MTSHIYA
J: On
15 February 2013, the applicant, who was employed by the second
respondent as an Accounting Officer, filed this application seeking a
review of the first respondent's decision made on 13 April 2012.
The first respondent's decision was a refusal to extend the
applicant's retirement age from 60 years to 65 years.
On
12 March 2012, the applicant had sent the following memorandum to the
first respondent:-
“Reference:
Extension of Retirement up to my sixty–fifth birthday
Date:
12th
March, 2012
Pursuant
to Section (6) of S.I.119 of 1995 subsection (1) and (2) I humbly
request the Chief Executive to extend my service to the Authority up
to my sixth fifth birthday. I turned fifty nine years old on the 27th
of February 2012.
Enclosed
herewith please find a statement of my accrued pension and monthly
annuity for your attention. Our pension scheme was eroded in the
economic crisis that has bedevilled our economy in the last decade.
The other personal retirement benefit policies we had secured with
Insurance companies to help ensure a comfortable retirement, also
collapsed. My sick old mother who has to visit a Medical Doctor
nearly every fortnight is my dependent on the Authority medical aid
scheme. What I will pay in subscription to the scheme to cover her
membership will take up half of up my monthly annuity and removing
her from the scheme will be signing her death warrant.
I
understand that the Authority under your direction is trying to
revive the pension fund by making some capital injections and I would
be grateful if I will be permitted to serve for five more years while
the recapitalization works to make a return to give retiring
employees a worthwhile pension, not a possibility of going into a
life of penury and death in a few years. I am still in good health
and would be happy to contribute towards bringing the Batoka Gorge
Scheme on stream. I believe there will be a lot of work at Batoka and
I would be happy to give a hand in this noble project.
GM
JONGA”
The
actual response from the first respondent dated 13 April 2012,
declining the extension of the applicant's retirement age, read as
follows:-
“Dear
Mr Jonga
EXTENSION
OF RETIREMENT UP TO 65 YEARS
Reference
is made to your memorandum dated March 12, 2012 concerning the above
mentioned subject.
I
wish to advise that your request to remain in the employment of the
Authority until your attainment of the age of 65 years has been
noted. However, please note that the Authority's policy on
retirement is that employees retire at the attainment of 60 years
save for the ex CAPCO employees who are expected to retire upon the
attainment of the age of 65 years.
In
view of the foregoing, I regret to advise that your request to have
your retirement age extended has not been granted.
Yours
sincerely
ENG
MC MUNODAWAFA
CHIEF
EXECUTIVE”
The
applicant took issue with the first respondent's decision of 13
April 2012 and addressed the following memorandum to the first
respondent:-
“Subject:
Extension
of Retirement to 65 years
I
acknowledge, with gratitude, your response to my request to extend my
services to the Authority up to my 65th
birthday.
I
would, however, like to bring your attention to the meagre pension
benefits (less than the ILO recommended pension) that I will receive
on retirement due to collapse of the pension scheme because of
hyper-inflation and the collapse of the Zimbabwe Dollar over the
period 2004 to 2008. This resulted in the loss of all pension
benefits accumulated before 2008. My current pension benefits are
therefore calculated as 3 years (since the resuscitation of the
pension scheme in 2009) and not 23 years as is the actual duration of
time in service.
The
reason I requested to extend my service with the Authority was to
enable me build up a decent pension and recoup some of the losses so
that I do not become destitute on the day that I leave the Authority.
I
therefore, request the Authority to re-consider extending my service
to 65 years or to boost up my pension benefits to match that of my
fellow Zambian counterparts who have given the Authority a similar
length of service, i.e. by meeting the shortfall of US$183,467.97.
Bearing in mind that our salaries are denominated in United States
Dollars (US$) and the fact that the Authority receives its money in
US$, it is only logical for the Authority to compensate employees for
pension losses considering that debts from Zimbabwe Power Company at
that time were maintained in US$ and these debts are being liquidated
today in US$.
I
look forward to your consideration and fair disposal of this matter.
Best
regards.
G.
JONGA”
The
applicant did not receive any joy from the first respondent who, on
30 January 2013, reiterated his earlier decision in the following
manner:-
“SUB:
Extension of Retirement to 65 Years
I
refer to your request on the above subject matter in your
correspondence dated 8th
January 2013. Kindly accept my apologies for the delayed response.
After
thorough consideration of your request to extend your retirement to
65 years, I regret to advise that the request is declined.
I
wish to advise that the erosion of pensions affected all Zimbabweans
and that in response to the problem, ZRA injected US$750,000 to boost
its employees' pension coffers. I advise that you take up this
issue with the Trustees of the Pension Scheme.
