IN THE SUPREME COURT OF ZAMBIA
APPEAL NO. 84/2010
HOLDEN AT NDOLA AND LUSAKA
(Civil Jurisdiction)
BETWEEN:
REGINA CHISENGA & OTHERS
APPELLANTS
AND
MOPANI COPPER MINES PLC
RESPONDENT
CORAM: Sakala, CJ., Chibomba, Musonda, JJS.
7th June 2011 and 10th May, 2012
For the Appellants
For the Respondent:
:
In Person
Mr. A. Imonda of Imonda and Co.
__________________________________________________________________
JUDGMENT
__________________________________________________________________
Sakala, CJ., delivered the Judgment of the Court.
This is an appeal against the Judgment of the High Court
dismissing the Appellants’ claims for an order for payment of
repatriation allowance for service under the Respondent; an order
for payment of reasonable subsistence expenses or ration from the
date of termination to date of payment of repatriation allowance; for
an order to set aside the consent orders under Cause Nos.
2004/HK/311 and 2004/HK/551; an order for payment of interest;
and an order for payment of legal costs incidental to the
proceedings.
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The facts of this appeal are not indispute.
The Appellants
were employed by ZCCM on various dates and in various capacities.
Later, upon the privatization of ZCCM, the Appellants were
transferred to the Respondent Company, who offered them
employment on the same terms and conditions that applied to
them; when they were ZCCM employees.
The benefits that the
Appellants earned, whilst working with ZCCM, were calculated and
held in Trust to be paid to the Appellants; when they separated with
the Respondent.
Later, the Appellants received similarly worded letters from the
Respondent
declaring
them
redundant.
Subsequently,
the
Appellants commenced an action by writ of summons in the High
Court at Kitwe claiming for the orders set out above.
At trial, Mr. William Chola gave evidence on his behalf and on
behalf of the other Appellants. In his evidence, he testified that the
Appellants left employment on various grounds ranging from
medical discharge, normal retirement and retrenchments.
They
were all claiming repatriation allowance, as per their conditions of
service. According to the witness, when leaving ZCCM, repatriation
allowance was calculated and all the Appellants were paid that
allowance; that when they were employed by the Respondent, the
same conditions, which they were enjoying under ZCCM, were to
apply.
He denied that the Appellants were claiming repatriation
allowance twice.
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On behalf of the Respondent, Mr. Oscar Matabele, the head of
employee Relations in the Respondent company, testified that his
job entailed dealing with handling of disputes and attending to
employees conditions of service.
He also testified that he was
employed by the Respondent on 1st April, 2000, on transfer from
ZCCM and that he was familiar with this case.
He explained that
the Appellants were former employees of the Respondent; that the
terminal benefits with ZCCM were calculated and transferred to the
Respondent as a liability to them.
He further testified that the
value of service and repatriation was 28 months pay plus one
month pay for each year of service, which included repatriation. He
further explained that the Appellants were terminated through
various
modes
retrenchments;
such
while
as
some
redundancy,
were
medical
summarily
discharge,
dismissed.
He
explained further that upon termination, the affected employees
were paid terminal benefits from ZCCM in Trust Fund, which
included repatriation which the Appellants were paid by the
Respondent on their termination.
The witness explained further
that the Appellants’ services continued on being transferred from
ZCCM to the Respondent and the benefits only became payable on
termination of employment.
The learned trial Judge considered the oral and documentary
evidence before him. He found that there was no dispute that the
Appellants
were
previously
employed
by
ZCCM
in
various
capacities; that ZCCM was privatized; that the Appellants were
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transferred to the Respondent and advised that they would
continue to enjoy the same conditions of service as those enjoyed
under ZCCM; and
that they were all written similar letters
containing similar conditions.
The trial Court reproduced in full a letter dated 24th February,
2000, written by ZCCM to each of the Appellants on the subject of
Transfer of Employment from ZCCM to the Respondent Company.
The Court also reproduced in full the letter by the Respondent,
written on the same date, offering each of the Appellants
employment with the Respondent.
Again the Court reproduced in
full the notices of termination dated 19th October, 2000.
The Court noted that while the Appellants complained
they were not paid their repatriation allowance but
that
Mr. William
Chola the only witness, who testified at trial on behalf of all the
Appellants
admitted
during
cross-examination
that
all
the
Appellants received their Trust Funds, which comprised 28 months
pay plus one month’s pay for each completed year of service pro
rata and repatriation allowance.
