Ex Parte Joy Radio Ltd; In Re: S v Malawi Communications Regulatory Authority (MACRA) (143 of 2008) [2009] MWHC 1 (16 January 2009);

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IN THE HIGH COURT OF MALAWI

 

PRINCIPAL REGISTRY

 

Miscellaneous Civil Cause No. 143 of 2008

 

Between:

 

The State

 

And

 

Malawi Communications Regulatory Authority (MACRA)…………….Respondent

 

 

ex-parte Joy Radio limited ………………………………………………...Applicant

 

Coram: Honourable Justice A.C. Chipeta

Kasambala, of Counsel for the Applicant

Masumbu/Ndau, of Counsel for the Respondent

Manda, Official Interpreter

 

RULING

 

This is a Judicial Review matter. It commenced with the grant of Leave for its commencement by Honourable Justice Potani on 19th October, 2008. Since this grant of leave was accompanied by the concurrent grant of interim relief Orders on ex-parte basis, for the most part since then interlocutory business took center-stage in this matter, with multiple inter-partes and ex-parte applications being taken up, heard, and determined by several of my Brother Judges on the said interim reliefs. On 22nd December, 2008, however, the substantive matter got its turn to be heard, and it came before me. This Ruling, therefore, is on the substantive Judicial Review, and not on any interlocutory business in it.

 

From the processes filed in the matter, the straw that broke the Camel’s back for this matter to crop up is a decision made on 16th October, 2008 by the Malawi Communications Regulatory Authority, which for convenience will hereafter just be referred to as MACRA. The decision in question revoked Joy Radio Limited’s Radio Licence. The same was communicated to the Applicant by a letter of that same date, being Document 5 of exhibit “TB” in the Affidavit of Tailosi Bakili, sworn in support of both the Application for Leave and for the Originating Motion for Judicial Review. It is this decision that the Applicant sought and obtained leave for, on 19th October, 2008, to take the present steps to challenge in Court.

 

MACRA is a creature of the Communications Act, 1998, which is Cap 68:01 of the Laws of Malawi. It is a body Corporate established under Section 3 of that Act with general mandate to fulfill the multifarious purposes the said Act exists to achieve in the Communications Sector in Malawi. As the layout of the Act clearly demonstrates, the Communications Sector in Malawi is quite wide. It will be seen, inter alia, that following the establishment of MACRA in Part II, the Act goes on to address the regulation of Telecommunications in Part III, to deal with the issue of Radio Spectrum Management in Part IV, and to then tackle the regulation of Broadcasting in Part V, the regulation of Postal Services in Part VI, the incorporation of Malawi Telecom in Part VII, the establishment of Malawi Posts in Part VIII, and the reconstitution of the Malawi Broadcasting Corporation in Part IX.

 

While this is so, Joy Radio Limited happens to be one of the Stakeholders in the same Communications Act. Until this dispute arose, it had both a Radio Licence under part IV of the Act, in this matter exhibited as “M3” in the affidavit of Mr James Chimera, MACRA’s Director of Broadcasting, sworn on 27th October, 2008 and used in the Judicial Review herein, and a Broadcasting Licence under part V of the Act, being exhibit “M4” in the same affidavit just referred to. In the scenario prevailing, it strikes me, that if confusion is to be avoided in the use and application of the various provisions of the Communications Act herein, the duties and powers MACRA has over the numerous and different sectors of communications in the country need to be properly understood and distinguished, each set from the other, both by MACRA itself and by all other Stakeholders in the Act.

 

For purposes of arguing the Judicial Review, Joy Radio Limited has placed reliance on (i) the form 86A it used at Leave stage, (ii) the affidavit sworn on 18th October, 2008 by Tailosi Bakili, its Project Manager, with its accompanying exhibits, (iii) a Supplementary Affidavit along with its exhibits sworn by the same Deponent on 26th November, 2008, and (iv) Submissions with authorities filed on 19th December, 2008. On the MACRA’s part no affidavit was specifically filed against the Motion for Judicial Review. Instead, by Notice filed on 19th December, 2008 that party opted to use the affidavit its Director of Broadcasting earlier referred to and sworn on 27th October, 2008 in support of its application to vacate the interim reliefs the Applicant had obtained ex-parte in the matter. In addition to that, the Respondent also placed reliance in its opposition to the Judicial Review on the affidavit of its General Counsel, Mr Ndau, which he swore in response to Mr Bakili’s Supplementary Affidavit on 17th December, 2008. Further, the Respondent filed skeleton arguments, in which it cited authorities, against the success of this Judicial Review.

 

From the facts angle there does not seem to be much dispute between the parties, and no challenge has been raised against the way the Applicant has articulated the bulk of the same. Going to the Supplementary Affidavit of the Applicant first, there is a chain of correspondence between the parties herein, which the Applicant has exhibited, showing the history behind the tension that has led to the present matter. “TB2” to “TB10” are the relevant exhibits. “TB2” is a letter dated 14th January, 2008 from the Director of Broadcasting of MACRA to the Applicant Radio Station. It demands production of an unedited recording of the Kalibu Programme of 9th January, 2008 between 6.00 and 8.00 pm, citing Section 54 of the Communications Act and Article 10.8 (1)- (3) of the Broadcasting Licence as authority for the demand. “TB3” is the response from the Applicant to MACRA, dated 1st February, 2008, enclosing a CD of the requested recording. “TB4” is another letter from the Station Manager of Joy Radio Limited to MACRA. It is itself dated 18th February, 2008 and it refers to another letter of MACRA allegedly dated 11th February, 2008, in which the latter had apparently asked the former for broadcast material featuring Mr kamlepo Kalua between 1.00 pm and 2.45 pm on 9th January, 2008. The letter denies having carried out any such broadcast, but all the same indicates that it encloses a CD for the period in question.

 

“TB5,”is another letter from MACRA to Joy Radio, and it is dated 27th March, 2007. Citing the same legal provisions as in “TB2,” it asks that MACRA be provided with unedited versions of meetings addressed by Honourable Brown Mpinganjira at Chisitu in Mulanje on 25th March, 2007 and by Dr Bakili Muluzi at BCA Hill in Blantyre on 26th March, 2007. By “TB6,”a letter dated 29th March, 2007 the Station Manager of Joy Radio obliged by sending a compact disk containing the requested material. “TB7” follows in the footsteps of the requests so far seen. It is a letter dated 31st March, 2008 from the Respondent’s Director of Broadcasting, to the Applicant asking for production of the unedited version of a rally addressed by former President Dr Bakili Muluzi at Liwonde in Machinga on 30th March, 2008. The Applicant’s response is marked “TB8” and it is dated the very same 31st March, 2008. Its tone suggests that concerning these multiple requests fatigue was beginning to set in. In part it reads:“We would like MACRA to know that Joy Radio will always cooperate in such matters. However we have since referred the matter to Joy Radio’s Legal Advisor.”

