National Social Security Authority v Goodway Mvududu

### Preamble
Judgment No. SC 35/20
1
Civil Appeal No. SC 552/18
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DISTRIBUTABLE:      (31)

NATIONAL     SOCIAL     SECURITY     AUTHORITY

v

GOODWAY     MVUDUDU

SUPREME COURT OF ZIMBABWE

GWAUNZA DCJ, MAKARAU JA & HLATSHWAYO JA

HARARE, OCTOBER 24, 2019 & MARCH 2, 2020

M Mafa for the appellant

Respondent in person

MAKARAU JA: This is an appeal against the entire judgment of the Administrative Court, handed down on 26 March 2018 allowing an appeal by the respondent against the decision of the appellant, with a punitive award of costs. In essence, the judgment upheld the respondent’s contention that he was entitled to a pension from 1 June 2009, the date following his retirement at the age of fifty-nine years and six months, contrary to the appellant’s contention that the respondent became entitled to the pension with effect from 1 December 2009, upon his attainment of the age sixty.

Background facts.

The facts of this matter are not only brief, they are also common cause. I set them out hereunder.

The respondent was employed by Chitungwiza Municipality from 1997 to 31 May 2009 when he retired from employment.  At the time, he was fifty-nine years and six months old.

The appellant is a statutory body established in terms of the National Security Authority Act [Chapter 17.04] with the power inter alia, to administer pension schemes set up in accordance with the Act.

During his working life, the respondent paid contributions to a pension scheme administered by the appellant.

Upon receiving a claim in terms of the Act, the appellant commenced paying the respondent a monthly retirement pension from 1 December 2009, after the respondent had turned sixty. Aggrieved by the non- payment of his pension for the six months’ period between June and December 2009, the respondent lodged a complaint with the appellant, claiming payment of the equivalent amount. He was unsuccessful. In declining the claim, the appellant contended that the relevant statutory instrument governing the respondent’s entitlement to a pension set the retirement age at sixty and therefore, the respondent only became entitled to the pension on 1 December 2009, after attaining the age of sixty. Dissatisfied with the appellant’s decision, the respondent appealed to the Administrative Court.

As indicated above the court a quo upheld the appeal.

The issue

The issue that was before the Administrative Court and remains an issue before this Court is the meaning that should be ascribed to the provisions of the statutory instrument that regulates employees’ entitlements to retirement pension from the scheme that is administered by the appellant.

The law

The relevant law is to be found in s 26 of S.I. 393/1993, the National Social Security Authority (Pension and Other Benefits Scheme) Notice 1993, which in s 3 establishes the Pensions and Other Benefits Scheme, to which the respondent contributed.

It is appropriate that I reproduce s 26 in full. It reads:

“26	(1) Subject to this section, an employee-

who has retired from employment or shows to the satisfaction of the general manager that he is no longer employed; and

in respect of whom contributions for not less than one hundred and twenty months have been paid;

shall be entitled to a periodical payment of a retirement pension.

(2) Subject to this section, an employee may retire on attaining the age of sixty years or at any time thereafter, but shall in any case retire on attaining the age of sixty-five

(3) Notwithstanding subsection (2) but subject to paragraphs (a) and (b) of subsection (1), an employee who- during at least seven of the last ten years immediately prior to the attaining of the age of fifty-five has been employed in ardous employment may, on production of a medical report, be entitled to retire at the age of fifty- five and to receive a periodic payment of retirement 	pension.

(4) A retirement pension shall be payable from the date of retirement until the   death of the beneficiary.”

The decision a quo

In upholding the appeal, the court a quo reasoned that subs (1) of s 26 above is a stand-alone section within whose provisions the respondent fell squarely. It thus agreed with the respondent’s contention that he was entitled to a periodic payment of a retirement pension by virtue of having retired from employment and because in his case, it was clear that contributions for not less than one hundred and twenty months had been paid. In its words:

“The court agrees with the appellant’s submission that he was entitled to periodical payment of a retirement pension by virtue of having retired from employment and because in his case, contributions for not less than one hundred and twenty months had been paid. The appeal accordingly succeeds.”

The above conclusion did not find favour with the appellant who noted this appeal, raising two grounds of appeal. The essence of the two grounds is to challenge the finding by the court a quo that the respondent was entitled to a pension upon retiring at the age of fifty-nine years and six months.

Analysis

As indicated above, the issue that falls for determination in this appeal is the meaning that should be ascribed to the provisions of s 26 of S.I. 393/1993 regarding when an employee becomes entitled to a retirement pension.

