Law Commons^™

Bizwayo Newton Nkunika V Lawrence Nyirenda And Electoral Commission Of Zambia 2019/Ccz/005 (1 March 2021), O'Brien Kaaba

SAIPAR Case Review

No abstract provided.

Editorial Note, O'Brien Kaaba, Kafumu Kalyalya

SAIPAR Case Review

No abstract provided.

Toyota Motors South Africa (Pty) Ltd V Numsa Obo Njini And Others (D 692/19 [2022] Zalcd 12 (14 July 2022), Stephen Nkosi

SAIPAR Case Review

This was an application in terms of s 145 of the Labour Relations Act 66 of 1966. Toyota sought to have the decision of the CCMA, ordering the re-instatement of Mr Lungile Njini - then an employee of Toyota for 17 years – be set aside, and that his dismissal be declared fair. The case represents an interesting interplay between the quest for discipline and productivity in the workplace and the right to exercise one’s constitutional right to culture as provided for in s 30 of the Constitution of the Republic of South Africa Act. This note is divided into …

Charity Oparaocha V Winfrida Murambiwa (2004) Z.R. 141 (S.C.), Milambo Chibbonta-Pupwe

SAIPAR Case Review

No abstract provided.

Chimanga Changa Limited V Export Trading Limited (Scz Appeal No. 3 Of 2022), Ntemena Mwanamwambwa, Chenela Mwale-Simbotwe

SAIPAR Case Review

The Supreme Court’s decision in Chimanga Changa has set a clear and resounding tone as well as a sound precedent in the Jurisprudence of Zambian Corporate Insolvency law, specifically in relation to how voluntary business rescue proceedings should be commenced, when they commence and most importantly that an application objecting to the commencement of business rescue proceedings pursuant to section 22(1), does not answer to the definition of a legal proceeding for purposes of effecting a moratorium within the confines of section 25 of the Act.

S V Lifumbela And Others 2022 (1) Nr 205 (Sc), Dunia P. Zongwe

SAIPAR Case Review

The Lifumbela case stems straight from the High Treason Trial, Namibia’s longest and – probably – most expensive judicial saga. In S v Lifumbela, the Supreme Court of Namibia had to settle an appeal against the convictions and sentences of 30 accused implicated in the High Treason Trial. Despite the big stakes involved in this matter, the apex court did not manage to rise to this once-in-a-lifetime occasion and seize this historic moment.

By confirming that the appellants committed high treason, murder, and attempted murder on the basis of conspiracy (i.e., an incomplete crime), the Namibian Supreme Court upended the …

Emporium Fresh Foods Limited T/A Food Lovers Market And Gourment Market Limited V. Kapya Chisanga Caz Appeal No. 44/2021, Chanda Chungu

SAIPAR Case Review

The Respondent, Mr. Kapya Chisanga was alleged to have disclosed information to people, without authority. Following this, he was summarily dismissed. The Respondent challenged his dismissal in the High Court alleging that his dismissal was wrongful, unlawful, and unfair. The High Court held that the Respondent’s dismissal was wrongful, unlawful, and unfair, and granted 24 months salary as damages. The employer subsequently appealed the matter to the Court of Appeal for determination.

The Court of Appeal held that before an employer summarily dismisses an employee, the employee must be subject to a due process. According to the Court of Appeal, …

Zambia Electronic Clearing House Limited V. James Kalengo Caz Appeal No. 239 Of 2020, Chanda Chungu

SAIPAR Case Review

The Court of Appeal’s decision in James Kalengo is crucial because it demonstrates that the concept of a legitimate expectation of renewal, as a principle and concept exists under Zambian employment law. Whilst an employer does retain the discretion to renew a contract of employment or not when it is due to expire, an employee may have a legitimate expectation of renewal if there is any past practice, prior promise or bad faith/mala fides in relation to the renewal.

Mark Tink And Others V. Lumwana Mining Company Limited Caz Appeal No. 41/2021, Chanda Chungu

SAIPAR Case Review

The decision in Mark Tink and Others v. Lumwana Mining Company Limited is an important decision because it clarifies and restates that law that a valid reason, that is substantiated is required when an employer initiates termination of the contract of employment.

