IN
THE HIGH COURT OF MALAWI

LILONGWE
DISTRICT REGISTRY

CIVIL
CAUSE NUMBER 407 OF 2005

BETWEEN:

THE
STATE PLAINTIFF

AND

JUDICIAL
SERVICE COMMISSION RESPONDENT

EX-PARTE:
MRS E L MSUSA INTERESTED PARTY

CORAM: THE
HON. MR. JUSTICE L P CHIKOPA

M
Chilenga of Counsel for the Interested Party

Mwangulube
Senior State Counsel for the Defendant

Gonaulinji
(Mr.) Court Clerk

RULING

Chikopa,
J.

NOTE

This,
strictly speaking, is a side show. In the main show the Interested
Party is seeking judicial review of the Respondent’s decision
to
retire her before the mandatory retirement age for magistrates in
Malawi of 70 years. The matter was set down for hearing of the
substantive issues on March 31^st
2006. It was not. Instead we noted that there was an application from
the Respondent seeking to vacate leave for judicial review.
As
matters turned out we could not hear even that application. Counsel
for the Interested Party was out of town. We adjourned the
application to April 5^th
2006. On that day there was yet another application from the
Respondent to vacate leave on a ground other than the one advanced in
the application adjourned on March 31^st
2006. We heard both applications and dismissed them. We now give our
reasons therefor.

BACKGROUND

The
subject matter of this ruling is two applications brought by the
Respondent herein. The first one dated March 15^TH
2006 was to set aside leave to apply for judicial review on the
ground that the same was sought outside the period permitted under
Order 53 r4 (1) of the Rules of the Supreme Court (hereinafter called
RSC).The second application was to vacate leave for judicial
review
granted herein on the ground of ‘forum inconvenience’. The
applications were supported by separate affidavits sworn by
Golden
Mwangulube Senior State Counsel who appeared for the Respondent
herein.

Both
applications were opposed by the Interested Party. The first by an
affidavit in opposition. The second it was not possible to
so do
because it was served on the Interested Party on the day before the
date of hearing. We should be quick to thank Counsel for
the
Interested Party for not making a big issue of such late service but
instead electing that we proceed with more important issues
to wit a
hearing of the two applications.

THE
PARTIES’ ARGUMENTS

As
we have said above there were two applications complete with grounds
therefor. We shall consider the parties’ arguments separately.

The
Respondent

The
first application

The
application was to the effect that leave for judicial review granted
herein be set aside the same having been applied for outside
the
period allowed for such applications under Order 53 r4(1) of the RSC.
Both in his affidavit and in his argument before this court
Mr.
Mwangulube reiterated that an application for judicial review has to
be made promptly in any event not later that three months
from the
date on which the grounds for the application first arose. That in
the instant case the Interested Party was retired via
a letter dated
October 22^nd
2004 and that the application for leave was only made on 21^st
April 2005 which clearly fell outside the three months period
hereinbefore referred to. The proper approach in the Respondent’s
view was for the Interested Party to first seek, by way of notice,
for an extension of the time within which to file the application
for
leave. It would have then been up to the court, after testing the
reasonableness or otherwise of such reasons and also hearing
the
Respondent, to grant the extension of time within which to apply for
leave and then if need be to grant the leave itself. Not
having so
proceeded the Interested Party fell into error and the leave granted
herein should be vacated. Various cases were cited
in support of such
argument. See The
State v The Attorney General ex parte General Joseph Gabriel
Chimbayo
Miscellaneous Cause Number 32 of 2005 (Lilongwe District
Registry)hereinafter called the General’s case, Regal
Bourne Ltd v East Lindsay District Council
[1994] 6 Admin Law Report 102, The
State v Attorney General, Mapeto Wholesalers and Faizal Latif ex
parte The Registered Trustees of Gender Support Programme Civil
Cause 256 of 2005 (Principal Registry) hereinafter called the Treadle
Pumps case, The
State v Malawi Development Corporation ex parte Nathan Mpinganjira
Miscellaneous Cause Number 63 of 2003 (Principal Registry)
hereinafter called the MDC case and The
State v The Attorney General ex parte Charles Eliazel Banda and
William Chimbalanga
Miscellaneous Civil Cause Number 65 of 2005 hereinafter called the
NIB case.

