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Malawi Supreme Court of Appeal - 2007

10 judgments
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10 judgments
December 2007
Dwangwa Cane Growers Trust v Chisangwala Henry (Civil Cause 2127 of 2007) [2007] MWSC 132 (2 December 2007)
Government may excavate for irrigation on customary land; surface rights remain and compensation is payable for damage.
  • Land Law — Customary Land — Extent of Rights (Surface Use Only) — Land Act s26
  • Property/Development — Infrastructure on Customary Land — Authority To Excavate And Lay Pipes — Duty To Refill And Compensate
2 December 2007
October 2007
Stanbic Bank Limited v Richard Mtukula (MSCA Civil Appeal 34 of 2006) [2007] MWSC 4 (15 October 2007)
Whether 'wages' include allowances — court held they do and awarded recalculated compensation to the respondent.
  • Employment Law
    • — Wages and Remuneration — Whether 'wages', 'pay' and 'salary' include allowances and benefits — Construction of Employment Act s3
    • — Compensation for Unfair Dismissal — Calculation period for awards under s63(5) — Awards limited to years actually served
15 October 2007
July 2007
Jacob v Republic (MSCA Criminal Appeal Case 18 of 2006) [2007] MWSC 471 (19 July 2007)
The mandatory death sentence for murder infringes dignity, fair trial and access to courts; section 210 is therefore invalid.
  • Constitutional law — Mandatory death penalty — Section 210 Penal Code — Violates right to human dignity and prohibition of inhuman or degrading punishment (s.19) — Denies access to court for final determination (s.41(2)) — Denies fair trial by preventing sentencing discretion (s.42(2)(f)) — Sentencing is part of trial — s.210 declared invalid to that extent.
19 July 2007
Sugar Corporation of Malawi Ltd v Ron Manda (MSCA Civil Appeal 7 of 2007) [2007] MWSC 3 (18 July 2007)
Fraudulent insurance claim justified summary dismissal; procedural irregularity did not make dismissal unfair.
  • Employment Law
    • — Discipline and Dismissal — Fraudulent submission of compensation claim as serious misconduct — Employment Act ss 57, 59, 61
    • — Procedural Fairness — Presence of employer’s representative during deliberations — Effect where evidence of misconduct is overwhelming
18 July 2007
June 2007
In Re: Question of the Crossing of the Floor by Members of the National Assembly; In Re: Presidential Reference of a Dispute of a Constitutional Nature under Section 89(1)(h) of the Constitution and Section 65 of the Constitution (44 of 2006) [2007] MWSC 76 (14 June 2007)
Court: constitutional provisions cannot be judicially invalidated; section 65(1) valid; independents unaffected; conduct governs ministerial cases.
  • Constitutional law — jurisdiction to invalidate constitutional provisions — anti‑defection (section 65(1)) — compatibility with rights to association, conscience, expression and political participation — independents unaffected — party‑elected MPs who resign and join another party cross the floor — ministerial appointment not per se defection.
14 June 2007
In the Matter of the Question of the Crossing the Floor by Members of the National Assembly (Presidential Reference Appeal 44 of 2006) [2007] MWSC 1 (14 June 2007)
Courts cannot invalidate constitutional provisions; section 65(1) is valid, independents do not automatically cross the floor, ministerial appointment alone is not automatic crossing.
  • Constitutional Law — Judicial Review — Whether courts may invalidate provisions of the Constitution or only review laws and executive acts for conformity
14 June 2007
R v Katsekera & Ors. (MSCA Civil Appeal 4 of 2006) [2007] MWSC 5 (14 June 2007)
A confession can sustain a murder conviction if materially true and corroborated; confessions are not admissible against non-adopting co-accused.
  • Criminal law — Confession evidence — Confession admissible against co-accused only if adopted — Confession may sustain conviction if court satisfied beyond reasonable doubt of its material truth and supported by independent corroboration — Right to silence and effect of prior alibi statements.
14 June 2007
May 2007
R v Banda (Criminal Appeal 1 of 2007) [2007] MWSC 470 (11 May 2007)
Whether a photocopied certificate and formal charge defects can be cured and sustain conviction when prosecution proves falsity and mens rea.
  • Criminal law — Uttering false document; giving false information to public officer — Admissibility of secondary evidence (photocopy) under Rules 3(5) and 4 — CP&EC ss.3 and 5 cure formal defects — Right to silence and consequences — Appellate jurisdiction under s.11(3).
11 May 2007
February 2007
State v President of the Republic of Malawi & Ors.; Exparte: Malawi Law Society (6 of 2006) [2007] MWSC 7 (8 February 2007)
The National Assembly determines judges’ pay under s114; the Executive must implement that determination; courts will not probe internal parliamentary procedure.
  • Constitutional Law — Judicial Independence — Determination of judicial remuneration by National Assembly under s114(1) — Scope and effect of s114(2)
  • Parliamentary Privilege — Internal proceedings and Standing Orders — Non-justiciability of parliamentary procedure absent constitutional conflict
  • Public Finance — Budgetary provisions and Minister of Finance — Duty to implement valid National Assembly determinations
8 February 2007
January 2007
Chafuli v Chibuku Products Ltd (Civil Cause No. 3705 of 2001) [2007] MWSC 469 (4 January 2007)
An employer’s request to stay and reconcile missing cash was reasonably justified and not false imprisonment; police detention was State responsibility.
  • Tort —  False imprisonment
    • — Employer’s instruction to remain at work to reconcile cash shortage — Reasonable justification
    • — Liability for police arrest and detention — Distinction between instigating arrest and merely providing information — Section 42(2)(b) (48‑hour rule)
4 January 2007