 

The Applicant has added among its exhibits evidence that the sort of interaction just seen existed even earlier than the year 2008. It would appear that at some point in time MACRA had issued some Press Release, although none has been exhibited. “TB9,”however, is a letter dated 10th April, 2007 from the Applicant. By what it contains it was written in a bid to comply with the Press Release in question. It seeks to inform MACRA and to at the same time seek its permission to carry out a live broadcast of a Public Rally slated for 1.00 pm on 15th April, 2008 at Fatima in Nsanje by former President Dr Bakaili Muluzi. Another year the Applicant has brought into focus is the year 2005. Exhibit “TB10”on this bunch of exhibits is a letter dated 18th April, 2005. It indicates that it was carrying as an enclosure a compact disk, being a recording of the speech of Dr Bakili Muluzi on 3rd April, 2005, per MACRA’s request of 6th April, 2005.

 

Coming closer to the time of the dispute, I next turn my attention to the affidavit one Tailosi Bakili initially swore in this matter. His said affidavit, which was sworn on 18th October, 2008, caries five documents in a bunch commonly marked as “TB.” Document 1 therein is a request letter like those just gone through from MACRA to Joy Radio Station. It is dated 19th June, 2008. It seeks production of the unedited version of a recording of the addresses by former President Dr Bakili Muluzi and others at Kawiriwita ground in Machinga on 15th June, 2008. In its response through Document 2 of this exhibit, the Applicant made no effort to hide its exasperation with the requests of the Respondent. The response in question is dated 23rd June, 2008, and in part it reads: “Firstly, Joy Radio wishes to draw MACRA’s attention to the fact that as a regulatory authority you do have your own monitoring mechanism and facilities. Please kindly indicate why you require our recording over and above what you already have. We are unable to appreciate your undertaking that you will this time round give us feedback on your assessment because the authority has not kept similar and numerous undertakings before.

 

Secondly, we shall appreciate your authority’s indication as to who are the complainants and the nature of the complaints leveled against us which have necessitated your request.”

 

It is not clear what immediate reaction, if any, the Applicant’s letter of complaint against this request generated from MACRA. What the Applicant has next exhibited is Document 3 in “TB,” which is a letter MACRA appears to have issued some two months after this reply. It is dated 28th August, 2008 and is entitled “Breach of Licence Conditions and Provisions of the Communications Act.” In it MACRA announces its having come across several issues with serious bearing on the Communications Act in respect of Radio and Broadcasting Licences of Operators including Joy Radio Limited. It then accuses the Applicant of changing from its initial Shareholders to Atupele Properties Limited without complying with the Communications Act and the terms of its licence. MACRA further notes that Atupele Properties Limited is owned by Atupele Muluzi and Dr Bakaili Muluzi, who it claims hold significant political positions in the United Democratic Front Party. The letter goes on to assert, and I quote: The shareholders of Atupele Properties Limited, being politicians, are not entitled to hold a licence under the Act. In our view, politicians cannot circumvent the legal prohibition by creating a limited company.”

 

Next, the letter accuses the Applicant of persistently airing political propaganda speeches, advancing the political agenda of both Dr Muluzi and the UDF. It then concludes that the licence for the Applicant is being controlled by an alliance of a party-political nature in violation of the said Licence and the Act. The letter then reverts to its request of 19th June, 2008 for broadcast material of the Rally at Kawiriwita, and threatens that refusal to submit the same could result in revocation of the Applicant’s Licence. It winds up with a request for representations within 28 days on why the Applicant’s Licence should not be revoked. This led to M/S Ralph and Arnold Associates responding to MACRA on behalf of their clients on 18th September, 2008 in Document 4, indicating without specifying the date of compliance, that the requested material had been submitted, and generally arguing that MACRA had no cogent grounds for revoking the Applicant’s Licence as threatened.

 

It is then that by Document 5, on 16th October, 2008, MACRA went ahead and revoked the Applicant’s Radio Licence. In this letter MACRA espouses the view that the representations from the Applicant’s Lawyers fall far short of exonerating it from its blatant breaches of the Communications Act and the terms and conditions of its Licence. It also notes the Applicant’s continued disregard of the order to produce broadcasting material as per request of 19th June, 2008. The letter ends as follows: “ Consequently, and pursuant to Section 42 of the Communications Act, the Authority hereby revokes your radio licence forthwith on the grounds contained in the authority’s letter of 29th July, 2008. Please note that any continued operation of your radio station without a radio licence will be in violation of the Communications Act, and therefore, illegal. The Authority will do everything in its power to prevent any such deliberate disregard of its decision.” A point to note is that the letter of 29th July, 2008 has not been exhibited by either party, as the letter bearing threats in this area last referred to is Document 3 of 28th August, 2008.

 

This far, if I may say so, there is no dispute between the parties as to the pattern of their relationship, and as to how it came about that the Applicant should take up these proceedings. One point, however, which the Respondent has raised that has not been covered by the Applicant’s facts is its reference to a meeting of the parties on 4th June, 2008. According to paragraph 4.1 of Mr James Chimera’s affidavit the Respondent’s claim is that at the said meeting the Respondent’s Station Manager, Mr Peter Chisale announced that Joy Radio would not be complying with any future orders from MACRA, including orders for production of broadcast material. This aside, the only dispute that I see between the parties on the facts arises on what followed hereafter. Following from the assertion M/S Ralph and Arnold Associates made in Document 4 of “TB” on 18th September, 2008, to the effect that its client Joy Radio Limited had already submitted the broadcasting material last requested and challenged in June, 2008, exhibit “TB11” of the Supplementary Affidavit Tailosi Bakili swore on 26th November, 2008 appears to come in to fill this gap of non-disclosure as to when in fact the Applicant claims to have so complied with the request that it had questioned. This exhibit is a letter from Joy Radio Limited to MACRA and it is dated 11th August, 2008. It refers to the request of 19th June, 2008 and its earlier response thereto of 23rd June, 2008, and indicates enclosure of a compact disk containing a rebroadcast of Dr Bakili Muluzi’s Machinga Rally of 15th June, 2008. The last exhibit in the supplementary Affidavit herein is a CD the Deponent represents to be a true copy of the recording of the speech made by the Minister of Information and Civic Education, prior to the revocation of Licence herein, publicly directing MACRA to close down Joy Radio Station. The Applicant thus asserts that the revocation of licence in this case was politically motivated.