The
second application

It
was to vacate leave for judicial review on the grounds of forum
inconvenience. The fancy words aside it was to the effect that
the
Interested Party had commenced this matter in the wrong forum. That
the same could for instance have been commenced in the Industrial
Relations Court (hereinafter called IRC) the Interested Party’s
claim being an employment issue.

In
the supporting affidavit and the arguments in support of the
application Counsel for the Respondent insisted that the rights if
any at stake herein were private rights. Relating to the termination
of the Interested Party’s employment as a magistrate. That
such
matters should be dealt with by the IRC seeing as it was purely a
matter of employment law. It was prayed therefore that the
leave
previously granted herein be vacated and the Interested Party allowed
to seek alternative remedies. The MDC and Treadle Pumps
cases
referred to above were also cited in support.

The
Interested Party

Like
we have said before the Interested Party did file an affidavit in
opposition to the first application. She was however unable
to do so
in respect of the second application the same having been served on
her late. It was her argument however that the purpose
of Order 53 r
4 is not to keep out matters from the courts on technicalities merely
because they have not complied with the time
limits. Rather it is to
keep out frivolous or hopeless applications. So that if the court
determines as it did in this case that
there is a case for judicial
review the same will not be kept out merely because time limitations
were not complied with. She also
pointed out that the leave herein
was granted at an inter
parties
hearing. The Respondent was duly served but decided not to attend and
contest the grant or otherwise of the leave. It is now late
in the
day to move backwards. In any event it is not as if the Respondent is
claiming that whatever delay occurred herein has caused
it
inconvenience or hardship. The cases of The
State v Blantyre City Council exparte Joel Chilenga Miscellaneous
Civil Cause No 13 of 1998 (Principal Registry) and R
v Ashford
[1955] 2 All E R 327 were cited.

Regarding
forum inconvenience the Interested Party said this matter is not
about private rights or the legality or otherwise of her
retirement.
It is about the mandate of the Judicial Service Commission which is a
creature of statute tasked with the appointment
and removal of
magistrates and making recommendations for the appointment of judges.
She made reference to the celebrated case
of Ridge
v Baldwin
[19636] 2 All E R 66 itself an employment case that had so much to do
with the rise and rise of judicial review. She prayed therefore
that
the two applications be dismissed and the matter allowed to proceed.

THE
ISSUES

On
the facts before us it does not seem in doubt that the date on which
process to seek leave was filed with the court was out of
the three
months referred to in Order 53 r4 RSC. Further it seems to us equally
clear that having been late the Interested Party
did not make a
separate application for extension of the time within which to seek
leave of the court for judicial review. She proceeded
as if she was
within the three months mentioned above. One of the questions that
need to be asked and answered in our view is whether
the above lapses
in procedure should automatically result in the vacation of the leave
herein. Put slightly differently, and perhaps
a touch widely, whether
as a general rule such lapses as pointed above must automatically
result in the vacation of a grant of leave
for judicial review.

The
other question that must be answered is whether the matter before us
is one fit for judicial review. Whether it is in the appropriate
forum. Or whether, as the Respondent argues it is fit for the
Industrial Relations Court.

We
start with the latter question first.

Retirement
of the interested party: is it amenable to judicial review?

If
we may the respondent argues that this is a labor/employment matter.
The interested party is seeking a remedy for having been,
in her
view, wrongfully retired from her position as a magistrate by the
Respondent. That essentially the Interested Party is here
to enforce
private rights but has conveniently dressed them up as public rights
with a view to qualifying for judicial review. The
MDC case was cited
as authority.

We
have had occasion to peruse this case in which the case of The
State vs The Southern Region Water Board ex parte Richard Willard
Jones Chikoja
Miscellaneous Civil Cause 47 of 2003(Principal Registry) [hereinafter
called Chikoja’s case] featured highly. The court in that
case
proceeding on the basis of Chikoja’s case reiterated the widely,
and we should add, the correct view that judicial review
is about
reviewing the decision making process of public bodies or
authorities. That judicial review is only to be used in proceedings
where a person wants to establish that a decision of a person or body
exercising public power(s) infringes rights which are entitled
to
protection under public law. The court was generally of the view that
judicial review will not be appropriate in all employment
cases. The
reason being that the courts would soon replace management of
companies or the boards of companies. The fact that the
employer was
a public body in its view did not make whatever decision it made in
respect of an employee’s employment public and
therefore amenable
to judicial review. This is the view that the respondent herein wants
us to take in respect of the interested
party’s claim or
application for judicial review.