Regards,
ENG.
M.C. MUNODAWAFA”
The
above represents the first respondent's final position on the issue
and hence this application for review by the applicant.
The
applicant sets out his grounds of review as follows:-
“1.
The 1st
Respondent did not apply his mind properly in arriving at the
decision he made.
2.
The 1st
Respondent's decision is irrational and unreasonable, so grossly
unreasonable to so striking a degree that no reasonable person,
applying his or her mind properly, would have so arrived at a similar
decision.”
Having
outlined his grounds of review as indicated above, the applicant then
seeks the following relief:-
“IT
IS ORDERED THAT:
1.
The decision by 1st
Respondent on the 30th
day of January 2013 declining to extend Applicant's retirement age
to his sixty fifth birthday be and is hereby set aside.
IT
IS CONSEQUENTLY ORDERED THAT:
1.
The Applicant's retirement age is hereby extended from his sixtieth
birthday to his sixty fifth birthday.
2.
1st
and 2nd
Respondent to pay costs of this application jointly and severally the
one paying the other to be absolved.”
The
application is opposed.
In
addition to a response to the merits of the case, the respondents
have raised two preliminary issues (i.e. points in
limine).
The respondents argue that:-
(a)
the dispute, being in respect of a labour matter, this court has no
jurisdiction to entertain the application; and
(b)
the first respondent has been improperly cited.
In
challenging the jurisdiction of this court over the matter, the first
respondent relied on section 89(6) of the Labour Act [Cap
28:01]
(the Labour Act) which provides:-
“No
court, other than the Labour Court, shall have jurisdiction in the
first instance to hear and determine any application, appeal or
matter referred to in in subs (1)”.
Subsection
1 of section 89 of the Labour Act provides as follows:-
“(1)
The Labour Court shall exercise the following functions –
(a)
hearing and determining applications and appeals in terms of this Act
or any other enactment; and
(b)
hearing and determining matters referred to it by the Minister in
terms of this Act; and
(c)
referring a dispute to a labour officer, designated agent or a person
appointed by the Labour Court to conciliate the dispute if the Labour
Court considers it expedient to do so;
(d)
appointing an arbitrator from the panel of arbitrators referred to in
subsection (6) of section ninety-eight to hear and determine an
application;
(d1)
exercise the same powers of review as would be exercised by the High
Court in respect of labour matters.
(e)
doing such other things as may be assigned to it in terms of this Act
or any other enactment.”
Given
the above provisions of the law, which grant the Labour Court the
same powers of review as the High Court in labour matters, (i.e.
section 89(1)(d1) above), Mr
Moyo,
for the respondents, strongly argued that it was therefore not the
business of this court to deal with this application.
In
response to the respondents' contention, Mr Tazvitya,
for
the applicant, submitted that although employment related, the
decision was administrative in nature and delivered by an
administrative authority i.e. the first respondent. He said the
decision was not necessarily based on contract. To that end, he
relied on the following definition of “administrative action”
given under section 2(1) of the Administration of Justice Act [Cap
10:28]
(the Act):-
“Administrative
action means an action taken or decision made by an administrative
authority.”
The
same section of the Act defines administrative authority as follows:-
“administrative
authority means any person who is –
(a)
an officer, employee, member, committee council, or board of the
State or a local authority or parastatal; or
(b)
a committee appointed by or in terms of any enactment; or
(c)
a Minister or Deputy Minister of the State; or
(d)
any other person or body authorised by any enactment to exercise or
perform any administrative power or duty.”
The
first respondent is an officer of a parastatal who performed an
administrative action.
Mr
Tazvitya
then argued that the High Court had inherent jurisdiction to deal
with the matter. He said the Labour Court lacked the jurisdiction
which would enable it to issue a declarator leading to the setting
aside of the first respondent's decision.
The
issue of jurisdiction being raised by the respondents has been raised
before in similar matters. However, it cannot be argued outside the
current provision in section 171 of the Constitution of the Republic
of Zimbabwe as read together with section 13 of the High Court Act
[Cap
7:06]
(the High Court Act), which states that:
“The
High Court shall have full original civil jurisdiction over all
persons and all matters within Zimbabwe.”
Section
171 of the Constitution of Zimbabwe reinforces that jurisdiction by
stating that:
“The
High Court has original jurisdiction over all
civil
and criminal matters throughout Zimbabwe.”