 

Of all facts so far presented it is only the last bit of the Supplementary Affidavit that MACRA has taken steps to refute. By the Affidavit in Response sworn on 17th December, 2008 General Counsel Ndau of MACRA deposes to the effect that in the investigations he carried out at his workplace no one has seen the letter of 11th August, 2008 that purports to have contained broadcast material the Applicant earlier resisted to supply. He has gone on to point out that the Applicant has not shown how and to whom the said letter was delivered at MACRA. He thus doubts if at all the letter in question was sent to MACRA on 11th August, 2008, especially as the letter of 18th September, 2008 which first alleged non-compliance made no reference to it, as the entire form 86A also makes no reference to the said letter. Regarding the allegation that MACRA revoked the Applicant’s licence from political pressure, the Deponent confirms that at all material times his employer acted independently, without interference from any politician.

 

It will be seen from the picture the above facts paint that the problems that led to the Respondent revoking the Applicant’s Radio Licence can be split into two categories. There is the issue on which correspondence shows that the parties did not share a uniform view on, one concerning MACRA’s requests over the years for broadcasting materials of various programmes and rallies under Section 54 f the communications Act, which falls under the part of the Act dealing with regulation of broadcasting, and Article 10.8(1)-(3) of the Applicant’s Broadcasting Licence. This, to be precise, is the problem that can well be said to have been of some duration between the parties. It is clear that for a long time the Applicant routinely obeyed and complied with the Respondents demands in this regard, but that later it began questioning the legal base of the said demands, whose frequency it was beginning to find irritating. Matters came to a head when having at some point warned MACRA that it was referring the issue to its Legal Advisors, Joy Radio on 23rd June, 2008 took the bold step to challenge the Regulating Authority by demanding some explanation from it regarding the real reason behind the requests. As can be seen MACRA made no direct or immediate response to that query or challenge. It was completely silent between June and August, 2008, only at the end of the said two months to come up with fresh and different accusations altogether against Joy Radio Limited. Its reference at the end of the said letter to the last requested broadcasting material was not a response to the query, a threat of revocation of licence for the new allegations as well as for failure to submit the said broadcast material. The letter ended with asking the Applicant within 28 days show cause why its licence should not be revoked.

 

If I have followed the parties arguments properly, vis-avis the issue of MACRA every now and then asking the Applicant to supply it with unedited broadcast material of one type or another, the Applicant is puzzled that whereas all these demands were premised on provisions in the Act dealing with regulation of broadcasting and terms within the Applicant’s Broadcasting Licence, the punishment the Respondent eventually chose to met out for querying one such latest request, was a revocation, not of the Broadcasting Licence these provisions related to, but of the Applicant’s Radio Licence, which was never in issue in all these requests. Indeed Joy Radio Limited finds it rather funny, if I may so put it, that if indeed it failed to comply with demands pertaining to MACRA’s regulation of broadcasting, why in a twist of events it went for the revocation of the Radio Licence that is governed by a different part of the Communications Act, while neglecting the remedial measures Section 54 of the Act puts in place for breaches of Broadcasting Licence provisions and terms and conditions.

 

Building on this, the Applicant made reference to the provisions the Respondent had always cited in requesting broadcasting material. In brief, whereas MACRA under Section 54 of the relevant Act is mandated to monitor compliance with the terms and conditions of broadcasting licences, with the code of conduct for broadcasting, and with other material provisions of the Act relevant to broadcasting licences, it is also empowered to hold public hearings on any matters relating to the monitoring and enforcement of broadcasting licences. In particular Subsection (3) provides to the effect that where MACRA determines that a Broadcasting Licensee has failed to comply with any of the binding terms and conditions of its licence or of the Code of Conduct or of the Acts provisions that deal with broadcasting, it shall notify the said Licensee in writing. Next, if after hearing any representations of the Broadcasting Licensee so notified in writing, it confirms the non-compliance, it ought then to publish its findings and the reasons for the same. Only then by virtue of Subsection (5), after taking into account the nature, gravity, and consequences of the non-compliance, and after hearing representations by the Licensee or any other interested persons in response to the publication of its findings, would MACRA then make orders it considers appropriate.

 

Among the orders MACRA may choose from under this provision are (i) requiring the Licensee to broadcast either a correction, or an alternative version, or a balancing opinion, or (ii) to direct the Licensee to desist from non-compliance or (iii) to impose a fine proportional to the effects of non-compliance, or (iv) to direct the Licensee to take appropriate remedial steps. Subsection 6 then comes in to empower MACRA in event of the concerned Broadcasting Licensee not complying with the order it has so made against it, to prohibit the Licensee from providing a broadcasting service, in the first instance for a period not exceeding 30 days. Turning to Article 10.8(1)-(3) of the material Broadcasting Licence, the Applicant points out that it simply provides that the Licensee shall keep in unedited form a record of all broadcast programmes in a form from time to time determined and notified by MACRA, and that it so keep and maintain such records for not less than 45 days, and that MACRA has the right to request the production of any such records for any lawful purpose. The Broadcasting Licence in the provision cited does not carry the penalties MACRA can impose.

 

Looking at the fact that the disputed request related to broadcasting, and at the elaborate procedure Section 54, which MACRA had throughout been citing and did cite in the case of this request, provides before MACRA can met out any form of punishment against any offending Broadcasting Licensee, the Applicant argues that MACRA not only fell short of complying with the procedure it ought to have followed if indeed the Applicant had not complied with the request to submit the broadcast material in question, but that it also went out of its way when it ended up imposing as punishment the revocation of a Radio Licence that has nothing to do with Section 54 or the part of the Act the claimed breach falls under.

