REPORTABLE (99)

Judgment No. SC. 128/04

Civil Appeal No. 328/03

CHARLES THOMAS v

(1) THE COMMISSIONER OF WAR VICTIMS PENSIONS N.O.

(2) THE MINISTER OF PUBLIC SERVICE, LABOUR AND SOCIAL WELFARE N.O.

SUPREME COURT OF ZIMBABWE

CHIDYAUSIKU CJ, ZIYAMBI JA & MALABA JA

HARARE, SEPTEMBER 23, 2004 & JANUARY 27, 2005

J Chikuku, for the appellant

C Muchenga, for the respondents

MALABA JA: This is an appeal from a judgment of the High Court delivered on 5 October 2003, dismissing with costs an application for review of the decision of the respondents refusing a claim by the appellant under the War Victims Compensation Act [Chapter 11:16] (“the Act”) to be paid a “disablement pension” awarded on 5 October 1989 from 1 July 1980.

The Act came into operation on 14 November 1980. Its object was to make provision for the payment of compensation to persons who suffered disablement from injuries sustained during the “war” of liberation. The “war”, as defined in s 2, was the “armed conflict which occurred in Zimbabwe and neighbouring countries between the 1^st January 1962 and the 29^th February 1980, in connection with the bringing about of, or resistance to, political and social change in Zimbabwe”. Disablement under the Act was “for employment or permanent injury or disfigurement”.

Compensatable disablement had to have been caused by an injury sustained before 1 March 1980. Compensation was payable after the first respondent (“the Commissioner”) had satisfied himself that the claimant, who was required to make the application for compensation in terms of s 5 of the Act, sustained the injury during the “war” and before 1 March 1980.

It is common cause that in 1979 the appellant, who was aged ten years, sustained an injury which resulted in a 50% permanent degree of disability in respect of a below the knee amputation to the right leg. Upon an application for compensation, the Commissioner was satisfied that the appellant had sustained the injury during the war and before 1 March 1980. The appellant was awarded a “disfigurement compensation” in addition to educational, clothing and medical allowances, which were paid to him throughout the period of his education until he qualified as a legal practitioner.

The disablement compensation and allowances were paid in terms of s 25 of the Act containing special provisions relating to the disablement of “minors”, defined as persons who had not attained the age of nineteen years. Subsection (2) of s 25 provides that:

“(2) Notwithstanding anything contained in this Act –

(a) there shall be paid in respect of the disablement of a minor such compensation as the Commissioner may consider appropriate after taking into account –

(i) such of the provisions of this Act as the Commission may consider relevant; and

(ii) the circumstances of the minor and of the parents, if any, of the minor;

(b) no pension shall be payable to any person in respect of the death of a minor.”

“Compensation” is defined in s 2 of the Act as “any compensation, pension, allowance or other benefit including medical aid, which is payable or provided for under this Act”.

The compensation paid to the appellant for his disablement was not a pension. The Commissioner had considered the fact that, having been a minor and unemployed at the time he sustained the injury which caused his disablement, the appellant had no earning capacity to be paid a pension. The compensation was not for disablement for employment.

On turning nineteen on 5 October 1989 the appellant applied to the Commissioner for a “disablement pension”, defined in s 2 of the Act as “a pension payable in terms of s 8”. Subsection (1) of s 8 provides that a disabled person, whose degree of disability is one hundred percent, shall be entitled to a disablement pension calculated according to the prescribed formula. Subsection (2) of s 8 also provides that a disabled person, whose degree of disability is not one hundred percent, shall be entitled to a disablement pension calculated in accordance with a prescribed formula. The entitlement is to a disablement pension as opposed to any of the other forms of compensation. The claimant would have to show to the satisfaction of the Commissioner that the circumstances of his disablement met all the requirements for calculation of the pension prescribed in s 8 of the Act.

Subsection (1) of s 8 requires that a disablement pension payable to a person, whose degree of disability is one hundred percent, should be an amount equal to the aggregate of forty-five percent of his earnings immediately prior to the date of his injury if he continued to carry out his normal occupation with no reduction in earning capacity. It should be an amount equal to the aggregate of ninety percent of his earning immediately prior to the date of his injury if as a result of the disablement he was discharged or compelled to follow a lower standard of occupation. The same formula has to be applied where the disabled person has not changed his normal occupation, but has had a reduced earning capacity as a result of his disablement.

Subsection (2) of s 8 provides that a disablement pension to be payable to a disabled person, whose degree of disability is less than one hundred percent, shall bear the same proportion to the pension which would have been payable in terms of subs (1) of s 8 had his degree of disablement been one hundred percent as his actual degree of disfigurement bears to one hundred percent.

It is clear from the provisions of s 8 of the Act, in terms of which a disablement pension is payable, that the fundamental requirement for entitlement is that the disabled person should have been engaged in an occupation or employment immediately prior to the date of his injury. The measure of the disablement pension is not only the degree of the disability then suffered but its effect on his normal occupation, that is to say, whether he carries on without a reduction of earning capacity or is compelled as a result of the disablement to change his normal occupation or to follow a lower standard of occupation. The degree of disablement as assessed is compensated in money by a sum equal to the aggregate of amounts, being percentages of what the disabled person was earning immediately prior to the date of his injury.