Firstly
we do not, we should state at the outset, subscribe to the view that
all employment matters cannot properly be the subject
of judicial
review. We would think that position unduly restrictive/narrow.
Actually our view is that the courts should be free to
make a
decision as they see fit in the circumstances of a particular case.
So that if a case can and does qualify for judicial review
it should
not be thrown away merely because of some generalization to the
effect that all employment cases are not amenable to judicial
review.
That would, we think, cause more harm than good as many a deserving
case would be denied judicial review when they would
otherwise
qualify. Thus the position in so far as we are concerned is that
there should be left that little bit of space into which
we can fit,
as and when merited, a case dealing with employment/labor matters.

But
more than that and speaking in terms of this case it is clear to us
that this matter goes beyond the employment/retirement of
the
Interested Party as a magistrate. It goes to the tenure of judicial
officers in the magisterial cadre. In what circumstances
can they be
removed from office? What procedures must be followed? What grounds
suffice justify the removal by force retirement or
otherwise of
serving magistrate? What disciplinary steps are available? These, in
our thinking, are questions of public interest.
The public is
interested, and properly so, in knowing the tenure of their
magistrates as it has the capacity to impact positively
or otherwise
on their independence specifically and generally on their performance
as magistrates. The way to look at this case therefore
is to
emphasize the public aspects of the claim and regard the Interested
Party only as a beneficiary of whatever opinion the courts
might
render on the tenure, disciplining etc of magistrates in Malawi. It
would be inadvisable in our view to disqualify such a case
from
judicial review just because the issues have been brought through the
medium of an employment case. Like we have said above
we are averse
to taking an unduly restrictive position on judicial review.

We
also think that there is another aspect to this matter that would
benefit from judicial review. That of, inter
alia,
political rights and freedoms. It is trite knowledge that our
Constitution in section 32 provides that every person shall have the
right to freedom of association which includes the right to form
associations and also the right not to be compelled to join an
association
(which must also include in our view the right not to be
compelled to leave an association). Section 40 of the same
Constitution
gives every person the right to inter
alia
form, join and to participate in the activities of a political party;
to campaign for a political party or political cause; to participate
in peaceful political activity intended to influence the composition
and politics of the Government and to freely make political
choices.
From the facts before us it is clear that the Respondent’s decision
to retire the Interested Party had a lot, if not everything,
to do
with her purported exercise of these rights and freedoms. To what
extent are magistrates allowed or limited in their exercise
of these
rights and freedoms by virtue of them being magistrates? It would be
a pity if we were to throw away this opportunity to
inform
magistrates’ and the Respondent’s future conduct just because the
court will in the course of so doing decide in the propriety
or
otherwise of the Interested Party’s retirement which is essentially
an employment/labor matter. And it should not be forgotten
that we
are here talking about a constitutional body exercising
constitutional powers that affect people’s Chapter IV rights. That
if anything should tilt the balance in favor of making this case one
of those few employment cases where judicial review should be
permitted.

We
are not unaware of the concerns raised in both the MDC and Chikoja
cases: that if we allowed employment/labor cases into the arena
of
judicial review we would, so to speak, open flood gates. Any crafty
litigant would then style their papers in such a way as to
make them
look like public law issues when in effect they are private law
matters. That might be true. But we doubt whether such
an allegation
can successfully be made in respect of this our case. Our view and
conclusion is that this matter is amenable for judicial
review the
fact that it touches on employment/labor issues notwithstanding. In
any event I doubt whether we are in saying the above
advocating for a
wholesale admission of employment/labor cases for judicial review.
Rather we are advocating against a wholesale
shut out as that might
leave even those few deserving cases. We would rather the courts
still have the discretion which cases went
for judicial review and
which ones did not.

Is
the High Court the proper forum?

It
was argued on behalf of the Respondent that this matter could as well
go to the Industrial Relations Court which has in their view
exclusive original jurisdiction in labor matters. It was further
stated that allowing the Interested Party audience in this court
would deny her a tier of appeal she should at law have which in
effect is tantamount to denial of access to justice. That allowing
cases like the present one into the High Court when we have the IRC
would render the IRC redundant while at the same time needlessly
clogging the High Court. The MDC case was cited.

