CHIKWEMBEYA v CFAO MALAWI LIMITED (Matter No 571 of 2009) (571 of 2009) [2010] MWIRC 8 (18 June 2010);

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IN THE INDUSTRIAL RELATIONS COURT

PRINCIPAL REGISTRY

MATTER NUMBER 571 OF 2009

BETWEEN

LEO CHIKWEMBEYA............................................................ APPLICANT

AND

CFAO MALAWI LIMITED.................................................... RESPONDENT

Coram Jack N’riva Deputy Chairperson

Applicant present

Monthly Mrs for the respondent

GowaCourt Clerk

N’riva DCP:

RULING

This matter was set down to consider some questions of law on severance allowance. The first question seems to be both of law and fact. But in the main the rest of the questions revolve around law. They thus can be dealt with by the court without member panellists of the Court.

***

The first question is whether the respondents have been rightly sued. This question arises from this fact: the applicant was initially employed by a company known as Mandala Motors Limited from 1963 to 2002. In 2002, Mandala ceased existing as corporation and its business was acquired by the respondent. This is the issue that, as I stated, does raise some factual disputes. The applicant argues that the respondent took over the business of Mandala whereas the respondent argues that the applicant’s contract started anew. Moreover, the respondent argues that it acquired only the assets and not liabilities. The respondent also showed the Court some document on the applicant’s personal file suggesting that Mandala paid him his termination dues. However, the applicant seems to have an issue with the amount of the payment and makes a claim therefor for severance allowance from the period of 1963-2003. The issue has some factual bearing which makes it still contentious. It is a question which cannot be resolved without member panellists. It therefore makes the question of law premature. I cannot even start to look at the law in section 32 of the Employment Act on transfer of obligation through transfer of employees to another employee. It is still cloudy whether the contract between the applicant and the respondent was a new contract all together.

The second question is: whether the claim for severance allowance between 1963 and 2002 is statute-barred. The third question is whether in 2002, the law allowed the applicant to payment of both severance pay and pension. The third question is whether the applicant was entitled to severance pay with interest.

We deal with the first with the issue of limitation of bringing a civil suit. The law requires that there should be a period within which an action can be brought before the Court. This is provided for in Limitation Act as well as other specific statutes. Whichever the case, an action has to be brought within the time allowed by the statutes. If an action is brought outside the limitation, the action is said to be statute-barred. In Stambolie v Commissioner of Police (below) the Court enunciated the rationale of having limitation period:


"It has been said that statutes of limitation are conservators without which society cannot wholly govern. They are founded on grounds of public policy and give effect to two maxims: First … the interest of the State requires that there should be a limit to litigation. Second …. the laws aid the vigilant and not those who slumber. They exist to prevent oppression; to protect individuals from having to defend themselves against claims when basic facts have become obscured with the passage of time.


The claims under the Employment Act have to be made within 6 years. This action having been made eight years later, the action is, once aging, statute-barred and the action cannot be entertained.

Having answered the second question dealing with the second and third question would be an academic exercise. Further, the first issue would be of no consequence. As such, I would not consider the other questions.

MADE this 18th day of June 2010





J N’riva

DEPUTY CHAIRPERSON