ABSA Bank Zambia PLC has submitted to the Lusaka High Court that Barclays Bank Zambia PLC and ABSA Bank Zambia are one and the same legal entity, adding that all rights and liabilities of the entity prior to the name change are not affected as a result.
It has, therefore, asked the court to set aside a matter in which Zambia Union of Financial Institutions and Allied Workers (ZUFIAW) general secretary Msiska Chingati has sued it and Barclays Bank Zambia, seeking a declaration that the unilateral and non-consensual transfer of unionised employees of Barclays Bank to the new entity, ABSA Bank, is unlawful, null and void.
ABSA Bank Zambia wants the said action set aside for irregularity, and that in the alternative, Barclays Bank Zambia must be struck out of the proceedings as it does not exist separately from ABSA.
However, Chingati has insisted that Barclays Bank Zambia and ABSA Bank Zambia are two separate legal entities, adding that he intends to adduce evidence at trial to show that the two banks are separate.
He has, therefore, objected to the submissions by ABSA Bank Zambia that his writ of summons and statement of claim should be set aside or alternatively that the originating process be amended by striking out Barclays from the proceedings.
In this matter, Chingati is seeking a declaration that the so-called name change from Barclays Bank Zambia to ABSA Bank Zambia is a sham intended to mask the real nature of the corporate transaction, being a transfer of the business undertaking from Barclays Bank Zambia to the ABSA Group Limited and therefore unlawful, null and void.
He also wants a declaration that the unilateral and non-consensual transfer of the employees of Barclays Bank to ABSA Bank is a terminating event entitling the employees of Barclays Bank Zambia to payment of redundancy benefits under the applicable Collective Agreement being 4.7 months’ pay for each year served.
Chingati is further seeking an order for the payment of all other accrued benefits and rights being among others, pension benefits, long service award, leave days and repatriation allowance under the applicable Collective Agreement.
But according to an affidavit in support of summons to set aside writ of summons and statement of claim for irregularity, ABSA Bank Zambia Plc company secretary Mwape Mondoloka submitted that Chingati commenced an action against purportedly two defendants namely Barclays Bank Zambia and ABSA Bank Zambia but endorsed the writ of summons with the same physical address for both defendants being Elunda Office Park, Stand No.4643, Addis Ababa Roundabout, Lusaka.
She however, stated that Barclays Bank Zambia, the alleged first defendant was the previous name of ABSA Bank Zambia, the alleged second defendant.
Mondoloka added that Barclays Bank Zambia and ABSA Bank Zambia were one and the same entity.
She stated that ABSA Bank Zambia had great difficulty in responding to Chingati’s originating process because in its current form, the originating process suggested that Barclays Bank Zambia and ABSA Zambia were separate legal entities.
“We instructed our advocates to prepare a defence on the substantive issues raised by the plaintiff (Chingati) in his originating process but we are unable to file the said defence into court because there were two defendants in the cation when there should in fact only be one defendant,” Mondoloka stated.
“Given the fact that Barclays Bank Zambia Plc and ABSA are the same entity, I verily believe as advised by our advocates on record that writ of summons and statement of claim herein are irregular and that this action is impossible to defend in its current state for the reasons set out above in accordance with the procedural rules of this Honorable Court.”
Mondoloka therefore asked the court to set aside the said Writ of summons and statement of claim, or alternatively that the plaintiff’s originating process must be amended by striking out Barclays Bank Zambia from the proceedings.
She stated that ABSA Bank Zambia would be greatly prejudiced if it was to defend this action in the manner that it was currently framed because Barclays Bank Zambia currently exists as the new ABSA Bank Zambia and was one and the same entity and that all rights and liabilities of the entity prior to the name change were not affected my reason of the said name change.
However, in his affidavit in opposition to set aside the Writ for irregularity, Chingati argued that the submission by Mondoloka that the two banks were one and the same legal entity was not true at all.
He stated that on the contrary, the union had stated in their statement of claim that ABSA Group Limited, the parent company of the newly created ABSA Bank Zambia Plc, was already existing entity with a presence in over 12 African countries.
Chingati added that in short, the defendants Banks were two separate legal entities.
“The issue of the defendants Banks being one and the same legal entity is an issue that is fit for determination at trial with each party adducing evidence on it. We intend to adduce evidence at trial to show that the two banks are separate,” stated Chingati.