Pension Cases

1.
Pension Benefit
Ngala & Another v Anti-Corruption Commission
Facts
The applicants were employees of the respondent who were engaged on permanent
and pensionable contracts of service on 1 st July and 1st August 2015 respectively.
Following their resignations from employment, the applicants demanded to be paid their
terminal benefits which have not been paid to date despite the respondents having
removed the applicants from its payroll
Principles
-The courts addressed the meaning of similar allowance that’s provided for in Article
266 and the courts stated similar allowance used in Article 266 in defining what a
pension benefit is can only refer to allowances that are similar or akin to a pension,
gratuity or compensation.
-The courts stated that one is entitled to be retained on the employer’s payroll if not paid
pension benefit on the last day of employment. However, the courts further stated that
for one to be entitled to this, the termination of employment must be within the ambit of
the law such as termination caused by retirement, redundancy, invalidity and not upon
resignation.
-Therefore, from the foregoing case, for one to claim a pension benefit, the terminal
benefits must be similar or akin to a pension, gratuity or compensation and the pension
benefit must be triggered by something within the ambit of the law such as retirement.
Owen Mayapi & Others v Attorney General
Facts
The petitioners were challenging the constitutionality of two public service management
division circulars which provided for payment of basic salaries to retirees. The
petitioners were commissioned and non-commissioned officers serving in the Zambia
Air Force(ZAF). The conditions of service governing their employment provided that one
could opt to retire upon completing 10years of service. The petitioners applied for
voluntary retirement by giving notice. The respondent accepted there notice in
accordance with the defence Act. After retirement, the retirees were paid their basic
salary and allowance. After the circular was passed, it indicated that Zambia Air
Force(ZAF) should only pay the retirees their basic salary and exclude their allowances.
Principles
-The courts stated “what constitutes salary under Article 189 is a question of fact that
has to be proved or as provided for in the respective conditions of service. Hence, the
phrase retained on the payroll has to be interpreted in light of what constitutes salary in
a given case and may differ for particular employees.
-The courts further stated that the housing and utility allowances that the petitioners
were receiving during their employment encompassed their salary and were entitled to
these allowances as the constituted the salary received.
-Therefore, from the foregoing case, for one to claim a pension benefit, the provisions of
Part XIV must be provided on a case to case basis.
Anderson Mwale & 2 Others v Zambian Open University
Facts
The petitioners had attained their retirement age and were not given their pension
benefit thus causing them to be put on the respondent’s payroll. The respondent
decided to remove the petitioners from the payroll.
Principles
-The courts stated “it is evident from the plain language of Article 187(3) of the
Constitution that the framers of the constitution intended that a pension benefit to which
clauses (1) and (2) of Article 187 should apply is a pension benefit which was granted to
an employee by or under an Act of Parliament.
-Therefore, from the foregoing case, for one to claim a pension benefit, reference must
be made to a particular law that grants for the pension benefit.
Gilford Malenji v Zambia Airports Corporation Limited
Facts
The petitioner alleged that he had not been paid his terminal benefits in form of gratuity,
accrued leave days, housing allowance, social tour allowance and repatriation fees. The
respondent did not pay the benefits on his last day of work but were only paid two
months after expiration of his contract.
Principles
-The courts stated that according to the case of Ngala & Another v Anti-Corruption
Commission, not every terminal benefit has the characteristics of a pension benefit.
The courts further stated that the definition of gratuity provided for in the foregoing case
was based on a dictionary definition as at the time the case was been heard, The
Employment Code Act, was not law. Therefore, the courts adopted the definition of
gratuity provided for in the Act.
-The courts further relied on the decision in the case of Anderson Mwale & 2 Others v
Zambian Open University and stated “it was therefore, incumbent upon the Petitioner
to provide evidence that the gratuity in issue was a pension benefit granted to him under
a relevant provision of the law. The Petitioner however, failed to adduce such evidence
before Court.”
-Therefore, from the foregoing case, for one to claim a pension benefit, reference must
be made to a particular law that grants for the pension benefit.
McQueen Zaza v Zesco
Facts
On 10th July, 2015 the Petitioner was employed as Principal Legal Officer on
permanent and pensionable basis by the Respondent subject to a successful
probationary period of six (6) months. He accepted the offer and reported for work on
8thSeptember, 2015.The six months’ probation period ended on 8thMarch, 2016. On
23rd May, 2016 the Petitioner’s employment was terminated under clause 12.3 of the
ZESCO conditions of
service citing ‘separation’ attributed to improving the quality of service to its clients.
Principles
-The terminal benefits must be similar or akin to a pension, gratuity or compensation
and the pension benefit must be triggered by something within the ambit of the law such
as retirement.
Levy Mwale v Zambia National Broadcasting Corporation
Facts
On 20th March, 2000 he was employed by ZNBC as Human Resource Officer.
However, he was on 311t December, 2018 granted early retirement and that his last
salary was paid on 31st December, 2018.
Principles
-Our simple response however, is to take the same position that we have taken in our
previous decisions where we made it clear that unless the interpretation of a statutory
provision results in absurdity, words used in a statute must be given their ordinary
meaning and that the literal rule of interpretation should thus be applied
-Retention on payroll is meant for continued payment of one's salary until the pension
benefit is liquidated in full and not for the purposes of disbursing pension
benefits by instalments as was done in this case.
2. Portability of Pension Benefits

