Thank you for your letter of 13 July 2004. As you indicated it was a matter of urgency, I replied by e-mail, for which I have received your acknowledgment.

  As well as a copy of the FCO letter of 21 May 2004 you requested, I also took the liberty of attaching the briefing paper I prepared for the meeting at the FCO on 25 February 2004 and a copy of my comments on their letter. I attach all three to this letter, the FCO letter of 21 May is a photocopy of the original.

  Former public officers of Southern Rhodesia/Zimbabwe are represented in this country by the Overseas Service Pensioners' Association (OSPA) and by the Zimbabwe Service Pensioners Group (ZSPG). The Secretary to OSPA (four days a week Monday to Thursday) is David Le Breton CBE.

  The Secretary to ZSPG (Voluntary- unpaid) is Frank Taylor.

  Thank you for your interest in our plight. I would be prepared to answer any questions you may have or give evidence to the Committee as, having been President of the Rhodesia Public Services Association from 1977 to 1980 during the critical period of handover by HMG to Zimbabwe, I am probably the best informed on the question of public officer pensions.

Mr Barry J Lennox

15 July 2004

  Although Southern Rhodesia (SR) was nominally a self governing colony from 1923, Her Majesty's Government (HMG) continued to regard it as part of Her Majesty's Dominions and that the Government and Parliament of the United Kingdom have responsibility and jurisdiction in respect of it." (The UK Attorney General, Hansard Column 513, 12 November 1965.) HMG exercised this responsibility by the UK Prime Minister instructing public officers to stay at their posts after UDI in 1965.

  From 12 December 1979 to 17 April 1980 Southem Rhodesia was ruled directly by HMG through a Governor, Lord Soames, before handing over the Colony on 18 April 1980 to a newly elected government as the independent state of Zimbabwe.

  Prior to 1 April 1949 public officers paid their compulsory pension contributions into one or other of three pension funds, but these were abolished by the Public Services Amendment Act No 39 of 1948 and the monies in the funds were vested in the Governor and paid into the Consolidated Revenue Fund.

  The SR Government abolished the posts of Trustees of the public service pension funds and, by so doing, automatically assumed the status and position of Trustee. Public officers were placed in the unique position of having to pay their compulsory pension contributions into Government revenue. Thereafter the duty of care for the welfare of public officer pensioners and contributors rested on the SR Government since there were no longer separate pension funds under the care and control of trustees.

  This status of Trustee and the duty of care for the welfare of public officers' pensions passed from the SR Government under the Governor, Sir Humphrey Gibbs, to the illegal regime of Ian Smith and the joint regime of Ian Smith and Bishop Muzorewa, to the direct rule by HMG through the Governor, Lord Soames, from 12 December 1979 to 17 April 1980. HMG was therefore the Trustee and had the duty of care, when handing over the Colony of Southern Rhodesia to the independent Government of Zimbabwe, to ensure the security and future credibility of public officers' pensions.

  The failure to discharge this duty of care by HMG as the Trustee has resulted in the continual erosion of pensions in Sterling terms (Apr 1980 Z$1 = 68p, Feb 03 Z$1 = 1p) and increasingly erratic payment, culminating in the cessation of pension payments outside Zimbabwe after February 2003, allegedly due to the Reserve Bank of Zimbabwe failing to make available foreign currency to the Pensions Office to enable the pensions payments to be made.

  The non payment is in direct contravention of Section 2(1) of Schedule 6 (Section 112) to the Constitution of Zimbabwe, as enacted by HMG which states: "Any person who is entitled to receive a pension and who is not ordinarily resident in Zimbabwe shall not be prevented from having remitted to him outside Zimbabwe any payment of a pension to which he is entitled". It also makes a mockery of HMG's assurance that "the Independence Constitution provides full safeguards for public service pensions and their remittability". (Letter from Lord Trefgarne on FCO headed paper dated 20 December 1979).

  From the above the legal position is quite clear that, as the Trustee of public service pensions from 12 December 1979 to 17 April 1980, HMG, when handing over to the independent Government of Zimbabwe, failed in its duty of care and responsibility as Trustee to ensure the future security of public officer pensions and their remittability outside Zimbabwe. Zimbabwe public officer pensioners therefore call upon HMG, as the legal government of SR and Trustee at the date of handover, to restore the payment and value of their pensions.

