William Chilufya v Hivos Southern Africa (2024/HPIR/0183) [2024] ZMHC 315 (29 August 2024)

. . IN THE HIGH COURT OF ZAMBIA AT THE PRINCIPAL REGISTRY INDUSTRIAL RELATIONS DIVISION HOLDEN AT LUSAKA BETWEEN: 2024/HPIR/0183 WILLIAM CHILUFYA COMPLAINANT AND RESPONDENT Coram: ChfgaH Mfkalile, J this 29th day of August, 2025 For the Complainant: Messrs Legal Aid Board For the Respondent: l\ifr. N. Ng'andu • Messrs Shamwana and Company R. UK,X,U-G Legislation referred to 1. The Industrial and Labour Relations Act, Chapter 269 2. The Interpretation and General Provisions Act, Chapter 2 Cases referred to: 1. Twampane Mining Co-operative Society Limited v. E and M Storti Mining Limited (2011) Z. R Vol 3 2. Hakainde Hichilema & Another v. Edgar Lungu & Others, 2016/CC/0031 3. Cutts v. Head {1980) Ch 290 Rl . ' 4. Lusaka West Development Company Limited B. S. K. Chiti {Receiver) & Another v. Turnkey Properties Limited ( 1990) ZR 1 5. Paul Mumba v. Zambia Revenue Authority, SCZ Appeal No. 123/2013 6. Zambia Consolidated Copper Mines Limited v. Elvis Katyamba (2006) ZR 1 7. Edward Chilufya Mwansa and 194 Others v. Konkola Copper Mines Pie Appeal No 99/2015 8. Antonio Ventriglia & Another v. Finsbury Investments Limited, Appeal No. 2/2019 Other work Garner. Black's Law Dictionary (8th Edition): Thompson West, 2004, USA Introduction 1. This is a ruling on a motion by the respondent via summons to dismiss Notice of Complaint for want of jurisdiction pursuant to rule 33 of the Industrial Relations Court (IRC) Rules, Chapter 269. Background 2. The complainant filed his Notice of Complaint pursuant to section 85 of Cap 269 on 6th March, 2024 follo\ving his dismissal from employment on 31st July, 2023 and conclusion of the appeal process on 6 th September, 2023. In the application, the complainant alleged inter alia that the respondent unfairly, wrongfully and unlawfully dismissed him. 3. The ground upon \vhich the respondent raises the motion is that the Notice of Complaint was filed outside the statutory prescribed period of time. The respondent prays that the complainant's action R2 against it be dismissed in its entirety or in the alternative, exhibits "WC 19 to 26" in the affidavit in support of the complaint be expunged from the record. Affidavit in support of summons 4. The affidavit was deposed by Limpo Nicholette Chinika, Country Manager in the employ of the respondent. She averred that by a letter dated 30th September, 2023 the respondent's Regional Director wTote to the complainant confirming that 6 th September, 2023 was his last date of employment following the conclusion of the appeal process. The notice of complaint dated 61h March, 2024 was filed 6 months after the complainant exhausted the internal appeal process. This was beyond the prescribed period of 90 days from the time the appeal against dismissal was determined. A search conducted on the Court file reveals that the complainant did not obtain leave to file out of time. 5. Further, the affidavit in support of complaint contains "without prejudice" correspondence between the parties. Affidavit in opposition 6. The complainant deposed that after the letter dated 30th September, 2023 marking the conclusion of the appeal process, the Regional Director wrote an email asking him to attend a meeting to agree on a mutual separation agreement. The fact that he was R3 invited to this meeting did stop time from running as a new ·wave of negotiations opened up which in essence waived the respondent's right to rely on the appeal as its final decision because it was willing to renegotiate the appeal findings by .negotiating a separation agreement. 7. He also averred that during the meeting, they agreed on a separation allowance, among other things, and the respondent undertook to reduce the agreement in writing. However, when the separation agreement was sent to him, the respondent had reduced the amount. As such, he refused to sign the agreement and instructed his advocates to issue a demand letter. Follov.ri.ng the demand, the respondent requested for a meeting to attempt an out of court settlement. According to the complainant, there ,vere several letters going back and forth until they settled on the initial amount agreed upon. He waited for the money to reflect in his account but to no avail. Shockingly, on 9th February, 2024, instead of receiving payment as agreed, his advocates received a letter from the respondent's advocates indicating that the respondent was only willing to pay less than agreed. 8. The complainant further averred that he then realised that they had reached a deadlock and that a dispute arose between him and the respondent on 9th February, 2024. Twenty seven days later, he lodged his complaint. R4 9. On the 'without prejudice' documents, the complainant averred that this Court is a court of substantial justice and does not follow strict rules of procedure, therefore, the said documents are admissible. 10. In the reply, Ms. Chinika averred that the respondent called the complainant for a meeting to discuss a separation package following the conclusion of the internal appeal process and not for the purpose of negotiating or agreeing to a mutual separation. After the meeting, the respondent sent the complainant a separation agreement on 26th September, 2023 which he rejected on account of the amount offered and not because of any disagreement over a mutual separation. 