 

Beyond this, the Applicant claims that it did not in fact fail to comply with the June, 2008 request to provide the broadcast material relating to the Kawiriwita Rally in Machinga. Having questioned the basis of MACRA routinely requesting this type of broadcast material, when in its belief, MACRA had its own parallel means of monitoring the same, and having at the same time asked about the complainants and the complaints behind these requests, despite not having received a response, the Applicant claims that on 11th August, 2008 it complied with the request by sending a CD of the material asked for to MACRA. The Applicant then takes the view that if, as MACRA claims, the communication of 11th August, 2008 did not reach it, and that it thus only first got to learn that the Applicant was asserting compliance with the request from the September letter of M/S Ralph and Arnold Associates, then all it needed to have done was to ask the Applicant to provide the particulars of the alleged compliance. The Applicant thus expressed surprise that MACRA rushed to conclude that there had been no compliance without first hearing the Applicant out on its said assertion of compliance and then jumped to the revocation of its Radio Licence, which licence had nothing to do with the requsted broadcast material in question.

 

Turning to the second limb or category of the misunderstandings between the parties, which in comparison to the first had a much shorter life-time, it will be seen that it virtually surfaced from the blues after the parties had reached a stalemate on the issue of production of broadcast material. While the Applicant was awaiting an answer to its query against MACRA’s requests for broadcasting material every so often, it amounted to a complete change of tune on the part of MACRA, after two months of silence on this query, to raise totally different accusations against the Applicant. As earlier seen, through document 3 in exhibit “TB” it this time round accused the Applicant of changing its shareholding without informing it and without complying with the terms and conditions of its Broadcasting Licence, apart from accusing it of being owned by politicians, and of being controlled by a political alliance. To show which licence had terms and conditions that could have allegedly been so violated, the Applicant invited the Court to look at MACRA’s exhibits “M3,” which is Joy Radio Limited’s Radio Licence, a page long document without any annexed terms and conditions, and “M4,”which is Joy Radio Limited’s Broadcasting Licence, with an annexture of 11 pages of the terms and conditions of the licence.

 

It is the Applicant’s argument that all issues of transfer of shareholding were communicated to MACRA, that there was no violation of the terms and conditions of its Broadcasting Licence, that the shareholding of a limited company in the Applicant could not legally be equated to shareholding by politicians even if shareholders in that company included a politician(s), and that the Applicant is not controlled by politicians. Reference was made to document 4 of “TB,” a letter that was written to MACRA to explain this. The Applicant then expressed surprise that the Respondent did not invite it for any hearing relating to its Radio Licence, and that MACRA did not at all follow Section 42 of the Communications Act before citing it in revoking the Applicant’s Radio Licence. Likewise, in the case of the second category of dispute, therefore, Joy Radio Limited claims to be puzzled that on matters pertaining to its Broadcasting Licence under Part V of the Act, MACRA has punished it without a hearing, and under Section 42, which is a provision belonging to Part IV of the Act.

 

 

In its written as well as in its oral arguments for inviting this Court to judicially review the above decision, the Applicant questions whether the Respondent has correctly appreciated and discharged its Constitutional, Statutory, and Administrative law duties in relation to carrying out its duty as a Radio Regulator in promoting and protecting the freedoms of the Press, Expression, Information, and of the right to economic activity. The Applicant contends, in the light of Order 53 rule 3(7) of the Rules of Supreme Court and, among others, the case of Du Chisiza Junior vs Minister of Education and Culture (1993) 16(1) MLR 81, that since it is the party that is directly affected by the decision revoking its radio licence herein, it has a sufficient interest to bring up these proceedings. It further contends that it has no alternative remedy against this decision as it cannot appeal to any other body than to the Courts. In this instance, the Applicant argues that the Respondent owes it the Constitutional and Statutory duties (i) not to interfere with its rights to economic activity, fair administrative justice, and freedoms of Assembly, expression, and to receive and impart information, (ii) the duty to afford it an opportunity to be heard before any drastic measure is taken against it that affects its fundamental rights and freedoms, (iii) the duty to accord it a procedurally and substantively fair hearing, (iv) the duty to give a valid reason in relation to any administrative decision it makes, and (v) the duty to comply with the Communications Act.

 

The Applicant’s stand is that the decision under attack is vitiated in law and that it warrants the intervention of the Courts in that it is unconstitutional, unlawful and ultra vires the Respondents powers, that it is unreasonable in that no reasonable party could have acted in the way the Respondent did especially after having been informed that the Applicant is not owned by politicians, and that the Respondent acted contrary to the legitimate expectations of the Applicant in not carrying out a proper hearing to establish the alleged violations of the Communications Act and of the terms and conditions of the Broadcasting Licence. Specifically on the shareholding of Atupele Properties Limited, the Applicant argues that the shareholders thereof are Dr Muluzi, a politician, and Annie Muluzi, a person not connected to politics in any way.

 

As against all the arguments the applicant has put forward, as earlier indicated, the Respondent filed skeleton arguments. I noted, however, that the oral presentation of the Respondent ignored a good chunk of what is contained in the skeleton arguments that were filed. It has accordingly made me wonder whether the portion not so referred to has been abandoned or not. I will thus begin with the arguments that featured at the hearing, and only come to the untouched part of the filed arguments later. The first point the Respondent addressed concerned the question whether, as alleged by the Applicant, MACRA was not procedural in the manner it went about revoking the Applicant’s Radio Licence. In this regard the Respondent began by referring to the letter Document 5 in the Applicant’s exhibit “TB.” This is the letter by which on 16th October, 2008 MACRA revoked the Applicant’s Radio Licence. The argument advanced is to the effect that this letter clearly gives the reasons why the licence was revoked. It cites blatant breaches of the Communications Act and of the terms and conditions of the Applicant’s licence. It also notes that the Applicant had continued to disregard its order to produce broadcast material that had been demanded by MACRA’s letter of 19th June, 2008.

 

The next point the Respondent made hinged on Section 42(1)(b) of the Communications Act. Under this provision MACRA has power to revoke the radio licence of any person who, inter alia, has failed to furnish information when requested or required by the said Authority in accordance with the conditions of a Radio Licence or under a regulation made under Part IV of the Act. It was the Respondent’s argument that the word “information” in this paragraph can include “broadcast material.” On this limb of argument it was thus the Respondent’s stand that in requesting the Applicant on 19th June, 2008 to produce the broadcast material MACRA specified, which material would fall within the meaning of the word “information,” by Joy Radio Limited failing, in the Respondent’s view, up to the time of revocation on 16th October, 2008 to so produce the sought “information” alias “broadcasting material,” the Applicant ended up duly deserving to have its licence revoked as happpened.

