costs.

 

I have considered the evidence and the written submissions by both parties.  From  the  evidence,  it  is  not  in  dispute  that  the  applicant was employed  by  the  respondent  until  the 31:-;t January,  2015 when he was retired in accordance with the terms and conditions of his employment. The applicant was notified of the normal retirement on 14th August 2014 in a letter exhibited by both parties as  "LSl" and "PPl" respectively. The applicant has since been paid his retirement benefits.

 

The only issue for determination in this matter is whether or not the termination of the applicant's employment by way of retirement was unlawful and premature in view of the changes in the law on the retirement age. To answer this question, I need  to ascertain  the  law that was applicable to the applicant at the time of his retirement in January, 2015. The starting point is to note that the applicant persistently made reference to the repealed  Retirement Act (old law)  in both  the  originating  summons and  affidavit.  Perusal  of  the  laws of Zambia shows that such Act does not in  fact exist. The applicant also referred to Amendment Act No. 19  of 2015  being  the  Income Tax (Amendment) Act. The said Act has  no relevance to this  case.

 

The applicant in this matter has heavily  relied  on  Statutory  Instrument No. 63 of 2014 which is The Public Service (Retirement Age) Regulations. According to regulation 4 of Statutory Instrument No.63 of 2014, the mandatory retirement age was 65 years. Prior  to this regulation, the retirement age under section 33 of The Public Service Pensions Act was 55 yea rs . The question  therefore  is whether Statutory Instrument No.  63  of  2014  which  came  into  effect   on   21 st     November   2014   is   applicable   to   the  applicant.

-JS-

 

According to regulation 2, Statutory  Instrument  No.  63  of  2014 only applies to officers in the public service. Public Service means Judicial Service, The Civil Service, the Defence  Forces,  the  Police and Prisons Service, the Teaching Service and the Zambia Security Intelligence Service. The applicant in this case was working for the respondent mining firm which entity does not fall in  the  public  service as defined. What  this  means  is  that  Statutory  Instrument  No. 63 of 2014 is not applicable to the  applicant.  The  applicant cannot therefore rely on  the  said  Statutory  Instrument  to  advance his cause.

 

The applicant's  argument  however  is  that  Statutory  Instrument No.63 of 2014 led to the enactment of Amendment Act  No.  7  of 2015. This argument is fundamentally flawed  and  misconceived  at law. This is because a Statutory Instrument is delegated legislation premised on a principal Act of Parliament. As a form of legis la tion , a Statutory Instrument allows  the  subsequent  bringing  into  force  of  an  Act  of Parliament  or  its  amendment  without  Parliament  having to pass a new Act. Therefore  Statutory  Instrument  No.63  of  2014 was intended to amend the law on retirement in The Public Service Pensions Act being the principal Act  of  Parliament.  The  said Statutory  Instrument  cannot  and  was  not  intended  to  amend  the law on pensionable age as was contained in The National Pension Scheme Act. This explains why Parliament  had  to  enact  The  National Pensions Scheme (Amendment) Act No. 7 of 2015 to specifically amend the law as contained in the principal Act and to synchronize  the  retirement  age in  public service  and  private sector.

 

It is important to note that Statutory  Instrument  No.  63  of 2014 was subsequently amended by Statutory Instrument  No.  24 of 2015; The Public Service (Retirement Age) (Amendment) Regulations for the sole purpose of synchronizing the retirement age in  the  public service and private sector.

 

According to Amendment Act No. 7  of 2015  which is  applicable  to the applicant, pensionable age means the age of 60 years  with  the option of retiring at either 55 years or 65 years. Prior  to  the amendment, the applicable law  was  The  National  Pension  Scheme Act and according to section  2 of the  said  Act,  the  pensionable  age for employees who made contributions  to NAPSA was  55  years.

 

Amendment Act No. 7 of 2015 was assented to on  14th August, 2015. This is the day when it came into effect. It is therefore not in dispute that at the time when Amendment Act No. 7 of 2015 came into effect, the applicant had long reached the then mandatory retirement age of 55 years. I agree with  the  respondent's  submissions that the law cannot apply retrospectively and as such Amendment Act No . 7 of 2015 cannot apply retrospectively. It is therefore my considered view that Amendment Act No . 7 of 2015 does not and cannot apply to the applicant who had reached the mandatory age of 55 years in January, 2015 way before the amendment. The applicant's employment was therefore lawfully terminated as  it was in accordance  with  the  law that was applicable at the time; being The National Pensions Scheme Act.

 

 

..

'    .

 

 

With the foregoing , I come to the inevitable  conclusion  that  this case has no merit and it is hereby dismissed with costs to  the  respondent  to  be taxed  in  default  of agreement.

 

Leave to appeal is hereby granted.

 

 

Dated  at  Kitwe; this 8t h    day   of June 2017.

 

..................

CHILOMBO MAKA-PHIRI

HIGH COURT JUDGE