The
Respondent must have gotten the wrong end of both the Industrial
Relations Act (hereinafter called the Act) and case law. The
Act does
not grant the IRC exclusive original jurisdiction. Technically
therefore the High Court can hear a labor matter if it so
wished.
This was made clear in the MDC case citing the case of Kaunde
v Malawi Telecommunications Limited
Civil Cause No 687 of 2001 (Principal Registry). What we understand
the court to have said is that the High Court should be slow
to take
up a labor or labor related matter if the same can be handled by the
IRC. We would have had no problems in agreeing with
the Respondent,
if this matter was simply about the retirement of the Interested
Party, that it should go to the IRC. But in so
far as it touches on
the tenure, independence of judicial officers i.e. magistrates and
their exercise of various constitutional
rights and freedoms our view
is that the IRC is not best placed to adjudicate on that. The High
Court is. Our view therefore remains
that this matter is not before
the wrong forum in the circumstances.

Should
leave for judicial review is set aside for lapses?

The
Respondent says yes. It went so far as to say that it is a matter of
general principle that where there was delay and no separate
application is made to extend the period within which to apply for
leave any leave granted should automatically be vacated. Various
authorities, to whom we have made reference above, were cited.

The
Interested Party is of a different view. We think a consideration of
the i.e. cited cases and the RSC would be of great help.

Order
53 r 4 of the RSC could not be clearer. It says that the application
for leave should be made ‘promptly
and in any event within three months from the date when the grounds
for the application arose unless the court considers
that there is
good reason for extending the period within which the application
shall be made’.
[Our
emphasis].

The
cases cited above were of the unanimous view that where an applicant
for leave is late the proper procedure is to first make an
application for extension of the time within which to seek leave. If
and when the extension is granted one then goes on to apply
for
leave. Does that however mean that leave granted in any case in which
the above procedure was not followed should automatically
be vacated?

We
also thought it advisable to read the above together with Order 53 r
14/4. We noted of course that none of the cases cited by the
respondent commented on this. The learned editors were of the view
that whereas it is open for a Respondent where leave has been
granted
ex
parte
to apply for such grant to be set aside such applications should be
discouraged and should only be made where the respondent can
show
that the substantive application will clearly fail. The question
being where does this put leave granted inter
parties.
Considering the foregoing with the opinion of the Court of Appeal in
England in the case of R
v Secretary of State for the Home Department ex parte Rukshanda Begun
[1990] C O D 107 we think it rather obvious that the emphasis in
deciding whether or not to vacate leave for whatever reason should
be
whether or not it is clear in the Judge’s mind that there is a
point for further investigation. If the answer be yes then the
matter
should proceed for the substantive hearing with relatively few, if
any, applications from the respondent to set aside the
grant of
leave.

Let
us now look at the decided cases cited by the respondent and the RSC.

The
NIB case

The
applicants brought an application for leave five (5) months after the
cause of action arose. The Respondent objected to such grant.
Two
reasons were advanced. Firstly that the application was out of time
and secondly that the matter was in the wrong forum. That
being an
employment matter it was amenable to the Industrial Relations Court
than judicial review. In the course of considering the
late
application the court made the following remarks which were seized
upon by the respondent herein:

‘clearly
Order 53 r4 envisages that where the application for leave to apply
for judicial review is made late, it shall be preceded
by an
application for extension of time where notice shall be given to the
respondent; no doubt such notice would contain reasons
for the delay
to enable the respondent to respond to the application and to
disclose to court what inconvenience might be caused
by the belated
application where such might be the case’.

Much
as the correctness of the above cannot be faulted we would think that
the question before that court and this one are different.
The issue
in the NIB Case was for a grant of leave. The complications were that
it, the application, was firstly out of time and
secondly that there
was no separate application to extend time. In dismissing the
application the court carefully spoke about the
issues before it. In
paragraph three of page 5 it said, clearly in our view, that the
matter before it was not one for extension
of time but for leave. It
therefore only spoke about extension of time in passing. As orbiter
so to speak. Its reason for refusing
to grant leave therefore was
that the application, being made five months after the event was out
of time. It never volunteered an
opinion as to what it would have
done if it were faced with a scenario like ours i.e. where leave had
been granted out of time and
without a separate application on notice
for extension of time. As we have said above this was because such
issue was not on the
agenda. It is, with respect, not entirely
correct in our humble view to conclude that the NIB Case answered the
kind of question
we have herein namely ‘is any leave granted out of
time minus a separate application for extension for time
automatically to be
vacated’? At most, and again we say this most
respectfully, the NIB Case provided guidance on what is to be done if
having ran
out of time a party still wants to apply for leave for
judicial review. We doubt therefore whether this case, aside from
what we
say above, is of great assistance in resolving the question
before us.