According to the trial Court, it was very obvious that the
Appellants did not properly understand the import of Paragraph (1)
relating to accrued terminal benefits as contained in the letters of
24th February and 19th October, 2002; that what they were now
claiming would amount to receiving terminal benefits twice; that
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what the Appellants seemed also not to appreciate was
that
although it appeared like they were being employed by the
Respondent anew, they were in fact only transferred from ZCCM to
the Respondent and that their services with ZCCM
were not
broken; and that that is why they were paid their terminal benefits
by the Respondent on separation and that their terminal benefits;
which accrued under ZCCM
before the transfer, were kept in a
Trust Fund, from which they were all paid upon separation with the
Respondent . The Court was satisfied that the Appellants were paid
their repatriation allowance upon their separation with the
Respondent and that their terminal benefits; which accrued under
ZCCM before the transfer, were kept in a Trust Fund, from which
they were all paid upon separation with the Respondent.
In relation to the claim that the consent orders under Cause
Nos. 2004/HK/311 and 2004/HK/551 be set aside; the Court
pointed out that appropriate applications should have been made.
The Court found no evidence to support the claim for reasonable
subsistence expenses. The Court dismissed the whole action and
ordered each party to pay its own costs.
The Appellants appealed to this Court. They filed an amended
Memorandum of Appeal containing three grounds; namely:“1.
That the trial Judge erred in law and fact by
dismissing the Appellants claim for non-payment of
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repatriation
Copper
allowance
Mines
Appellants
Plc
were
notwithstanding
repatriation
on
accrued
the
basis that
already
the
paid
by
Mopani
the
ZCCM
evidence or fact that
allowance
already worked for by
with
received
the
the
were those
Appellants with
ZCCM and were held in trust for them;
2.
The trial Court erred in law and fact when it failed
to draw a distinction between ZCCM Division and
Mopani Copper Mines Plc. And thus treating the two
as one and the same entity.
3.
The learned trial Judge misdirected himself in law
and fact when he dismissed the Appellants claim on
the basis that the Appellants were transferred from
ZCCM Division to Mopani Copper Mines Plc when in
fact the Appellants were offered employment after
ZCCM was bought by the new owners who are Mopani
Copper Mines Plc and hence Clause 3.3.1 of the
collective agreement between Mine Workers Union of
Zambia (MUZ) on page 74 of record
dated 29th September, 2000
of appeal
which entitled the
Appellants to be paid repatriation allowance were
applicable”.
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The parties filed written Heads of argument.
We note,
however, that on behalf of the Appellants, Mr. William Chola
prepared and filed his heads of argument in person.
In the written Heads of argument, ground one is merely
reproduced without supporting it with arguments.
However, since
Mr. Chola informed the Court that he was relying on his written
Heads of argument, we shall deal with the appeal as per Heads of
argument and take note that no arguments were advanced on
ground one.
The gist of the written Heads of argument in ground two is
that the trial Judge misdirected himself; when he dismissed the
Appellants’ claim on the basis that they were transferred from
ZCCM Division to the Respondent; when infact the Appellants were
offered employment after ZCCM was bought by the new owners.
It was contended that the question to be answered was
whether the Appellants moved from ZCCM to the Respondent with
all their years of service or whether there was a break in the service
so that the Appellants commenced a new contract of employment
with the Respondent.
It was further contended that according to
the letter of 24th February, 2000, the Appellants’ terminal benefits
accrued in terms of service with ZCCM, calculated on the basis of
28 months basic pay plus one months’ basic pay per completed
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year of service; and that the accrued amount was to be held in
Trust until date of separation with the Respondent.
It was pointed out that the letter of offer of employment to the
Appellants indicated that employment with the Respondent would
commence from the date on which the Respondent took ownership
of the assets and that accrued terminal benefits that would become
due to the Appellants in terms of service with the Respondent would
be determined
separately. It was submitted that the two letters
pointed to the fact that the Appellants commenced a new contract
of service with the Respondent.
It was further submitted that
according to the letter of offer of employment, the applicable
conditions of service were those which the Appellants had during
the service with ZCCM.