 

The second limb of the Respondent’s argument then hinges on paragraph (c) of the same subsection. This provision puts any person’s Radio Licence at risk of being revoked by MACRA where that person fails to comply with the conditions of his Radio Licence after having been notified of the fact by MACRA, and having had no less than 28 days to comply. The Respondent’s contention was that the Applicant having resisted to produce the recording it had been asked to produce on 23rd June, 2008, the letter of 28th August, 2008 (Document 3 of “TB”) from MACRA served to notify it of its failure to comply, and that by the time MACRA was revoking the Radio Licence on 16th October, 2008, not less than 28 days had elapsed without the said party complying. In the further alternative on this point, the Respondent submitted that the letter it so wrote to Joy Radio Limited on 19th June, 2008 was an Order, and that in failing to comply with the same in the more than 28 days that passed between the issue of the said letter/Order and the revocation of the licence, the Applicant had qualified for the punishment of revocation of licence it got in terms of paragraph (e) of the same Section 42(1) of the Act. That paragraph, if one examines it, indeed empowers MACRA to revoke the Radio Licence of any person who has had no less than 28 days to comply with its order under Part IV of the Act. Reference I this regard was made to a Dictionary definition of the word “Order,” and it is in consequence of that that the Respondent submitted that its letter of 19th June, 2008 did amount to an “Order.”

 

The Respondent then proceeded to specifically look into the question whether the Applicant complied with the request or the Order to produce herein. Referring to Document 2 of “TB,” through which on 23rd June, 2008 Joy Radio Limited questioned why MACRA needed the recording when it had its own means of monitoring, and further asked whether there were any complaints or complainants behind the requests, the Respondent pointed out that this was a clear indication that the Applicant did not comply with the demand made. Referring to Section 54 of the Act, MACRA pointed out that it is by Law mandated to monitor compliance with Code of Conduct, terms and conditions of broadcasting licences and of material provisions of the communications Act. Hereafter it went on to observe that when on 28th August, 2008 (Document 3 of “TB”) it wrote the Applicant on additional breaches, it added the point that the Applicant having already refused to comply with the demand to hand over broadcast material, it risked revocation of its Radio Licence if it continued to so refuse to comply. This is yet another sign, it was argued by the Respondent, that from June to the end of August, 2008 the Applicant had not yet complied with MACRA’s demand.

 

The Respondent hereafter went on to discredit the Applicant’s subsequent efforts to claim compliance as either false or not genuine. It first observed that in response to the letter of 28th August, 2008 herein, through its Legal Practitioners, the Applicant Radio Station only wrote in general terms on 18th September, 2008 (Document 4 of “TB”) to the effect that all broadcasting material requested in the June 19th 2008 letter were supplied, and that there was therefore no non-compliance. The Respondent wondered why in this letter there was no specification of when and how compliance had been achieved. Not believing the Applicant’s claim of compliance, the Respondent said that it went ahead to revoke the Applicant’s Radio Licence. In fact the Respondent went on to suggest that it is only after it had queried the anomally just pointed out that the Applicant ended up exhibiting to a Supplementary Affidavit copy of a letter bearing the date 11th August, 2008 (“TB11”) which it represented as having been the carrier of the required broadcast material to the Respondent. Thus, as per its Affidavit in Reply to this Supplementary Affidavit of Tailosi Bakili, MACRA, through its General Counsel Ndau, denies ever having received or seen this letter at its offices before seeing it so exhibited as evidence in the proceedings. Further to this, MACRA invites the Court’s attention to the form 86A that was used by the Applicant in applying to the Court for leave to commence these proceedings on 19th October, 2008, and wonders why this important letter of 11th August, 2008 does not feature anywhere in that form if it indeed genuinely existed at the time the Applicant commenced these proceedings. MACRA thus seriously questions the authenticity of the letter, and stands by its belief that to date the Applicant has not yet complied with its June 2008 request or Order for the production of broadcast material.

 

The Respondent then moved on to discuss the Applicant’s complaint that for alleged violation of legal provisions or terms and conditions relating to a Broadcasting Licence, MACRA has confounded it by neglecting provisions that would otherwise be applicable and plucking its punishment for the Applicant from distant and unrelated provisions by revoking a Radio Licence instead. While accepting that the Communications Act provides for the issuing of Broadcasting Licences and of Radio Licences in separate Parts of the Act, it was the argument of the Respondent that the two licences cannot be totally separate from each other. Under Section 2 of the Communications Act, which is the Definition Section, the Court was asked to note that “Broadcasting Licence” means a radio licence that authorizes the provision of a broadcasting service. Claiming as it did, therefore, that the two licences cannot really be separated, I next understood the Respondent as implying by its argument that revoking the Radio Licence for breaches in the area of broadcasting, as MACRA did in this case, was as good as revoking such licence for breaches committed in the Radio Spectrum Management area this punishment belongs to.

 

As for the Respondent’s written skeleton arguments, to be quite frank, it strikes me that the portion of the same that was not touched on or as clearly presented during oral arguments, it is in my observation to a great extent not so relevant to these proceedings. To some rather extreme detail the skeleton arguments dwell on the term “person,” distinguish “natural person” from “juristic person,” and proceed to discuss whether fundamental rights or human rights in the Constitution apply to both natural persons and juristic persons or only to one category of “person”. Wide reference is made in discussing these concepts to Malawian, Zimbabwean, Canadian, and European Court of Human Rights jurisprudence on these subjects as well as to comparable jurisprudence emerging from the International Covenant for Civil and Political Rights, its General Comments and its Optional Protocols, and also to the International Covenant on Economic, Social, and Cultural Rights. The impression I found myself left with after going through this major portion of the skeleton arguments the Respondent filed, is that the arguments are a bit too idealistic for purposes of answering the practical question whether or not the decision of MACRA revoking Joy Radio Limited’s Radio Licence, should or should not be amenable to Judicial Review as raised in these proceedings. By and large, therefore, I am left with the arguments the Respondent advanced orally at the hearing of these proceedings as representing its practical stand against the proceedings the Applicant has thus taken up against its decision.