Standard Chartered Bank Plc V Willard Solomon Nthanga and 402 Others
Principles
A member leaving a pension scheme was entitled to full portability of the benefits by
either immediate payment or transfer to a pension scheme of his choice.
3. International Convention
Peter Zulu and 118 Others V Standard Chartered Bank Ltd
Principles
It may be necessary or desirable to look at conventions to which Zambia is a member
for guidance.
4. Trusts
Duties of Trustees
Best financial interest of the beneficiaries
Cowan V Scargill
“…..Under a trust for the provision of financial benefits, the paramount duty of the
trustees is to provide the greatest financial benefits for the present and future
beneficiaries.”
Loyalty and faithfulness
Regal Hastings v Gulliver
The liability arises from the mere fact of a profit having, in the stated circumstances,
been made.
Lewis V Nobbs
the trust property included bearer bonds which were in the sole control of one trustee.
When this trustee went off with the bonds in his custody, the other trustee was held
liable because by his negligence he had facilitated the misappropriation.
Duty to trust and personal interest must not conflict
Bray v Ford [1896] AC 44
“it is an inflexible rule of equity that a person in a fiduciary position is not … entitled to
make a profit. He is not allowed to put himself in a position where his interest and duty
conflict.”
Re Bales and British Land Co’s Contract
a sale was not set aside where the trustee had retired 12 years before he purchased the
property.
Exp. Lacey (1802)
A beneficiary’s ability to set aside the transaction applies even if the property was
bought at a public auction
Remuneration of Trustees
A trustee must not use his position in order to obtain paid employment.
Williams V Barton
a Stockbroker trustee had to hand over to the trust the commission he earned on
valuation by his firm of the trust assets.
Re Dover Coalfield Extension Ltd
This is not so, if the trustees were directors before they become trustees
Re Gee
Or if the trustees were appointed directors without any reliance on the trust votes
Cradock v Piper
a solicitor – trustee is entitled to profit costs in litigation where he acts as solicitor for
himself and for a co-trustee in relation to the trust (or as a trustee and on behalf of a
beneficiary)
Standard of duty
Whiteley v Learoyd
The trustee must invest the trust property wisely acting as an ordinary prudent man
making investments:
Speight v Gaunt (1883) 22 Ch D 727
‘a trustee ought to conduct the business of the trust in the same manner that an
ordinary prudent man of business would conduct his own, and that beyond that there is
no liability or obligation on the trustee’
Duty of Care
Nestle v National Westminster Bank Plc
they are to be judged on their overall performance and not the failure or success of a
particular investment.
Bartlett V Barclays Bank Trust Co. Ltd
A trust company with specialist staff will be judged on a different level to an unpaid,
family trustee

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2. Portability of Pension Benefits

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