THE HIGH COURT OF MALAWI
CAUSE NO. 686 OF 2001
TRUSTEES OF DEVELOPMENT OF MALAWI TRADERS
HON. JUSTICE A.C.
Mr Kasambara, of
Counsel for the Plaintiff
Mr Mwala, of Counsel
for the Defendant
Mr Balakasi, Official
By Originating Summons dated the
15th day of March, 2001 the plaintiff raised a number of questions
for this court to determine.
Inter alia, the plaintiff seeks
severance pay for termination of employment and a finding that the
said termination was wrongful
or unlawful, as well as a determination
that as such the plaintiff is entitled to compensation. The
Originating Summons is
supported by an affidavit.
defendant has filed an affidavit in opposition to the plaintiffs
claim. The affidavit has been sworn by the defendants
Administrative officer. There are annexed to it eleven
exhibits. This affidavit disputes the plaintiffs claims.
I have had full benefit of arguments from both the parties via their
learned Counsel in the matter.
I can venture into an analysis of the arguments advanced herein, it
strikes me that I need to address two points that have
exercised my mind in this case. Looking at the issues raised in
the Originating Summons it is clear that what exists
parties herein is a labour dispute. Under Section 110(2) of the
Constitution original jurisdiction for such and
like matters lies in
the Industrial Relations Court. There is no indication that any
attempt has been made to petition that
court before bringing the
complaint to this court. Much as this court enjoys unlimited
original jurisdiction in any civil or
criminal proceedings per
Section 108(1) of the Constitution, I apprehend that procedurally
this court should not assume original
jurisdiction where that is
exercisable by any of its subordinate courts including the Industrial
next noted that all arguments in this matter have proceeded on the
basis of the Employment Act, 2000 (re. Act No. 6 of 2000).
termination of employment in issue is reflected in a letter dated
16th August, 2000, being exhibit HLM1, and the effective
of termination is the same 16th day of August, 2000.
employment Act came into operation on 1st September, 2000 (See Govt
Notice No. 47 of 2000). There is no indication that
the Act was
meant to have retrospective effect and where no such retrospectively
is conferred an Act operates from the day it comes
in force onwards.
It is to be particularly borne in mind that severance pay which
features highly in this case is a creature
of this new Act and that
it did not exist under the Employment Act (Cap...........) That was
in force prior to 1st September, 2000.
It appears to follow in
my view that the Originating Summons herein is premised on law that
was not yet in force at the time of termination
and that some of the
remedies it alludes to were then not legally available.
think it will be wrong for me to go deeper than I have already so
done in this case. I take the view that this matter should
first have been filed in the Industrial Relations Court before being
brought to this court. I also take the view that the case
premised on wrong choice of forum and wrong choice of law I dismiss
the present Originating Summons and I do so with costs.
in Chambers this 4th day of May, 2001