 

Now, Judicial Reviews are of late getting to be somewhat commonplace in this Court. This notwithstanding, as I see it , they remain a peculiar species of proceedings. It would be folly, therefore, for the Court to begin taking them for granted. It is thus important that at this juncture I should remind myself of the basic principles by which these proceedings are guided. As provided for in Order 53 of the Rules of Supreme Court and its multiple Rules, and as explained in great detail in the Practice Notes thereunder, Judicial Review enables the High Court to exercise supervisory jurisdiction, inter alia, over persons or bodies that perform public duties and functions. In this instance MACRA is a creature of Statute and the duties and functions it performs are governed by the said Statute along with its subsidiary legislation. Looking at the contents of the communications Act and at what it is MACRA is involved in, I have no doubt that it is a body engaged in the performance of public duties and functions, and that judicial review would therefore lie whenever its decisions came into question. Accordingly, I do find that the leave that was granted for these proceedings was appropriate, and that I can comfortably proceed with the Review I have embarked on.

 

A point not to forget, however, is that as Lord Hailsham, L.C. observed in Chief Constable of North Wales Police vs Evans (1982) 1 WLR 1155 judicial review is not concerned with the merits of the decision attacked by the application. Rather it is concerned with the decision-making process followed by the maker of the impugned decision. In the present case the decision that has triggered these proceedings into being is the one MACRA took against the Applicant, by revoking its Radio Licence. The Court’s concern, per this feature of judicial review, ought not therefore to be whether the said decision was right or wrong. Rather it should be whether the decision was arrived at through a flawless and legitimate process. Of necessity Courts do end up setting aside the impugned decisions of public bodies or authorities once they find fault with the procedure that was adopted in reaching them, but they only do so by coincidence and consequence of first finding fault with procedure adopted in reaching the decision.

 

Fortunately for the Courts, guidelines have emerged in this field of proceedings, which operate as a kind of checklist when they go about the judicial review process. Among these guidelines is the Ultra Vires concept. In proceedings or decisions taken by a public person or body that either had no jurisdiction to act or went beyond the authority it had to act, the decision-making process can be held to be faulty on account of being ultra, i.e beyond or above, vires, i.e. powers or mandate. See: Anisminic Limited vs Foreign Compensation Commission [1969] 2 A.C. 147. Another guideline relates to the observation of principles of natural justice, where they are applicable. In such instance employment of shortcuts in reaching a decision under review, if principles of natural justice are skipped when they should otherwise have been observed, will render the decision-making process equally faulty. See: Ridge vs Baldwin [1963] 2 All ER 66. By and large, by the way, the rules of natural justice embody a duty to act fairly in any given circumstances. See: R vs Home Secretary, ex-parte Santillo [1981] Q.B. 778, R vs Liverpool Corporation, ex-parte Liverpool Taxi Operators’ Association [1972] 2 Q.B. 299 and R vs Gaming Board for Great Britain, ex-parte Benaim and Khaida [1970] 2 Q.B. 417. Likewise, where an error is evident on the face of the record the process for reaching the decision being questioned will predictably be found to have been faulty. See: R vs Northumberland Compensation Appeal Tribunal [1952] 1 K.B. 338. Finally unreasonableness in the Wednesbury sense i.e. where the decision is such that no person or body properly directing his/its mind to the relevant law and acting reasonably could have reached it, will also amount to a faulty decision-making process. See: Associated Provincial Picture Houses vs WednesburyCorporation [1948] 1 K.B. 223.

 

If, therefore, Joy Radio Limited, as Applicant, is to succeed in its bid before this Court for the judicial Review of the decision that revoked its Radio Licence, it needs somehow or other to show that the said decision was made contrary to the standards any one or more of the above tests sets down for public bodies or persons, such as MACRA, to satisfy as they go about the business of discharging their duties and functions. Going by the form 86A the Applicant has employed in the proceedings, and leaving aside the interim reliefs I already said are not part of this Ruling, the reliefs the Applicant is praying for from the Court in these proceedings are:

 

  1. A Declaration that the decision of MACRA revoking the Radio licence of Joy Radio Limited is unConstitutional, ultra vires, and unreasonable;

  2. Further or alternatively, a Declaration that the decision of MACRA is unreasonable and not in line with the Communications Act, and the terms and conditions of the licence granted to Joy Radio Limited by the MACRA;

  3. Further or other relief; and

  4. An Order for costs.

 

It happens to be clear to me from my whole discussion of this matter above, that the real bone of contention between the parties herein revolves around the power of MACRA to call for records of broadcast material as it has routinely and frequently done from Joy Radio limited and the Applicant’s decision after succumbing to such requests for so long to challenge MACRA’s use of those powers. The way I see it, whether we go by the many letters the Applicant has exhibited through “TB” and “TB2” to “TB10,” which show a chain of requests for production of numerous broadcast materials from MACRA and compliance by Joy Radio Limited, with impatience growing in the latter from the frequency and manner in which the requests were being made to it, or we go by the meeting of 4th June, 2008, which the Respondent cites as the origin of the Applicant’s “insubordination,” so to speak, to its Statutory authority, what is clear is that the Applicant’s questioning of the manner in which MACRA was carrying out its duties vis-à-vis the Applicant did not come about suddenly or abruptly. The letters clearly indicate that it is something that had been cooking and boiling for sometime, and the Respondent must definitely have seen it coming.

 

An examination of Section 54 of the Act, which MACRA always cited when making these requests, no doubt shows that MACRA had authority to monitor compliance by any holder of a Broadcasting Licence with terms and conditions of his licence, or with the Code of Conduct, or with other material provisions under the Act relevant to broadcasting licences. Expounding on this, Article 10.8(1)-(3) of the material Broadcasting Licence shows that MACRA had the right to request a licensee to produce any broadcast programmes that had to be kept and maintained for not less than 45 days, “for any lawful purpose.” By and large, accordingly, if one examines the exhibits provided in the proceedings, it emerges that MACRA’s letter requesting the production of broadcast material was throughout a standard one. In blanket terms, by citing Section 54 and Article 10.8(1)-(3) aforesaid, it asked for such production for purposes of fulfillment of its monitoring and enforcement functions. This it did in every such request without being specific as to what lawful purpose it was seeking to achieve by the request in any given case. My view is that the use of the uniform statement referring to monitoring and enforcement functions is too vague and wide. From the look of things, therefore, and from the manner in which MACRA demanded such broadcast records almost after every coverage of the former President’s Rallies or of Rallies by other figures in the Opposition, Joy Radio Limited started wondering whether all this was really being done in strict exercise of the monitoring and enforcement functions the requests were being made under or from some other ulterior motive.