The
Treadle Pumps case

The
Interested Party obtained leave for judicial review after the period
for so doing had expired. Much like in this case. After the
Interested Party has sought and acquired a date of hearing the
respondents applied, by way of preliminary objections, to have leave
vacated and the case dismissed. Various grounds were advanced.
Prominent amongst them was the fact that the parties were the wrong
parties, that Order 53 r 4 RSC had been flouted in that the
application for leave was made after three months and without a
request
for an extension for time within which to ask for such leave,
that the applicant had not complied with the court’s orders in
respect
of affidavits, the filing of skeleton arguments, the lodging
of a court bundle etc.

While
considering Order 53 r 4 the court made remarks similar, if not
identical, to those made in the NIB case. After a full consideration
of the issues it thought the matter deserved ‘outright dismissal’.
The court found for the respondents in all the issues raised.
It was
thus found that apart from the breach of Order 53 r 4 RSC, the
respondents were the wrong parties, that procedures relating
to
judicial review had not been followed and also that the applicant had
not fully complied to the letter with the court’s order
granting
leave. It was in those circumstances that the court thought the
matter deserved outright dismissal. Those circumstances
are not
entirely the case herein. We are being asked to vacate/dismiss the
matter simply because of noncompliance with Order 53 r
4 RSC
abovementioned. To that extent we would again want to believe that
the considerations obtaining in the Treadle Pumps case are
not the
same as the ones we have herein. In other words whereas the issue of
failure to request for an extension of time might have
been in issue
there is doubt whether or not such failure was the ratio decidendi
of the court’s decision or whether it was but
in addition to the
other lapses of procedure referred to above. Our view of that case
actually, if we may, is that the outright
dismissal was on the
totality of the lapses in procedure committed by the Interested
Party. The question that was left unanswered,
but which we must
answer in this case, is whether the court would have dismissed the
case if the lapse had only been the failure
to apply for an
extension. For that reason our view is that whereas we appreciate the
case’s guidance on the need to apply for
an extension and the other
procedural issues raised therein it does not provide too much
guidance on the exact question before us.

The
General’s case

The
applicant sought judicial review of his dismissal form the Malawi
Defense Force. Unfortunately the three months had expired. He
brought
an application seeking an extension of time within which to bring the
application for leave. After reiterating the need to
comply with
Order 53 r 4 RSC the court dismissed the application. There were no
good reasons to justify the delay. The effect on
a leave granted in
the absence of failure to seek an extension of time did not arise
except, in our view, by way of orbiter only.
The reason is because it
was not in issue. This case cannot therefore have a direct bearing on
the question before us.

The
MDC case

The
applicant had been suspended from his employment with MDC. He sought
and got leave to have his suspension judicially reviewed.
The
respondent sought to have such leave vacated on inter
alia
grounds that; the time for obtaining leave had expired and no
extension had been granted none having been sought; that the matter
was not amenable for judicial review; and that the case should have
been in the Industrial Relations Court i.e. that the case was
in the
wrong forum. The court, correctly and as was the case in the cases
cited above, reiterated the correct position in terms
of Order 53 r 4
RSC. Specifically the court said that an application for extension of
time should be made separately and not buried
within an application
to apply for leave for judicial review. It did however, specifically
again, refuse to set aside the leave on
that basis alone. It was of
the view that leave obtained in such fashion as is the case herein
can only be complained of at the hearing
of the substantial issues.
It cited Order 53 r 1-14/31. It is only at that stage, in its
opinion, that a court would, if the situation
so warranted, refuse
any reliefs sought on the ground that the delays complained of or the
absence of an order extending the time
for getting leave would cause
hardship to or is prejudicial to the rights of the respondent.