This article critiques the approach of the Court of Appeal as it relates to the award of damages. This article seeks to provide clarity as it relates to the award of damages, particularly the way is granted and justified. It is suggested that when the opportunity arises either the Court of Appeal or the Supreme Court should revise …

Molosoni Chipabwamba And 12 Other Displaced Village Owners V Yssel Enterprises Limited Appeal No.104/2020 (Zmca) 2022, Mwami Kabwabwa

SAIPAR Case Review

The issue of customary land tenure and customary land rights is an important issue that has serious implications on customary communities that occupy land under customary tenure. Considering the raising demand of customary land by both local and international investors the courts play an important role in protecting the interests and rights of customary communities and ensuring that such communities are not exploited in the alienation process of customary land and in the procedures of converting from customary tenure to statutory where it is necessary and where the benefits of converting to statutory tenure outweigh the benefits of customary tenure. …

Vol. 5, Issue 3 Table Of Contents

SAIPAR Case Review

No abstract provided.

Chief Justice Mogoeng V Africa4palestine And Others [2021] Jsc/819/20; Jsc/825/20; And Jsc/ 826/20, Dunia P. Zongwe

SAIPAR Case Review

This is a judgment against the first judge among his peers: the Chief Justice. Handed down by the Judicial Conduct Committee (JCC) of South Africa’s Judicial Service Commission (JSC), this judgment involves the remarks made in 2020 by Chief Justice Mogoeng Mogoeng at a webinar hosted by a pro-Israel, conservative, Zionist newspaper. During that webinar, Mogoeng criticized the South African government’s official policy on the Israel-Palestine conflict. Following Mogoeng’s faux pas and a loud public outcry, three non-governmental organizations (NGOs) lodged complaints with the JCC against Mogoeng for his Israel comments.

This appeal judgment largely confirms the JCC’s earlier complaint …

Eva Chiboni V. New Future Finance Company Limited 2020/Hpc/0776, Chanda Chungu

SAIPAR Case Review

The decision in Eva Chiboni has been seen by some as a victory for vulnerable groups of people in Zambia, compared to bigger entities that do at time take advantage of parties with less bargaining powers. However, as this article has demonstrated, it reached an outcome not supported by principles of law, particularly those relating to the need to provide lucid and clear evidence of a vitiating factor or illegality to declare a contract null and void.

Editorial Board

SAIPAR Case Review

No abstract provided.

Livingstone Motor Assemblers Limited (In Receivership) V Indeco Estates Development Company And Others (Supreme Court Judgment No. 1 Of 2013), Ntemena Mwanamwambwa

SAIPAR Case Review

The appeal stems from a winding-up petition filed in the High Court by the respondents seeking an order to commence winding-up proceedings as well as the appointment of a liquidator in respect of the appellant, Livingstone Motor Assemblers Limited. The latter was heavily indebted to several creditors, including the respondents and the Zambia National Commercial Bank (ZANACO) which had commenced receivership proceedings and appointed a receiver/manager extra judiciously, prior to the High Court granting the winding-up order. Disgruntled by the grant of the order, the receiver/manager made an application to vary it so that only he would retain possession of …

Ackim Chirwa, Levy Joseph Ngoma And U-Fuel (Z) Limited V. Mini Mart Development Corporation Limited Caz Appeal No. 68/2021, Chanda Chungu

SAIPAR Case Review

No abstract provided.

Standard Chartered Bank Plc V Celine Meena Nair [2019] Zmca 221, Ntemena Mwanamwambwa, Milambo Chibbonta-Pupwe

SAIPAR Case Review

This case is one of a kind and therefore significant for several reasons in the jurisprudence of Zambian Employment Law. The case highlights that the employer-employee relationship is one founded on the implied term of mutual trust and confidence which entails that both parties must accord each other due trust and respect regardless of status.

The decision in this case, sets a clear and stern tone in cases of constructive dismissal bordering on toxicity within the working environment. Thus, employers are put on notice to adhere to their own grievance procedures particularly in cases involving bullying, harassment and victimization such …

Determining The Liability For Carriage Of Goods By Road In West Africa – Can Ohada Uniform Rules On Transport Be A Foundation?, Damilola Osinuga

Southern African Journal of Policy and Development

Economic integration has been on African leaders' lips since the Organization of African Unity was created in 1963. The justification for this is not implausible — to promote regional trade and ensure economic prosperity. On January 1, 2020, African nations opened their borders to duty-free trade of goods and services under the continental free trade agreement. Transport of commodities is without a doubt essential for market access and intra-African trade. The low purchasing power of the populace and the geography of the continent, which is made up of a sizable number of landlocked provinces, favours road transportation. However, in West …

Vol. 5, Issue 2 Table Of Contents

SAIPAR Case Review

No abstract provided.