 

With these types of requests dating to as far back as 2005 as shown by the exhibits, and with the Applicant showing as per “TB4” that MACRA in its enthusiasm over these requests ever even chased after programmes it had not featured as depicted by “TB4” in respect of the feature of an interview with Mr Kamlepo Kalua, and further the Applicant having by “TB8” on 31st March, 2008 warned MACRA that it was taking legal advice on the issue of these numerous requests, it comes as no surprise that the Respondent refers to a meeting of 4th June, 2008 as having led to declaration by the Applicant not to comply anymore with such requests, and to the Applicant’s letter of 23rd June, 2008 (Document 2 of “TB”) formally querying MACRA on the said requests. In the premises if one bothers to take into account the fact that at Article 10.8(3) MACRA’s right to making these requests is solely limited to lawful purposes only, then one cannot blame Joy Radio Limited for having raised this enquiry after the length of time it had blindly and dutifully complied with the requests.In the circumstances, I sincerely believe that all MACRA needed to have done would have been to respond to the Applicant’s query in a way to convince it of the lawfulness of the requests, if indeed that was the position. As it happened, however, MACRA did not so respond. In fact it stayed mute for two full months, only to abandon its silence by bringing up more allegations of breaches against the Applicant, apart from maintaining the complaint that its request had that far not yet been complied with despite it not having attended to the query raised.

 

Pausing here for a moment, it is my judgment that, as a public body mandated to administer the various provisions of the Communications Act and its related subsidiary legislation, once it had received this formal complaint or query against the manner in which it was carrying out its monitoring and enforcement functions vis-à-vis Joy Radio limited, MACRA had the duty to respond to the query, even if it saw it as a challenge to its authority, in a civil and convincing manner, so as to dispel the concerns of its Licensee before it could expect compliance. To stay mute for two months after receiving the query, only to return to the subject, not with a reply, but with threats to employ statutory powers to revoke the Inquirer’s Radio Licence, to me, not only amounts to a display of arrogance for having been questioned by a licensee on the part of the public body concerned, but also displays a desire on the part of MACRA to intimidate the Licensee and to scare it from engaging in any more such like enquiries, by demanding obedience without question. In short, the conduct MACRA resorted to hints at a Big Brother or Dictatorship Syndrome, where the suggestion appears to be that the beneficiaries of the Act should not dare voice their concerns to MACRA whenever it makes a demand from them in the name of the Law that put it into existence. To me, therefore, even before the question whether the Applicant subsequently changed heart and complied with MACRA’s request by sending the requested broadcast record becomes an issue, my finding is that MACRA’s highhanded style of handling this dispute should not be swept under the carpet and treated as non-existent. For a public body operating in an open and democratic society, where official dealings ought to be transparent to all, a display of airs of not wishing to be questioned like a headmaster dealing with a student does not accord with the current Constitutional dispensation of going about public duties and functions.

 

Moving on from here, I must say I find it difficult to agree with MACRA that Joy Radio Limited failed to comply with its request or Order for the production of the broadcast material in question. In the absence of a proper reply to the query the Applicant had raised on 23rd June, 2008 against the request or Order of 19th June, 2008, it is in my considered view that there was no sound basis for MACRA to complain against the Applicant on 28th August, 2008 about non-compliance with its request. Equally there was no basis for MACRA to use or part-use such claimed non-compliance as a launch-pad for threatening the Applicant with possible revocation of its Radio Licence. Doing so was, in my view, a confirmation MACRA’s attitude towards Joy Radio Limited was dismissive, and suggestive that it felt Joy Radio Limited had no right to express its concerns, but only the obligation to obey even where MACRA had not extended courtesy of a reply to its query. The question, therefore, whether Joy Radio indeed sent the broadcast material in issue to MACRA on 11th August, 2008 is neither here nor there, as MACRA should have been the first to be exemplary by responding to the Applicant’s concerns before allowing itself the luxury of jumping to claims of non-compliance and effecting the revocation of the latter’s Radio Licence.

 

Now, assuming for the moment that non-compliance with the request of 19th June, 2008 was established, which in the light of MACRA’s failure to address a query on the initial request has in my view not been established, I must observe that the feat MACRA has managed in dealing with the situation by dribbling from the Applicant’s failure(s) on the Broadcasting Licence front, and ending up with awarding it penalties that are only applicable on the Radio Licence front, is both novel and phenomenal. In my judgment whatever similarities or affinities there may be between Radio Licences and Broadcasting Licences, I cannot comprehend them being distinctly legislated for in two different Parts of the Act for fun, if the application of their distinct provisions was meant to be done in federation style, by not recognizing the boundaries between them. Non-compliance with the monitoring requirements of Section 54 in particular, or of the requirements of the Part V it belongs to, as I earlier had occasion to earlier demonstrate, is well catered for in terms of how MACRA should proceed to punishment if a Broadcasting Licence holder is suspected of and found guilty of breach within that Part of the Act itself. In the punishments involved there, as I already pointed out, there is no revocation of licence featuring. It would appear, therefore, that in neglecting this readily available procedure of a broadcasting breach, the only reason MACRA chose to cross-over to Part IV and to Section 42 in particular, was because it must have relished the suffering a revocation of Radio Licence would inflict on the Applicant.

 

Let me here make it clear that I am not convinced by MACRA’s argument that as in its view Radio Licences and Broadcasting licences are basically one and the same thing, then it should not matter what penalty legal provision MACRA chose to match with the breaches it was attributing to thew Applicant as long as it was between Broadcasting Licence and Radio Licence provisions. In my understanding of the law a body established by Statute is under a duty to pay attention to the Law that governs it in its day to day discharge of functions and duties. The expectation is that it will stick to what the Law directs it to do instead of diverting to exercising its own common sense or even exercising anger in lieu of legal provisions. I hold, accordingly, that in bonding the wrongs it attributed to the Applicant under Part V of the Act with penalities it borrowed from Part IV of the Act, when the Law makes it clear that these two parts are distinct and separate from one another, MACRA clearly operated outside the powers the Law has put at its disposal.