Given
the Constitutional provision, it means that no other Act of
parliament can oust the jurisdiction of the High Court in all civil
matters in Zimbabwe. Accordingly, except for cases expressly reserved
for the Constitutional and Supreme Courts, the High Court can, in
terms of our law, deal with all
civil matters,
notwithstanding the fact that they may be statutorily reserved for
the Labour Court or any other lower court (i.e. concurrent
jurisdiction exists). It would, in my view, be unconstitutional for
the High Court to close its doors to litigants with respect to any
civil matters.
In
view of the foregoing, I am unable to uphold the respondents' point
in
limine
regarding jurisdiction. This court can entertain the application.
Furthermore
apart from the Constitutional provision quoted above, in U-Tow
Trailers
(Pvt) Ltd v
City of Harare & Anor
2009 (2) ZLR 259 (H) MAKARAU J, as she then was, in making reference
to the Administrative Justice Act, said:-
“Section
4 of the Act provides that any person who is aggrieved by the failure
of an administrative authority to comply with section 3 therein may
apply to the High Court for relief. It is common cause that the
applicant filed this application challenging the decision of the
first respondent summarily to cancel the lease agreement. It filed a
court application in terms of the High Court Rules. While the
application does not make any reference to the provisions of the Act,
in my view it makes allegations that fall squarely within the
provisions of the Act. I was satisfied before I referred the question
to the parties for further argument that the allegations and
contentions made by the applicant in its court application fell
within the purview of the Act even if the Act was not specifically
invoked. In my view, generally, it is not necessary for an applicant
specifically to plead the law that it seeks to rely on as long as the
necessary averments are made therein to sustain a cause of action
under the applicable law unless the law under which he or she is
proceeding requires that certain averments be specifically pleaded.
The court is not a slave to the form of the law. It is always a slave
to justice whom it must always serve.
For
the avoidance of doubt, if I have erred in allowing the applicant to
bring a deformed application before the court and the correct
position is that it was necessary for the applicant specifically to
invoke the provisions of the Act, I will condone that oversight in
terms of rule 4C of the High Court Rules, 1971.
As
correctly pointed out by the first respondent, this is not an
application for review. It is an application for the setting aside of
an administrative decision on the basis that it was not arrived at
fairly and thus, at law, contravenes the Act. In view of the fact
that the applicant succeeds on a matter that it did not specifically
raise in its initial heads of argument, I will not punish the first
respondent with an award of costs. The same does not apply to the
second respondent.”
In
view of the above, I am inclined to agree with the applicant that in
the review process what he seeks is the setting aside of an
administrative decision/action. That challenge, in terms of section 4
of the Administrative Justice Act, can be placed before this court.
The remedy sought and the reasons for it are clear. Accordingly,
notwithstanding the fact that the applicant may not have specifically
mentioned the statute relied on in placing the matter before the
court, the cause of action is clear and can be entertained by this
court.
I
shall now deal with the second point in
limine.
The
respondents are challenging the citation of the first respondent
arguing that it is an office title and not a legal person or natural
person. In putting forward this challenge, the respondents relied
heavily on JDM
Agro-Consult & Marketing (Pvt) Ltd v
The
Editor of the Herald Newspaper & Anor
HH61/07 where it was said:-
“The
editor of a newspaper is the person responsible for the editorial
content of such newspaper. It is a position that is occupied for the
appropriate period by such individual employed in that capacity. It
is therefore an occupation wherein the occupant can change from time
to time. It is not a natural person or legal person and there is no
person identified by that name. The citation of the 1st
Defendant in that name is therefore irregular. It mattered not in my
view that the two Defendants entered appearance to defend and
proceeded to file a plea. The process of filing pleadings in that
name would not have imbued the summons with any form of legality.
There was no summons for them to plead given that there were no
persons answering to the names on the summons. They cannot be
identified as such. This is not a mis-description which can be
amended by alteration of the names on the summons, nor is it a
substitution. You cannot amend or substitute something which does not
exist. In the premises it is my finding that the proceedings before
me are a nullity.”
The
above decision was, in my view, correct because it related to delicit
proceedings where personal liability was in issue.
That
is not the case in
casu.
The
applicant seeks to challenge the decision of the first respondent in
a totally different way as would be the case in delict. Furthermore
the position of the first respondent is statutorily created and
cannot therefore be equated to that of a Newspaper Editor.
Paragraphs
1 and 4 of Art 11 of the Zambezi River Authority Act [Cap
20:23]
provide as follows:-
“1.
There shall be a Chief Executive to the Authority who shall, subject
to the approval of the Council, be appointed by the Board and shall
be a national or resident of the Contracting State other than that in
which the Authority's Head Office is situated. The provisions of
paragraph (b) of Article 13 shall apply, as appropriate, in relation
to the appointment of the Chief Executive.
2.
…………..
