S v Malawi Police Service and Another; Ex Parte: Matecheta (78 of 2006) ((78 of 2006)) [2006] MWHC 132 (17 November 2006);

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IN THE HIGH COURT OF MALAWI

LILONGWE DISTRICT REGISTRY

MISC. CASE NO. 78 OF 2006


THE STATE

VS

MALAWI POLICE SERVICE - 1ST RESPONDENT

THE ATTORNEY GENERAL - 2ND RESPONDENT

EX – PARTE WEZZIE MATECHETA…………………………………



CORAM: CHOMBO, J

Counsel for the Applicant - Kita

Counsel for the State - Absent

Court Interpreter -


R U L I N G

This is an inter-parte application for leave to apply for judicial review. The State was duly served and service acknowledged but no appearance was made in Court.


The background to the application is that the applicant is employed as a Policeman and formerly stationed in Lilongwe. Following the procedure at Police, she asked for leave to get married to a man who had previously been married but was divorced. The said permission was not granted on the bases that the man was already married. The applicant produced a copy of a divorce certificate obtained at the First Grade Magistrate Court in Lilongwe as evidence of the man’s status and copies of authorization by parents for both man and woman that the two could get married. These documents, exhibited and marked in court as “WM2” and “WM3” were sent to the Inspector General’s office but still approval was denied and the reason given was that the man was already married. For some unexplained reasons the applicant was transferred to Chikwawa. She now applies to court for leave to apply for judicial review and for an expedited hearing of the application for judicial review and asking the court to make a number of orders in the interim. I have the following observations and remarks on the matter:


It was submitted by the applicant that the need to seek permission to marry is only for female employees. The applicant also submitted that the regulations, though binding on her, have never been made available to her. I would have been persuaded by the applicant’s reasoning if I had not seen exhibit WM8 which states that;


“It is a procedure that when a policewoman wants to get married, she applies for permission to join husband.”


It would seem that the main purpose for the requirement is the fact that the Policewoman will be joining a husband. If this was the only purpose I would have had no problems. The said exhibit would appear that there are other ulterior motives for requiring women to put in the said application. The said exhibit WM8 states further that


“When we received her application letter for marriage, our officers went to find out about the man and it was found out that he was married.”


It was on the bases of this ground that the said permission was refused. It has not been established whether the said “checking” is only done in respect of men who desire to marry female policewomen and not women who desire to marry Policemen. If the same is the practice then this is blatant evidence of discrimination and the matter must be rectified immediately.

It was further learnt that a copy of the said regulation has never been made available to the applicant. If this is the case, and to say the least, I would say that on institution of such magnitude and importance is in danger of having its reputation tainted. One cannot expect people to be bound by regulations that have not been made available to them, no matter there is such speculation that the said rules only bind women. I would urge the 1st respondent to take out of its drawers and bring to the attention of all employees, any rules or regulations that have a binding nature on the employees.


I note also that after the applicant’s lawyers wrote to the 1st respondent a response to the letter was given, by the same exhibit WM8, that;


“Prior to her application letter, we received a complainant from Mrs Emelida Mwawa that S/Insp.Wezzie Matecheta was going out with her husband Mr Mwawa and that Mr Mwawa had chased his wife Mrs Emelida Mwawa and the children from home. Because of this complainant, we did not approve her marriage.


We do not have any objection to approve her marriage as long as she follows the right procedure.”


Whatever reasons the 1st respondent had for objecting to the marriage were overtaken by this exhibit WM8. The 1st respondent gave the reasons for the refusal to grant permission and then proceeded to state that they had no objection to the said marriage if the right procedure was followed. The 1st respondent may have had good reasons for refusing to grant the permission but surely when the certificate of divorce was submitted to them they had no further grounds for the objection. However, the main thing to resolve in an appeal of this nature is whether grounds for the refusal were given. There were reasons given for the refusal in the first instance after the divorce certificate was submitted. The second time around the reasons were given, but without any substance to them – the 1st respondent merely stated that one Emelida Mwawa had complained about the applicant interfering with her marriage and did not go any further. In my view steps should have been taken to have the sworn evidence of the said Emelida put to the applicant. The reasons given, I find in the circumstances, to be irrational.


The applicant alleges that the 1st respondent had decided to transfer her so as to frustrate her and her fiancé in their attempt to get married. Although there is no apparent indication of bad will on the part of the 1st respondent it was said in the case of R v Derbyshire County Council, ex parte The Times Supplement Ltd (1991) 3 Admin. LR 241 that;


“the decisions by a county council to cease advertising in journals controlled by Times Newspaper (which had written an article criticizing a councilor) was explicitly held to be motivated by bad faith and declared invalid.”


The 1st respondent purported to transfer the applicant to Chikwawa after she questioned the 1st respondent’s decision to refuse to grant her approval to marry the man of her choice; this can only be seen to have been motivated by some malice or ill will on the part of 1st respondent for the applicant’s stand. The decision must there be invalid.


One of the reliefs sort by the applicant was for damages and costs of the application. With due respect I desist from granting these two heads. The applicant first wrote asking for permission to marry one Samuel Mwawa in May of 2005. The response did not come until sometime in October, 2005. After that it is said that the applicant submitted the divorce certificate and letter of approval from Mr Mwawa’s and her own traditional authorities (chiefs) allowing the two to get married. It is not known when these were submitted but it must have been around 8th December 2005. According to paragraph 5 and 6 of the applicant’s affidavit after she submitted these documents she was issued with a letter of transfer on 8th December 2005. After that letter of transfer no other action was taken until on 13th July 2006 when her lawyer wrote a letter to the 1st respondent protesting the refusal to give permission to marry. This was clearly 6 months after the letter of transfer was issued and almost 10 months after the refusal for her to marry Mr Mwawa was issued. This clearly contravenes the period within which applications for judicial review are allowed.


According to the rules of practice an application for leave to apply for judicial review must be made not more three months after the event complained of happened. The time limit according to paragraph 74.31 of Blackstones Civil Practice 2001 provides that


“In a claim for judicial review the claim form must be filed promptly, and in any event not later than three months after the grounds to make the claim first arose. (CPR, r 54.5(i) ). This time limit may not be extended by agreement between the parties (r. 54.5 (2) ) where the High Court considers that there has been undue delay in making a claim for judicial review, the court may refuse to grant permission or any relief sought in the claim if it considers that the grant of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration.” [underlining supplied for emphasis]


Where there is undue delay it is common practice for applicant to apply for extension of time to make application out of time. The said application, which gives reason for the delay, is what helps court to consider whether to hear the application despite the delay. Such permission not having been sought, but the court, upon its own discretion having decided to her the application, the absence of the said application not withstanding the court is of the strong view to grant the relief and costs without first giving the 1st respondent an opportunity to oppose an application out of the time would be prejudicial.


To this limited extent therefore the application is allowed and no more. As the 1st respondent has invited the applicant to follow the procedure I would advise the applicant to resubmit her application and hope that the 1st respondent will approve the same as evidenced by their words in exhibit “WM8” that;


“We do not have any objection to approve her marriage as long as she follows the right procedure.”


To this effect, it the applicant is to follow the “right procedure” she must be given a copy of the rules and regulations on applying for such approval.



MADE in Chambers this 17th November 2006.




E. Chombo
JUDGE