Editorial Note, O'Brien Kaaba, Kafumu Kalyalya

SAIPAR Case Review

No abstract provided.

Vol. 5, Issue 2 Masthead

SAIPAR Case Review

No abstract provided.

Vol. 5, Issue 1 Masthead

SAIPAR Case Review

No abstract provided.

Chief Justice Mumba Malila And The Challenges Ahead: An Editorial, O'Brien Kaaba, Kafumu Kalyalya

SAIPAR Case Review

No abstract provided.

Vol. 5, Issue 1 Table Of Contents

SAIPAR Case Review

No abstract provided.

Chrismar Hotel Ltd V Stanbic Bank Zambia Ltd Scz Selected Judgment No 6 Of 2017 P. 160, Dunia P. Zongwe

SAIPAR Case Review

In the first semester of 2008, the appellant, Chrismar Hotel Ltd, needed finance to buy some equipment, including earth-moving equipment. It therefore solicited funds from the respondent bank, Stanbic Bank Zambia Ltd, with which it had held several accounts, obtained credit facilities (for example, mortgages and debentures), and established a longstanding relationship. The respondent bank agreed to lend money to the appellant hotel.

Thus, the hotel and the bank (hereinafter ‘the parties’) entered into eight distinct yet identically worded finance leases. For a total sum of 1.7 million US dollars, the eight leases each specified the amount that the respondent …

George Mwanza And Melvin Beene V Attorney General Select Judgment No 33 Of 2019, O'Brien Kaaba

SAIPAR Case Review

The case came to the Supreme Court by way of appeal from the High Court. The two appellants were inmates at Lusaka Central Prison. It turned out that the appellants were HIV positive and were on Anti-Retroviral Treatment (ART). The medical condition and treatment required that they be provided with food of a balanced diet in line with their medical condition.

The prison authorities, however, only provided limited quantities of maize sump for breakfast; maize meal (nshima) with dry sardines for lunch and super.2 The food was often rotten and contained foreign particles. Not only was it of of poor …

Finance Bank And Rajan Mahtani V Simataa Simataa Scz Appeal No. 11/2017, Chanda Chungu

SAIPAR Case Review

The employer settled an employment dispute with its former employee out of court. They bound their former employee to a settlement agreement that he would not speak badly of the employer or testify against them in future. He subsequently testified against his former employer and the employer sued for a refund of the settlement amount.

The court was of the view that only nominal damages (equivalent to K500) would be awarded merely to show that there had been a breach of the agreement not to testify. However, the amount was limited to a small sum of nominal damages as loss …

Zambia Revenue Authority V Matalloy Company Limited Scz/08/016/2020, Mwaba Mulenga Chileya

SAIPAR Case Review

Justice Mumba Malila supplements the jurisprudence on tax law in this judgment that deals with the obligation of a taxpayer in tax cases. The case focused on the responsibility of taxpayers to prove their eligibility for a tax credit from the Zambia Revenue Authority. Briefly, the case also discusses the concept of tax credits, and their use by taxpayers.

Saidi Banda V The People Scz Appeal No. 114 Of 2015), Mwaka Chizinga

SAIPAR Case Review

No abstract provided.

Charles Mushitu (Sued In His Capacity As Secretary-General Of Zambia Red Cross Society) V. Christabel M. Kaumba Scz Appeal No. 122/2015, Chanda Chungu

SAIPAR Case Review

An employee worked under a project that terminated and was then placed on unpaid leave for almost nine (9) months when she was appointed to another post in another town, Choma. The issue here was does the employee have any relief for being unpaid for the 9-month period?

The Supreme Court held that the employers conduct amounted to a fundamental breach of contract when the employee was placed on unpaid, forced, indefinite leave. Therefore, due to their failure to pay the employee whilst he was still an employee, the employer not only breached the duty to pay wages, which constitutes …