3.…………..
4.
Subject to the control of the Board, the Chief Executive shall be
responsible for the day-to-day management of the operations and
property of the Authority.
5.…………..”
The
first respondent's post exists in terms of the above law and the
decision the first respondent made is in line with the definitions
given under section 2(1) of the Act.
It
is the day-to-day administrative decision of the first respondent
that the applicant seeks to have set aside. Indeed in review
applications the decision maker ought to be cited. That is what the
applicant has done in
casu
and the decision maker has since responded. There is no hunting for
the decision maker. I am therefore unable to uphold the respondents'
second point in
limine.
I
shall now proceed to consider the merits of the case.
The
applicant admits that the decision to extend or not to extend the
retirement age from 60 years to 65 years was a discretionary one on
the part of the first respondent. He, however, submitted that the
decision by the first respondent to deny extension of the retirement
age was “irrational and unreasonable.”
The
applicant reasoned that the first respondent had not taken into
account the effects of the economic decline in Zimbabwe in 2008 which
led to the demise of the Zimbabwean Dollar. That economic decline
had wiped out the pension contributions he had made over a period of
19 years. He argued that it would not be “morally acceptable” for
him to survive on paltry contributions made over a period of 4 years
i.e. from 2009 to 27 February 2013 when he reached the normal
retirement age of sixty years. The applicant also argued for parity
with his Zambian counterparts who had not experienced the same
economic problems that affected Zimbabwean employees.
On
their part the respondents argued that the applicant's request was
personal and contrary to the norm. The respondents were not “keen
to create a precedent” which would have adverse effects on the
Authority. They argued that the discretion had been used reasonably.
Furthermore, they argued, the Authority had addressed the issue of
pensions by injecting US$750,000-00 into pensions as a booster. That
move had been a decision of the Contracting States who knew how the
economic situation in Zimbabwe had affected Zimbabwean employees of
the Authority.
I
find merit in submissions made by the respondents. Whilst on the
moral plane it may appear as if the decision was harsh, I am unable
to fault the manner in which the first respondent used his
discretion. It was in line with the Authority's position on
pensions. I am unable to accept that the discretion was used in an
irrational and unreasonable manner. The applicant has not
demonstrated that to me.
In
Zambezi
Proteins (Pvt) Ltd & Others v
Minister
of Environment & Tourism &
Anor
1996 (1) ZLR 378 (H) GARWE J, as he then was, quoted from Professor
Feltoe's book, Guide
to Zimbabwean Administrative Law
(p 31) as follows:-
“As
the function of the Court is not to delve into the substantive
correctness of administrative decision, but only to ascertain whether
there have been any procedural irregularities or action of an ultra
vires
nature, it would seem to follow that on review the Court has no power
to overturn a decision simply because it considers it to be
unreasonable. If it was to do so, it would in effect be substituting
its own decision in place of the decision of the body empowered to
make this decision.”
The
learned author remarks further:
“In
certain circumstances, however, the courts will set aside decision of
a grossly unreasonable nature. A well-recognised ground for doing
this is where the decision is not only grossly unreasonable but is so
grossly unreasonable that it is only explicable on the basis of male
fides,
ulterior motive or failure of the decision-maker to apply its mind to
the decision it had to make.”
Paragraph
2 in the above quoted passages sets out the grounds upon which the
court may interfere with an Administrative decision. Those grounds
have not been proved in
casu.
The
applicant does not deny that the Authority had indeed boosted the
pension fund by injecting US$750,000-00. The applicant, in his
memorandum of 12 March 2012, acknowledges that fact. That in my view
is clear evidence that, although not to the satisfaction of the
applicant, the Authority had indeed paid attention to his
predicament. It was within that factual situation that the first
respondent used his discretion. The first respondent accordingly
referred the applicant to the Trustees of the Pension Scheme. In any
case, it is normal practice for many companies to inject new blood
into their staff structures by adhering to the stipulated retirement
age. I agree that in rare cases some employers/companies have
extended retirement age upon application by employees or upon the
employers/companies themselves continuing to require certain skills
of employees who ought to be retired. That, however, is not the norm
and hence the reason for the requirement to apply for extension.
Clearly, if there is a set normal retirement age, extension is not
automatic.
In
casu,
the request for extension did not find favour with the first
respondent and he explained why he could not accede to the request. I
did not find his reasons distant to a reasonable exercise of his
discretion. I am therefore, unable to interfere with the decision
reached.
The
application is dismissed with costs.
Messrs
Sibanda & Partners,
Applicant's Legal Practitioners
Messrs
Scalen & Holderness,
Respondents' Legal Practitioners