It
is interesting to note that the court in the General’s case had
somewhat similar views. On page 5 it said:

‘The
court will, however, normally postpone consideration of hardship,
prejudice and detriment to good administration until the full
hearing
unless in the clearest of cases’.

It
cited the case of Caswell
v Dairy Produce Quota Tribunal for England and Wales
[1990] 2 AC 738 as guidance.

It
seems to us from a reading of the above cases and the RSC that it is
not correct that the court will automatically vacate any leave
granted in the absence of an application, by way of notice, to extend
the time within which to seek leave for judicial review. The
correct
position, in our view, is that it is in the discretion of the court
whether or not to vacate leave merely because Order 53
r 4 RSC was
not complied with. The court is more likely to do that where there
are other transgressions by the applicant which clearly
was the case
in all the cases referred to us by the respondent herein. Or where it
is clear even at that early stage that there is
no case to go for
judicial review. The approach to be taken, we think, must be dictated
by the circumstances of a particular case.
So that at the end of the
day it is up to the particular court seized of the matter to make up
its mind whether or not in the circumstances
it should vacate leave
merely because there was no separate application to extend the time
within which to apply for the said leave.
In the instant case the
question therefore becomes:

Should
we vacate leave for judicial review due to lack of an application and
grant of an extension for time within which to seek leave
for
judicial review?

A
look at the history of this matter might be more than useful.

The
application for leave for judicial review was initially set to be
heard ex
parte
as is the norm. But because the court was aware of the tendency to
challenge such leave especially when granted ex
parte
the court in its discretion, and hoping thereby to save time and
treasury, decided that the application be heard inter
parties.
On the appointed day, October 28^th
2005, the Respondent did not turn up despite having clearly been
served with process. Leave was accordingly granted in its absence.
Given simultaneous with the leave were directions on how the matter
was to proceed henceforth. The substantive issues were subsequently
allocated the 28^th
of February 2006 as the date for hearing. On that date the
Respondent was not ready. It had not filed affidavits in opposition.

The court was asked to adjourn the matter so as to allow them to do
the needful. The date of 31^st
of March 2006 was then set for hearing of the substantive issues. It
was on this date that we came across the first application to
set
aside leave for judicial review. For reasons beyond everybody’s
control we could not hear the application or the substantial
issues
on this date. We adjourned the matters to April 5^th
2006.

It
is clear from the history that the Respondent contributed a great
deal to the source of its gripe herein. If it had handled this
matter
with the seriousness and professionalism it clearly deserves the
matter of a lack of extension should have been dealt with
on the day
that leave was dealt with. Because the Respondent deemed it not fit
to attend court that did not happen. We doubt whether
in those
circumstances the Respondent can then come to court with clean hands
and seek to take advantage of the Interested Party’s
noncompliance
with Order 53 r 4 RSC. Or indeed whether they can come to court and
literally ambush the Interested Party with the
kind of applications
the subject of this ruling. Having taken or promised to take
appropriate steps to proceed with the matter to
trial we feel the
Respondent should not be allowed to in our view obstruct the course
of justice. The correct way forward for the
Respondent if they are
still smarting from the delays and lack of strict adherence to
procedure is to address the court about the
matter at the hearing of
the substantive issues. It would then be to the court to see how best
to deal with the matter including,
if need be, the withholding of
some reliefs sought.

On
a different level maybe we think that parties should appreciate that
procedures are not there to frustrate litigation. Rather to
facilitate the smooth and just disposal thereof. To allow the
Respondent to succeed with their applications in the present
circumstances
would have that effect. We would be slow to go down
that path. Further we think that Order 2 RSC should be had in mind.
An irregularity
should not be allowed to nullify proceedings unless
it occasions injustice to the other party or is incapable of being
recompensed
by way of costs. We think when all is said and done
nobody has complained about injustice or some other injury herein.
Just plain
noncompliance.

CONCLUSION

The
long and short of it all is that the leave for judicial review will
not be vacated. The matter will instead proceed to trial.
As we said
on April 5^th
2006 we expected the parties hereto to within 14 days from the said
5^th
April 2006 to attend the District Registrar to obtain a date of
hearing.

COSTS

These
are in the discretion of the court. In the exercise of such
discretion the costs will be in the cause.

Dated
this April 20, 2006 at Mzuzu.

L
P Chikopa

Judge