Section 26(1) in plain and unambiguous language provides that subject to the section, an employee who has retired or can prove that he or she is no longer employed and for whom contributions have been paid for not less than one hundred and twenty months, is entitled to a monthly pension.

Because it is the point upon which this decision turns, I note again for emphasis that the subsection is subject to the provisions of the entire section, including the provisions of subs (2) which sets out the normal and maximum ages of retirement for the purposes of the pension scheme.

In interpreting s 26 in favour of the respondent, the court a quo had this to say:

“The argument by the respondent does not take into account the fact that the Legislature used the word “or” in subsection 26(1)(a) of the Notice. Instead counsel for the respondent dwelt on subsection (2) and (3) of section 26 of the Notice. The court finds that the oversight by respondent’s counsel of the fact that subsection 26 (1) speaks for itself as it stands is wrong. After all subsection 26 (3) reads:….”

The use of the words “subject to this section” have been held to mean “except as is provided for by this section or to similar effect, without prejudice to what is provided for in this section.”(See Kencor Holdings P/L v Mt Pleasant Ratepayers Association 1998 (2) ZLR 216 (S), and the authorities cited therein).

To the above I venture to add that the words “subject to”, in appropriate circumstances, also mean “as read with”; “taking cognisance of and/or “taking into account..”.

From the authorities, the legal position appears to be that when a provision of an enactment is made “subject to this section” as is s 26 (1) of S.I 393/93, it cannot be regarded as a provision that is self-contained or one that   “speaks for itself” as was held by the court a quo. As I have indicated above, it cannot be read on its own but must be read with the other parts of the section. In other words, it cannot be fully and properly understood on its own construction without making reference to the rest of the section. I further venture to suggest that a subsection that is subject to the section cannot be regarded as complete on its own without the rest of the section. It also stands to reason, in my view, that its interpretation or construction cannot ignore, detract from, or contradict the other provisions of the section.

The use of the phrase “subject to” in an enactment is not superfluous or mere legalese. It is used to alert the reader and/or construer of the enactment that there is more to take into account in addition to the language used in the provision, when interpreting the provision. The words put the reader on guard. It appears that in casu, the court a quo was not so alerted or ignored the guard and consequently fell into grave error. It did not at any stage advert to the phrase “subject to this section” that constitutes the opening part of s 26 (1). It did not pay due regard to the words but proceeded to interpret the subsection as if the phrase was not written into the law at all.

Conclusion

It is therefore my finding and one that I make with respect, that the court a quo erred when it held that s 26 (1) is a stand-alone, self-contained provision. It is not. As is clear from a reproduction of the section above, it is subject to the whole section. In particular, it is subject to the provisions of subs (2) which stipulate the age at which a contributor to the pension scheme may retire. The two must not only be read together but must be read together with the rest of the section.

It is common cause that the respondent was not in ardous employment and correctly so, did not seek to rely on the provisions of s 26 (3) to claim payment of the pension from a date earlier than his sixtieth. His claim was based on the fact that he had retired from employment or put differently, that he had attained pensionable age.  Whilst his retirement was proper and lawful in terms of his conditions of service with his employer, it was premature for the purposes of the pension Notice. At the time he retired, he had not reached the pensionable age set by the Notice.

Taking a cue from the court a quo, the respondent sought to argue before us that subss (1) and (2) of the Notice are distinct and separate, one from the other and further that they are mutually exclusive and cannot co-exist.  It was his argument that subs (1) provided for early retirement or retirement before the stipulated normal age of retirement.

I have already shown above how this argument is not tenable. As indicated above, it was the intention of the legislature that the entire s26 (1) be read together with not only subs (2) but with the rest of the section by using the words “subject to this section,” in subs (1). The other subsections of s 26 read perfectly well with subs (1) as was intended and such reading admits of no ambiguity.

Disposition

On the basis of the above, I find that the appeal has merit and must be allowed. The court a quo fell into error by overlooking the words “subject to this section” in its interpretation of the section.

Regarding costs, the appellant prayed in its notice of appeal that each party be made to bear its own costs not only of this appeal but of the appeal a quo. I see no reason to make any other award of costs save the one that has been prayed for.

In the result I make the following order:

The appeal is allowed with each party bearing its own costs.

The decision of the court a quo is hereby set aside and is substituted with the following:

“The appeal is dismissed with each party bearing its own costs”.

GWAUNZA, DCJ				I agree

HLATSHWAYO, JA			I agree

Scanlen & Holderness, appellant’s legal practitioners