Source: Landmark ruling on NSSA pensionable age | The Herald September 19, 2019
Fidelis Munyoro Chief Court Reporter
The National Social Security Authority (NSSA) is sweating over an Administrative Court landmark ruling allowing a pensioner to receive his dues before attaining the statutory minimum age of retirement.
The Administration Court ruled that former Chitungwiza Town Council finance director Mr Goodway Mvududu was entitled to receive his pension from the age of 59 as this was the time when he retired from pensionable employment.
According to NSSA statutes, the minimum age of retirement is 60.
Mr Mvududu successfully argued in the lower court that he was entitled to a periodical payment of a retirement pension by virtue of having retired from employment and because in his case contributions of not less than 120 months had been paid.
To buttress his case, Mr Mvududu relied on Section 26 (1)(a) and (b) of the National Social Security Authority (Pension and Other Benefits Scheme) (Amendment) Notice, 1994 (No 1) published in Statutory Instrument 393 0f 1993, which states:
“Section 26 (1) Subject to this section, an employee – (a) who has retired from employment or shows, to the satisfaction of the general manager that he is no longer employed: and (b) in respect of whom contributions for not less than 120 months have been paid; shall be entitled to a periodical payment of a retirement pension”.
In his ruling, Administration Court judge Justice Herbert Mandeya was in total agreement with Mr Mvududu, a self- actor, that the provision he cited to bolster his case was peremptory in its construction by virtue of the word “shall”.
This, the judge said, fortified his view that payment of the retirement pension was due.
Following the Administration Court ground-breaking ruling, NSSA is likely to face a deluge of lawsuits from hordes of pensioners that have been sent on early retirement. This has prompted the multi-billion State pension entity to approach the Supreme Court challenging the lower court’s decision. In its heads of argument filed with the superior court, NSSA is arguing that the decision made in the Administration Court was per incuriam.
A court decision made per incuriam is one which ignores a contradictory statute or binding authority, and is therefore wrongly decided and of no force.
“The fact that the court a quo (lower court) placed reliance on it means that it came to its decision based on incorrect law,” said NSSA. “This made the decision incorrect and it accordingly ought to be set aside.”
Further, NSSA argues that the lower court erred in failing to recognise that the date at which a person is considered to have retired is defined in section 2 of the SI393/1993 as the date at which a person attains pensionable age and ceases to be employed in insurable employment.
In this regard, the State pension entity says the Administration Court decision is patently flawed, hence should be set aside in its entirety.
Both parties have since filed all the necessary paper work, setting in motion processes leading to the hearing of the appeal.
One small problem, all the NSSA money has been stolen.