Barry J Lennox

  I am writing in response to the Overseas Service Pensioners' Association (OSPA) meeting on 25 February with Andrew Lloyd and myself and the discussion paper that you left with us. I am sorry that it has taken so long to reply. The delay was caused by a need to obtain copies of the relevant Rhodesian legislation, to research the background history and to consult our Legal Adviser.

  Our legal adviser has now examined the material and her conclusion is that "even if HMG was at one time a trustee of the pension funds and owed a duty of care to administer them properly, I believe this duty would have been discharged when HMG negotiated a good provision in the Zimbabwe Constitution on the remittance of pensions to persons not ordinarily resident in Zimbabwe."

  The Public Services Act 1931 (cap no. 29,1931) established the Southern Rhodesia Pension Fund and the Southern Rhodesian Widows' Pension Fund. All amounts paid to the Fund were to be lodged by the Treasury in a bank dealing with government accounts and the Treasury administered the Funds. There is no reference to a trust anywhere in this piece of legislation.

  The Public Services Amendment Act 1948 made provision for the payment of contributions to pension funds to be paid to the Consolidated Revenue Fund. The Southern Rhodesian Pension Fund and Southern Rhodesian Widows' Pension Fund were abolished and the amounts in these funds were vested in the Governor and paid into the Consolidated Revenue Fund (see Section 47 of the 1948 Act). Neither this Act nor the Public Services Amendment Act 1963, appear to contain any reference to a trust of the funds.

  But even if a trust could have been implied and HMG was at one time a trustee of the pension funds and owed a duty of care to administer them properly, this duty was discharged when HMG negotiated a provision in the Zimbabwe Constitution on the remittance of pensions to persons not ordinarily resident in Zimbabwe.

Andrew Hopkinson

Africa Department (Southern)

Foreign and Commonwealth Office

21 May 2004

  The FCO letter gives the impression it was hurriedly written in order to be received in time for OSPAs AGM and in doing so does not appear to answer all the points raised in the paper for the meeting on 25 February 2004.

SPECIFICALLY:

  (a)  The reply addresses only one part of the whole-that of remittabifity of pensions being a provision negotiated by UMG in the Constitution. While the FCO feels that is sufficient to discharge HMG's duty of care, the fact remains that remittability isn't working. HMG, having by their own admission, negotiated the provision, must therefore shoulder the responsibility for correcting the situation.

  (b)  When the S Rhodesia Government abolished the funds it also removed the trustees. It thereby took on a moral responsibility to assume the position of the trustees it had removed.

  Even if a trust were not implied, HMG, having always maintained that Southern Rhodesia is part of Her Majesty's Dominions and that the Government and Parliament of the United Kingdom have responsibility and jurisdiction in respect of it", and as the legal government at the time of handover to Zimbabwe and the holder of pension contributions, owed a duty of care far wider than just remittability. HMG did not make an exception of the public service as not being part of this responsibility and jurisdiction, in fact quite the opposite, it instructed public officers to stay at their posts after UDI and directed the public service during the period of direct rule from London 12 December 1979 to 17 April 1980.

  (c)  Lord Trefgarne in his letter of 20 December 1979 refers to Tuft safeguards and remittability'. In the context of this letter `remittability' was therefore only part of the issue of safeguarding pensions.

  (d)  It was well known to HMG at the time that, as well as remittability, public officers were seeking continuation of payment of pensions, protection against inflation and protection against currency fluctuation. Public officers were given to understand, and accepted that these important subjects were covered by "full safeguards" in Lord Trefgarne's letter.

  (e)  I submit OSPA should reply to the effect that, Council having considered it, the letter is not a satisfactory reply, dealing as it does with only one part of the whole and avoiding the UK's own stated legal position. Attention should be drawn to the FCO's own admission that HMG to discharge its duty of care negotiated the provision" guaranteeing remittability and should now take responsibility for the pensions of public officers as that "negotiated provision" is not working.

BJL/30-06-04

Revised 1st para 30-06-04

Revised para (b) and para (e) 1-07-04

Revised para (e) last sentence added 6-07-04

Revised para (b) additional first sentence added 7-07-04