Mulimi v Sedom (IRC 23 of 2002 ) (23 of 2002) [2006] MWIRC 54 (05 May 2006);




MATTER NO. 23 OF 2002


MULIMI…………………………………………………………………... APPLICANT


SEDOM ……………………………………………………. …………. RESPONDENT


Applicant; present
Mayere; For respondent, Human Resource and Administration Manager
Gowa; Official Interpreter


Terminal benefits-Severance allowance-Pension benefits-Section 35(1) Employment Act 2000-Amendment to Section 35 Employment Act-Amendment declared unlawful ,unconstitutional and void ab initio-Whether the invalidity has retrospective effect-Severance allowance-Claim-to comply with section 35(8)Employment Act.

Upon hearing the applicant and upon hearing the respondent the issues were trimmed down to Malawi Savings Bank loan which the applicant had an issue with and to severance allowance and pension benefits. The other issues were disposed of at preliminary stage.

Malawi Savings Bank Loan: The applicant was advised to produce documents to show the status of his loan at the time of termination. The applicant was given time to get these documents from the bank. However, at the time of writing this judgment which is 30 days after the last date of hearing the applicant had not submitted these documents. It is therefore found that the applicant’s claim for overpayment of the bank loan was not proved. It is dismissed.

Severance allowance and pension: The applicant claimed severance allowance for four years. The respondent argued that the applicant was not entitled the severance allowance because according to law prevailing then, the applicant was only entitled to the greater of two amounts between severance allowance and pension. In the applicant’s case the pension was greater than the severance allowance hence the applicant received the pension benefits.

The Issue

The issue is whether the applicant was entitled to both pension and severance allowance.

The Law

The issue is determinable by referring to the meaning of a declaration of the type made by the court in Khawela and ors V Commercial Bank of Malawi [Civil Cause Number 7 of 2004 (unreported)]. One of the successful orders sought by counsel in that case was a declaratory order that the amendment was unlawful, unconstitutional and void ab initio.

In pronouncing the order the court held that:

In the face of the law, therefore, the minister acted in excess of the powers conferred by section 35 of the Employment Act and indeed section 58(1) of the Constitution and therefore the purported amendment is invalid and is hereby quashed on that account.

The amendment that sought to make only one payment between pension and severance allowance was declared null and void ab initio. Therefore the court finds that the benefit for which the legislature intended for the applicant before the amendment be bestowed upon him as the so called amendment disentitling the applicant from severance allowance is null and void from inception and has no legal significance whatsoever.

However, in any claim for severance allowance, the applicant must show that he presented his claim to the District Labour Officer within three months of its being due pursuant to section 35 (8) of the Employment Act which provides that:

A complaint that a severance allowance has not been paid may be presented to a District Labour Oficer within three months of its being due and if the District Labour Officer fails to settle the matter within one month of its presentation, it may be referred to the court, in accordance with section 64 (2) or 64 (3), which, if the complaint has been proved, shall order payment of the amount.

In the instant case it was not shown that the applicant in fact complied with the above provision. In the absence of such compliance, the court must dismiss the action; see Sokalankhwazi V Sugar Corporation of Malawi [Civil Cause Number 3204 of 2003 (unreported)]. This action is accordingly dismissed on that ground.

Pronounced this 5th day of May 2006 at Blantyre

Rachel Zibelu Banda