Although the Commissioner awarded the appellant a disablement pension on 5 October 1989, I am of the view that the decision was not in accordance with the provisions of s 8 of the Act. As the appellant was an unemployed minor at the time he sustained the injury which caused the disablement in respect to which compensation was claimed, he could not show that he was engaged in an occupation or employment immediately prior to the date of his injury. It was not enough for purposes of entitlement to a disablement pension payable in terms of s 8 of the Act that he had suffered a disablement during the “war” and before 1 March 1980, because that would have entitled him to the other forms of compensation such as “disfigurement compensation” and allowances. It is clear to me that a disablement pension payable in terms of s 8 of the Act is based upon what the claimant was earning immediately prior to the date of his injury.

Having secured what, in my view, was a wrong award of a “disablement pension”, the appellant sought to push his luck too far. He demanded that the disablement pension be paid to him with effect from 1 July 1980, citing the provisions of subs (1) of s 9 of the Act to buttress his claim. When the Commissioner refused to accede to his demand, the appellant appealed to the second respondent (“the Minister”) in terms of s 29 of the Act. The Minister dismissed the appeal. The appellant took the dismissal of the appeal to the High Court for review, on the ground that it was certainly wrong. The Minister had held that a disablement pension was not payable to the appellant with effect from 1 July 1980 because he had no earnings immediately prior to the date of his injury. The High Court dismissed the application. It held that the decision of the respondents was correct because the appellant was not entitled to a disablement pension, let alone one payable with effect from 1 July 1980.

Mr Chikuku, for the appellant, conceded on appeal that no right could have accrued to the appellant to payment of a disablement pension from 1 July 1980 in terms of subs (1) of s 9 of the Act because at that time the appellant could not have been awarded a disablement pension as he had not been engaged in any occupation immediately prior to the date of his injury. Leaving aside the correctness of the decision to award the appellant a “disablement pension” on 5 October 1989, the concession was properly made.

Subsection (1) of s 9 of the Act does not detract from the force of the requirement that a claimant of a disablement pension must show to the satisfaction of the Commissioner that he was engaged in an occupation or employment immediately prior to the date of his injury sustained during the war and before 1 March 1980. The purpose of s 9 of the Act was to fix the dates from which the disablement pension, calculated in accordance with the formula prescribed in s 8, was payable to disabled persons entitled to that particular form of compensation.

Section 9 provides as follows:

“9. Date of accrual of disablement pension

(1) Subject to subsection (2), where the degree of disablement of a disabled person has, in the opinion of the Commissioner, reached a final and stationary condition, the disablement pension shall be payable with effect from the 1^st July 1980:

Provided that where the disabled person has been discharged from his employment or is compelled as a result of his disablement to change his normal occupation or to follow a lower standard of occupation before the 1^st January 1982, his disablement pension shall be payable in accordance with the degree of disablement as assessed on or after the date of that discharge or compulsion.

(2) Where the degree of disablement of a disabled person has not, in the opinion of the Commissioner, reached a final and stationary condition before the 1^st January 1982 the disablement pension –

(a) shall be payable in accordance with the degree of disablement as assessed on or after the 1^st January 1982, with effect from the 1^st July 1980, and

(b) shall be subject to variation or withdrawal according to the degree of disablement as assessed from time to time with effect from the date referred to in subsection (4) of section eight.”

What is of critical importance is that the right to have a disablement pension paid with effect from 1 July 1980 accrues to a disabled person who before 1 January 1982 would have been suffering from a disablement whilst in employment and its degree had reached a final and stationary condition. The appellant had to show at the time the disablement pension was awarded on 5 October 1989 that on 1 January 1982 the degree of his disablement had reached a final and stationary condition and that he had not been discharged from employment or compelled as a result of his disablement to change his normal occupation or to follow a lower standard of occupation.

The appellant could not satisfy these requirements. Although the degree of his disablement may have reached a final and stationary condition before 1 January 1982 he was not in employment at the time. Even where the degree of disability had not reached a final and stationary condition on 1 January 1982, necessitating its assessment from time to time after that date, the right to payment of the disablement pension with effect from 1 July 1980 would have accrued to a disabled person only if he satisfied the Commissioner that he had been engaged in an occupation immediately prior to the date of his injury. The right could not accrue to the appellant by virtue of turning nineteen, because he still suffered the legal disadvantage that his disablement was not caused by an injury sustained when he was engaged in an occupation immediately prior to the date of its occurrence.

The appeal has no merit. It is dismissed with costs.

CHIDYAUSIKU CJ: I agree.

ZIYAMBI JA: I agree.

Charles Thomas & Partners, appellant's legal practitioners

Civil Division of the Attorney-General’s Office, respondents' legal practitioners