IN THE HIGH
COURT OF MALAWI

LILONGWE
DISTRICT REGISTRY

CIVIL
CASE NO.587 OF 2006

BETWEEN:

WILLIAM
CHIMBALANGA…………………………..1^ST
APPLICANT

CHARLES
E. BANDA……………………………….2^ND
APPLICANT

AND

THE
ATTORNEY GENERAL………………………….RESPONDENT

CORAM: CHOMBO,
J

Khonyongwa,
Counsel for the Applicant

Attorney
General/Unrepresented/Absent

R U L I NG

This is an application by way of originating
summons by which the applicants seek the court’s order that they
were arbitrarily
removed from public office without being heard
contrary to the Public Service Act. They also seek damages for the
said removal.
The application was supported by affidavits and
skeletal arguments that counsel adopted in their entirety.

The
Respondent was duly served with notice of hearing but did not send
any representative to court.

The
primary function before court, I believe is to establish one or two
things:

1. 
   were the
   applicants public servants.

   
   

2. 
   was their
   employment determined by the and Malawi Public Service Act.

   
   

The
brief facts of the application are that the applicants were employed
as Intelligence Officers under the National Intelligence
Bureau.
They were in service until 6^th
January 2005 when their offices were closed and they were sent on
one-month leave pending restructuring of their office. The said

leave was communicated to them through the media. Their leave was
cut short on 18^th
April 2005 with letters of termination of service. The letters were
delivered to their homes. No reasons for their termination
was given
nor were they invited to any disciplinary hearing before termination
as is required in the Public Service Act. They
now claim that the
said termination was unconstitutional and wrongful in law.

1. 
   Status of
   the Applicants

   
   

For all intents and
purposes the applicants were employed as public servants in the sense
that they were employed in the public
service.

2. 
   Guiding
   Conditions of Service

   
   

There is attached
to the affidavits of the applicants a document exhibited and marked
as “WC4” – entitled “The National
Intelligence Bureau –
Staff Terms and Conditions of Service”. On p.4 of the said WC4 is
paragraph 3, which outlines the position
of the applicants. It will
be necessary to quote the same in full:

“Considering
the nature of duties and the conditions under which the members of
staff of the Bureau operate, it has been considered
necessary that
the
Bureau ceases to operate using Civil Service Conditions of Service
unless otherwise stated.
While remaining answerable to the Secretary to the President and
Cabinet on all administrative matters, the Bureau should operate
as an independent institution with its own conditions of service.”
[Underlining
supplied for emphasis]

On
p. 5 under 4.0 Application – WC4 expounds the extent of the
application of the Staff Terms and Conditions of Service as follows:

“These Terms and Conditions of
Service shall apply to staff of the National Intelligence Bureau.”

It is evident that, unless specifically
mentioned, the applicants’ terms of employment had long ceased to
be guided by the Public
Service Act. I have gone through the
exhibited documents and find that there indeed was a particular
reference to the applicants’
conditions being subject to the Public
Service Act. This is with reference to WC3 and CB5 the specific
words being as follows:

“In accordance
with the salary structure of the Malawi Civil Service
your initial salary……………” [Underlining supplied]

And in WC6 the specific words are: (on p. 2)

“This is why the
same Directorate positions are pegged at P2/S2 in the civil
service and are equivalent to Directors and Commissioners
of Police in the Malawi Police Service and Directors in the Malawi
Armed Forces”.
[Underlining supplied]

These are the only
instances where direct reference was made to the Malawi Civil
Service, other than that the applicants’ employment
was determined
by WC4.

Under 37.0 –
Termination of Appointment (p. 42) of the said WC4 the applicants’
employment could be terminated as follows:

“The Bureau may
terminated the employment of a member of staff or the member of staff
may terminate his/her employment with the Bureau
provided that
written notice of such intentions is served to the either party in
the following manner:

1. during the
   probationary period; the length of notice required shall be one
   month or one month’s pay in lieu of notice;

   
   

2. where a
   member of staff is confirmed in his appointment he/she shall be
   required to give 3 months’ notice. The Bureau may also
   terminate the services of a confirmed member of staff by giving
   three months’ notice. Either party may
   pay the other a sum
   equivalent to three months’ pay in lieu of notice.”
   [Underlining supplied for emphasis]

   
   

It will be observed
that nowhere in these conditions is the Bureau obligated to give
reasons for Termination of Service. The Conditions
of Service only
specify how terminations are to be effected with or without notice.
According to WC 7 and CB 7 the applicants’
employment was
terminated and all dues paid to them. The applicants’ services
were not terminated as a result of misconduct,
which is determined by
paragraph 32.0 – Acts of Misconduct of WC4.

This case must
therefore be distinguished from that of Dr. Chawani vs Attorney
General M.S.C.A. Civil Appeal 18 of 2000, Principal Registry
(unreported) whose terms of employment were wholly regulated by the
Civil
Service Act. I have no doubt that the drafters of WC 4 had
intended that there should be no reasons given for termination of
employment
as long as the procedure laid down was followed. I can
only presume that this was necessitated by the nature of the duties
of the
officers employed under the Bureau. I can also conclude,
therefore, that if it was the intention of the drafters that civil
service
conditions on termination of appointment were to apply for
officers of the Bureau the same would have been specifically stated.

I must therefore
disallow the application accordingly.

MADE in
Chambers this 25^th September 2006.

E.J. Chombo

JUDGE