11. According to the deponent, the exhibits marked "WC7 to 14" in the affidavit in opposition are without prejudice correspondence and inadmissible. Further, any ex-curia discussions between the parties conducted through their external legal counsel, and outside of the internal appeal process, were held on a without prejudice basis. The ex-curia discussions were not a waiver of any legal rights. Submissions 12. Counsel for the respondent filed skeleton arguments and cited section 85(3) of Cap 269. He contended that this provision is couched in mandatory terms and the IRD will have jurisdiction to hear and entertain a complaint if presented within 90 days of R5 exhausting administrative channels available to a complainant. As guided by section 35 of the Interpretation and General Provisions Act, Cap 2, the notice of complainant ought to have been filed not later than 5th December, 2023. 13. It was submitted that the argument that the dispute arose on 9 th February, 2024 flies in the teeth of section 85(3) of Cap 269. Time does not start running from the date ex curia settlement fails. In aid of this argument, counsel relied on the case of Twampane Mining Co-operative Society Limited v. E and M Storti Mining Limitedlll which held that the position of the law is that ex curia settlement discussions do not and cannot stop the time from runnmg. 14. It was further argued that failure to obtain leave of court to file complaint out of time was fatal as the Court has no jurisdiction to hear the complaint. In emphasising the importance of jurisdiction, reliance was placed on the Constitutional Court decision in the case of Hakainde Hichilema & Another v. Edgar Lungu & Others121 that if a Court proceeds to hear a matter without jurisdiction, the resulting trial or hearing would be a nullity. 15. Counsel also prayed that in the event that the Court is persuaded to fmd that it has jurisdiction to hear the matter, exhibits "WC 19 to 25 in the affidavit in support of notice of complaint be expunged from the record as they were made during the course of without prejudice correspondence between the R6 parties. Reliance was placed on the English case of Cutts v. Headl3l where it was held at page 306 that: ... parties should be encouraged as far as possible to settle their disputes without resort to litigation and should not be discouraged by the knowledge that anything that is said in the course of such negotiations ... may be used to their prejudice in the course of the proceedings. The public policy justification, in truth, essentially rests on the desirability of preventing statements or offers made in the course of negotiations for settlement being brought before the court of trial as admissions on the question of liability. 16. Also relied on was the case of Lusaka West Development Company Limited B. S. K. Chiti (Receiver) & Another v. Turnkey Properties Limitedl4l ,vhere the Supreme Court had this to say: As a general rule, therefore, without prejudice communication or correspondence is inadmissible on grounds of public policy to protect genuine negotiations between the parties with a view to reaching a settlement out of court. In this regard we cite the case of Rush and Tompkins Ltd v Greater London Council and Another (1). However, that is only a general rule and, as Mr. Hamir has correctly pointed out, basing his submissions on paragraph 213 of Halsbury's Laws of England, 4th Edition, Volume 17, there may be situations - such as in the case of a settlement • where the issue for detemiination demands the production for such without prejudice correspondence. However, it is quite clear that the issue here did not really call for the disclosure of the correspondence complained of since it was capable of being resolved without recourse to such correspondence, .. R7 17. Counsel went on to submit that the documents highlighted have nothing to do with the resolution of the complainant's claim for unfair, wrongful and/or unlawful dismissal. As such, they ought not to grace the court's record. Considerations and decision 18. I have carefully considered the affidavit evidence for and against the preliminary issue as well as the skeleton arguments filed by the respondent. The issue to be determined is as couched in the summons, that is, whether or not this Court has jurisdiction to proceed with the trial of the matter. 19. It is common cause that the complainant was dismissed on 31st July, 2023 following a disciplinary hearing and his appeal was determined against him on 6th September, 2023. He only filed his Notice of Complaint on 6 th March, 2024. 20. The guiding provision is section 85(3} of Cap 269 which sets a time limit within which a complaint may be brought. It states: (3) The Court shall not consider a complaint or an application unless the complainant or applicant presents the complaint or application to the Court- (a) Within ninety days of exhausting the administrative channels available R8 (b) where there are no administrative channels available to the complainant or applicant, within ninety days of the occurrence of the event which gave rise to the complaint or application: Provided that- (i) upon the application by the complainant or applicant, the Court may extend the period in which the complaint or application may be presented before it; 21. The above provision is couched in mandatory terms and bars the court from proceeding with a complaint filed outside the prescribed period and where leave to proceed outside the prescribed period has not been obtained. 22. It was the complainant's argument that he was well within ti.me as he was engaged in negotiations with the respondent prior to filing his complaint. According to him, the dispute only arose on 9 th February, 2024 \Vhen it became clear that the respondent was not willing to resolve the issue amicably and that they had reached a deadlock. On its part, the respondent argued that ex-curia discussions do not stop the time from running. 23. It is clear that the complainant is asserting that he was exhausting administrative channels and that he filed within 27 days of exhausting those channels. 