The summary of the written Heads of argument in ground
three is that the trial Judge erred in law and fact by dismissing the
Appellants’
claim
for
non-payment
of
repatriation
allowance
accrued with the Respondent on the basis that the Appellants were
already paid by ZCCM, notwithstanding the evidence or fact that
the repatriation allowance received were those already worked for
by the Appellants with ZCCM and held in Trust for them.
In the written response to the written Heads of argument, the
three grounds of appeal were combined. It was contended that the
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trial Court did not err in law and fact, when it dismissed the
Appellants’ claim for payment of repatriation allowance.
It was pointed out that the Appellant, William Chola, received
a letter of transfer of employment from ZCCM to the Respondent,
which letter indicated that he would be offered employment with the
Respondent; that the Appellant, William Chola, accepted the offer of
employment with the Respondent with effect from 1st April, 2000
on same position, grade and salary as was with ZCCM; that accrued
service benefits with ZCCM, including repatriation allowance, were
calculated and transferred to the Respondent as employee liability.
It was further pointed out that according to the evidence, the
Appellants employment was terminated by the Respondent, who
paid accrued service benefits including repatriation. It was finally
submitted that the available documentary evidence established that
the Appellants were transferred from ZCCM to the Respondent; and
that the Respondent terminated their employment and paid the
accrued terminal benefits which included repatriation allowance.
We have considered the oral and documentary evidence on
record, the Judgment appealed against and the written Heads of
argument. This appeal is against the Judgment of the trial Court
dismissing the Appellants’ claim for an order for payment of
repatriation allowance. Although the appeal is against the dismissal
of the claim for an order for payment of repatriation allowance only,
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we had to review the evidence and submissions in some detail in
order to put the issue for our determination in a proper perspective.
Since all the three grounds of appeal are related and are
centred
on
the
circumstances
leading
to
the
Appellants’
employment, termination of the employment and payment of
terminal benefits, we propose to deal with all the three grounds of
appeal together.
The salient facts, not in dispute, are that all the Appellants
were previously employed by ZCCM in various capacities.
When
ZCCM was privatized, each of the Appellants received from ZCCM a
letter
dated
24th
February,
2000
headed
“TRANSFER
OF
EMPLOYMENT FROM ZCCM TO MOPANI COPPER MINES (MCM)
PLC”.
On the same date, the Respondent wrote each Appellant
offering each employment.
On 19th October, 2000, the Respondent wrote each Appellant
notice of Termination, in which the relevant, part reads as follows:“You will be paid your redundancy package which is
similar and equal to a retirement package as follows:(i)
Accrued benefits kept in Trust, calculated.
(a)
28 months’ pay plus one month’s pay for each
completed year of service pro rata
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(ii)
(b)
One month’s pay in lieu of notice
(c)
Repatriation allowance
Benefits for your service with Mopani Copper Mines
Plc will be calculated on pro rata basis and added to
your benefits in Trust.”
The trial Court observed that the Appellants complained
of not having been paid their repatriation allowances, yet their
only witness in cross-examination admitted that all the
Appellants received their Trust funds which comprised 28
months pay plus one months’ pay for each completed year of
service pro rata and repatriation allowance.
The Court further observed as follows:“It is very obvious that the Plaintiff did not properly
understand the import of paragraph (1) on the terminal
benefits as contained in the letters of 24th February, 2000
and 19th October, 2000.
What they are claiming now
would amount to receiving the benefits twice under
paragraph (i) (a) (b) and (c) if the Defendant paid them
these benefits.”
We agree with all of the Courts’ observations.
The Appellants
did not properly understand paragraph (i) on the terminal benefits
as contained in the letters of 24th February, 2000 and 19th October,
2000.
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We equally agree that all the Appellants did not appreciate
that although it appeared that they were being employed by the
Respondent anew, they were infact transferred from ZCCM to the
Respondent and their services with ZCCM were not broken.
On the evidence on record, the Court was satisfied that all the
Appellants were paid their repatriation upon their separation with
the Respondent.
We uphold this finding.
We, therefore, find no merit in the
whole appeal. It is dismissed. Each party will bear its own costs.
…………………………………..
E.L. Sakala
CHIEF JUSTICE
…………………………………..
H. Chibomba
SUPREME COURT JUDGE
…………………………………..
P. Musonda
SUPREME COURT JUDGE