 

Having further held, as I have already done, that MACRA’s inertia or phobia of responding to a legitimate query of the Applicant as one of its Licensees effectively barred possibility of the Applicant being in breach of the request for production of broadcast material herein, it follows in my view that its subsequent condemnation of non-compliance and threats of revocation of Radio Licence if within 28 days the Applicant could not show cause why its said licence should not be revoked, cannot amount to the giving of an opportunity to be heard as principles of natural justice and Section 43 of the Constitution would require. Precisely because MACRA had not responded to the Applicant’s query, and precisely because MACRA was trying to treat its vice as either trivial or as no error at all, by resorting to more accusations and threats against the Applicant when it next summoned the courage to write the Applicant, I take the view that there was no default in existence on which MACRA could legitimately claim that it was giving the Applicant an opportunity to be heard when it purported to be giving time for a reply to come clean. All MACRA was doing at this stage, in my view, was window-dressing, so as to create a semblance of having been procedural in reaching the decision it not only threatened to reach, but in fact reached even by switching between different parts of the Act to find a penalty that was to its satisfaction. In plain language, I apprehend, this would be called a hit below the belt, as it was achieved completely contrary to all governing rules and principles.

 

On the additional accusations MACRA made against the Applicant by letter of 28th August, 2008 (Document 3 of “TB”), if I follow the letter of revocation of licence properly (Document 5 of “TB”), it does not clearly to the new accusations or feature them as undoubtedly forming part of the decision to revoke the licence. Even if they are, I believe that the age-old locus classicus case of Salomon and Salomon answers the question of natural persons who form a company being separate and distinct from the legal or juristic person that results once a company has been successfully floated. The observations of MACRA as reflected in its letter of 28th August, 2008 about politicians not being entitled to circumvent a legal prohibition by creating a limited liability company thus flies directly in the face of this venerated legal precedent. Besides this, the additional allegations having just been raised with the Applicant, and since they related to broadcasting legal provisions, such as Article 8 of the Applicant’s Broadcasting Licence on Ownership and Control, even though there was a preliminary response through the Applicant’s lawyers, there was room for MACRA to hold public hearings on the subjects it so raised under Section 54(2). If MACRA determined that the Applicant had failed to comply with the applicable terms and conditions of its licence, or the Code of Conduct, or relevant legal provisions on these subjects, even after hearing the Applicant’s representations after so notifying it in writing in terms of subsections (3) and (4) of the same Section, MACRA was next supposed to publish its findings and the reasons therefor.

 

Beyond this, per subsection (5), post-publication MACRA was further required to hear representations from the Licensee, joy Radio Limited, or from any other interested person in response to the publication, before resorting to any of the prescribed Orders, that incidentally do not involve any revocation of licence, as listed thereunder. It is, therefore, as plain as daylight to me, that if in part MACRA based its revocation of Radio Licence on the allegations it only first raised with the Applicant on 28th August, 2008, it then definitely and clearly did not follow the procedure Section 54 so elaborately lays down for it to follow in situations as the one it supposed it had at hand

 

Now, before I get to pronounce my final decision in the matter, let me deal with the allegation the Applicant additionally made in the proceedings to the effect that the decision of revocation herein was politically motivated. In fact it is through paragraphs 5 and 6 of the Supplementary Affidavit, and also through exhibit “TB12” that the Applicant made the allegation. Its claim was that prior to the revocation of licence in issue the Minister of Information and Civic Education publicly directed the Respondent to close down the Applicant’s Radio Station. I took the opportunity to listen to “TB12,” which is a compact disk that is alleged to contain the said speech. It bears the writing “Full speech of Hon. P. Kaliati on 6th June, 2008 Capital Hotel.” When I listened to this CD, however, the speech in it run for some 8 minutes only or thereabouts and then ended abruptly. In the portion I so listened to, the speech was making reference to the Media Council of Malawi having drawn up a document the Minister was hoping the media itself would not be taking injunctions against during its implementation. In that portion I heard nothing concerning instructions from the Minister to MACRA to close down Joy Radio Limited. Thus, either the recording was not as full as represented, as indeed it ended in the way I have described, or a the CD furnished was not the one the Applicant intended to furnish. Be this as it may, on the evidence made available to me on this extra allegation, I do not see enough grounds for me to conclude that the revocation of licence under consideration was politically motivated, as claimed by the Applicant.

 

All in all, in respect of the Judicial Review contested before me, the way the dispute between the parties progressed from a query for justification of the request for production of broadcast record in June, 2008 to revocation of Radio Licence on 16th October the same year, through MACRA’s highhandedness in its dealing with the Applicant during the dispute, by itself not wishing to be transparent with a simple reply, but demanding obedience of its word without question as if it were some kind of deity, and thereafter proceeding to misapply the legal provisions at its disposal to the detriment of the Applicant notwithstanding the clarity of the said provisions, I am in no doubt that the application for Judicial Review herein should succeed. I accordingly hold that the decision-making process that led to the revocation of the Radio Licence herein was flawed through and through with irregularities. In finding existence of a breach before any had occurred, in dealing with the supposed breach without regard to the correct procedure as openly displayed in the Law, and in choosing at will to freely jump from one part of the Act to another just to pick and choose what penalty to impose, I find that MACRA behaved most disgracefully, and that it not only acted ultra vires the powers the law has vested it with, but also without fairness in the sense depicted by the principles of natural justice. The ability on its part to find the Applicant guilty of non-compliance, when on the outstanding issue it is the one that owed the said Applicant an answer before next pressing for compliance, and the freedom it accorded itself to mix up legal provisions as it best pleased notwithstanding what the said provisions stood for, both amount to unreasonableness on MACRA’s part of the Wednesbury magnitude in my view.

 

In the result I grant to the Applicant both the Declarations it prayed for. By way of attending to the prayer in form 86A for further or other relief, I was seriously inclined to awarding the Applicant damages for the unjustifiable revocation of Radio Licence herein for the duration its effect was not paralysed by Orders of Stay and Injunction. I note, however, that in terms of Order 53 rule 7 of the Rules of Supreme Court 1999, even where an Applicant specifically seeks damages in a Judicial Review, as opposed to where he just asks for further or other relief, paragraph (1) of the said rule makes the award of such damages subject to paragraph (2). Incidentally paragraph (2) refers to Order 18 rule 12 of the Rules of Supreme Court, which it makes applicable to a claim for damages in these proceedings just as it is applicable to pleadings generally. It is thus on account of this technicality of pleadings that I have desisted from ordering damages as further or other relief for the Applicant in this case. There being no other suitable further or other relief I can think of granting to the Applicant, I now proceed to condemn the Respondent in the costs of these proceedings.

 

Pronounced in Open Court the 16th day of January, 2008 at Blantyre.

 

 

 

 

 

 

A.C. Chipeta

JUDGE