24. In my endevour to resolve this issue, I have had recourse to the case of Paul Mumba v. Zambia Revenue Authorityt5J where R9 the Supreme Court pronounced itself on the meaning of administrative channels as follows: In our view, administrative measures envisaged by the above section are the ones applicable in the particular organisation the employee worked. In the case at hand, the appellant should have restricted himself to the administrative procedures available to him within the respondent organisation. 25. The gist of the complainant's argument 1s that the negotiations and correspondence exchanged between his advocates and the respondent's advocates between September, 2023 and February, 2024 stopped the time from running. If one were to accept that the above communication amounts to an administrative channel as envisioned by the law, then indeed the complainant could be said to have filed his complaint Vii.thin time. 26. However, a critical look at the case of Paul Mum.ba (supra) reveals that administrative channels are the avenues available in the particular organisation the employee worked for. 27. The record is devoid of any evidence that the negotiations embarked on by the parties are an avenue available to employees or former employees of the respondent. 28. I have further looked at the decision of the Supreme Court in the case of Zambia Consolidated Copper Mines Limited v. Elvis Katyamba<6l where the Court had this to say: R 10 From our reasoning it can be deduced that even. though administrative channels are not defined by law there are instances where a complainant or applicant finds it necessary to engage and exhaust the process of appeal available to him or her in the organization. There are instances also where a complainant or applicant may engage in further negotiations where she or he is entirely dissatisfied with a package offered to him or her by the employer either by way of redundancy, retirement or mere tennination. It must be noted that if the negotiations for a better package or an appeal to a higher body for redress cannot be commenced within the mandatory thirty days, it is not possible for the court to extend the time that has already expired. 29. Even this case is clear that administrative channels refer to internal procedures provided by the employer. 30. Indeed, the negotiations between the parties herein were an attempt at ex curia settlement which Black's Law Dictionary at page 608 defines as "out of court or away from the court" settlement. 31. The Supreme Court pronounced itself on the effect of an ex curia settlement attempt in the case of Edward Chilufya Mwansa and 194 Others v. Konkola Copper Mines Plc(71. The Court held that: Pursuing an ex curia settlement does not arrest the statutory time from running. In this case, the appellants could well have commenced their action in the Industrial Relations Court while they pursued a settlement on a clear understanding that such actions would be discontinued if and when a settlement was reached. Rll 32. Quite clearly, the apex Court in the above case held firm to its earlier position on ex-curia negotiations espoused in the Twampane Mining case. Ex-curia discussions do not and cannot stop time from running. The Court further stated that to use ex curia discussions as an excuse for failure to comply with the rules is to do so at one's peril. 33. As already stated, the complainant's appeal was determined on 6 1h September, 2023. In the absence of proof that the negotiations embarked on were part of internal administrative channels provided by the respondent, this is the date when the cause of action arose. I agree with the respondent that the complainant ought to have filed his complaint by 5 th December, 2023. 34. The importance of adhering to Section 85(3) was demonstrated in the same Elvis Katyamba case where the Supreme Court stated that: In tenns of the law quoted above, (section 85(3)) it is mandatory for the IRC not to entertain a complaint or application unless such complaint or application is brought before it within thirty days from the date of the event that gave rise to the complaint or application. 35. Of course, the above case was decided before Cap 269 was amended in 2008. The amendment enlarged the time frame within which to file a complaint to 90 days. R 12 36. Clearly, therefore, failure to comply with the procedural requirement under section 85 (3) divests a court of jurisdiction. The complainant ought to have sought leave of Court to file his complaint out of time. 37. Having established that the complaint herein was filed outside the 90-day period and that no leave was granted, it follows that this Court has no jurisdiction to proceed with the matter. 38. In the case of Antonio Ventriglia & Another v. Finsbury Investments Limitedl8J, the Supreme Court cited with approval the Kenyan Court of Appeal's observation in the case of Owners of the Motor Vessel "Lillian S" v. Caltex Oil (Kenya) Limited (1989) KLR 19 that: "Jurisdiction is everything (and that) without it, a court has no power to make one more step ... where the court takes it upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing ... " 39. The net effect of the authorities cited above is that the inability to adhere to section 85(3) is not a mere procedural technicality that can be overlooked. The provision clothes the court with jurisdiction and without it, the court \Vould be wasting its time as well as the litigants' time if it decided to proceed. 40. Having made the foregoing resolution, I find it redundant to address the issue of 'without prejudice' documents. R13 41. In conclusion, I find that the matter herein was ill conceived and is accordingly dismissed. 42. Each party shall bear ovvn costs. 43. Leave to appeal is granted. Delivered at Lusaka this 29th day of August, 2025 ......... ~ .: ..... . HIGH COURT JUDGE R 14