Pieterse v Stancom Tobacco Co.(Mw) Ltd - Matter No. 11 of 2001 (11 of 2001) [2002] MWIRC 21 (18 June 2002);






A.J. PIETERSE …………………………………………… APPLICANT





R.Zibelu Banda (Ms) Deputy Chairperson

K. Savjan SC, Counsel for the respondents

Njobvu, Counsel for the respondents

R. Kasambara, Counsel for the applicant

Drummond, assisting counsel for the applicant

E. Lora, Court clerk


Taking into consideration the importance of the respondent’s application on jurisdiction, this court granted them leave to address this court on the issue before deciding on their earlier application for an adjournment. I reserved my ruling on the adjournment to avoid waste of time in case I proceeded with an action that may end up being heard elsewhere.


The respondents objected to jurisdiction of this court on the following grounds as per amended IRC FORM 2:

1.  The Industrial Relations Court does not have jurisdiction in the matter because the primary issue i.e. the issue of rectification of contract, neither relates to employment nor is it a labour dispute.

2.  The Industrial Relations Court is not mandated to grant rectification as part of its remedies or reliefs under the constitution, the Labour Relations Act or the employment law applicable then.  

3.  The Industrial Relations Court is not the appropriate forum to determine the Applicants action because:-

(a)  By law a party seeking for rectification, for instance based on a unilateral mistake alleged to have been induced by fraud or misrepresentation as the claimant is alleging in the present case, is required to discharge a high standard of proof.

(b) The Industrial Relations Court is not bound by any rules of evidence and therefore the Respondents are likely to be prejudiced in so far as regards the admission of evidence in relation to the action for rectification.

        Counsel on both sides addressed the court on various points notably the issue of whether the applicant’s claim was one relating to employment or rectification of a contract. It was the view of counsel for the respondents that the applicant seeks rectification of a contract and that this has nothing to do with a labour dispute or employment. According to counsel for the respondents this court has no jurisdiction to rectify a contract nor to grant a remedy of rectification. The applicant’s counsel on the other hand, averred that the dispute borders on termination of contract of employment and seeks remedies in form of salary and gratuity benefits.

        Upon a careful consideration of the issues raised in relation to jurisdiction, I hereby make the following observations and findings:

1.      The Statement of Claim in FORM IRC 1 read in its entirety discloses issues of employment. The alleged dispute is described as termination of a contract of employment amounting to unfair dismissal. The reliefs sought are salary and gratuity benefits.

2.     If the court finds that there is a contract of employment between the parties, the question is whether the respondents breached it.

3.      After that finding the court will look at the remedies sought by the applicant and determine whether they fall under this court’s jurisdiction.

4      The court finds that the issue to be decided is one of employment between the applicant as employee and the respondents as employers and whether that employment was properly terminated.

5.     This court also finds that it has jurisdiction to hear and determine the issues raised in the statement of claim.

6.     Counsel for the respondents argued that the primary issue for determination is rectification of a contract. They further contend that this court has no jurisdiction over rectification of contracts. It is the view of this court that the fact that the word rectify appears in the statement of claim does not of itself make the matter one of rectification of contract. There is a difference or dispute between the applicant and the respondents on one or more terms of an alleged contract of employment. The case is for this court to hear and determine that dispute or difference. Sections 42 and 64 of the Labour Relations Act confer on this court jurisdiction over any dispute or difference between an employer and an employee as to the employment or non employment, or the terms of employment. This jurisdiction is further buttressed under sections 63 and 64 of the Employment Act.

7.     The Employment Act clearly applies to this claim in terms of section 69 thereof, which, states that the Act applies to all contracts of employment including those concluded prior to the commencement of the Act. In other words, the fact that the alleged contract was entered into in 1996 does not preclude the applicant from seeking relief under the Act if the terms of the alleged contract are inconsistent with the Act.

8.     This court therefore derives its jurisdiction not only from the Constitution of the Republic of Malawi 1995 as provided for under section 110 (2) and the Labour Relations Act 1996 as alluded to by counsel for the respondents but also from the Employment Act 2000.

A reading of the Constitution, the Labour Relations Act 1996 and the Employment Act 2000 clearly show that it is only the Industrial Relations Court that has original jurisdiction to grant the remedies sought by the applicants. The High Court has appellate jurisdiction and only on issues of law and jurisdiction (See Mary Kaunde vs. Malawi Telecommunications, Civil Cause Number 687 of 2001 (unreported)) and also see Ibrahim Makalani v. National Bank of Malawi,  Civil Cause number 1491 of 2001 (unreported). It must be pointed out that there is a contrary interpretation in Malawi Telecommunications Limited v. Malawi Post and Telecommunications Workers Union Civil Cause number 2721 of 2001 (unreported)

The intention of the legislature is very clear. It was to create a specialist court to deal with labour and employment matters. The legislature could not create a specialist court if it intended to grant concurrent jurisdiction to other courts. This jurisdiction should not be curtailed by a restrictive interpretation of what constitutes labour and employment matters.


Counsel for the respondents raised the issue of rules of procedure applied in this court and rules of evidence. His contention was based on section 71 of the Labour Relations Act, which allows this court to dispense with formalities and rules of evidence as applied in civil proceedings. The fact of the matter is that this court does and will dispense justice according to applicable law and each case is decided on its own merits. This court cannot prevent a party from demanding the required standard of proof in a case where ends of justice demand. The section referred to by counsel is merely permissive. In other words, the court is given discretion to relax rules of procedure and evidence to meet the exigency of a particular case in order to achieve justice. In fact this provision was deliberate to cater for a majority of the users of this court who will not have services of legal counsel. (See section 73 of the Labour Relations Act 1996)


It is the duty of this court like any other court to apply necessary safeguards to ensure justice and fairness in all its decisions. In fact, where the nature of the facts as raised at trial disclose or necessitate observance of higher standard of proof, neither the respondents nor the applicants could be precluded from demanding that such standard be complied with. Hence, the position espoused by counsel has no legal authority and certainly a misconstruction of the law.


Finally, the application to have this matter removed from this court on grounds of lack of jurisdiction is denied.


I allow the adjournment sought by the respondents so that they can read through the bundle of documents served on them in the afternoon of yesterday, June 17. Counsel may agree on the duration of the adjournment and the court will set down the case for hearing accordingly.

Pronounced in chambers this 18th day of June, 2002 at Limbe.

R. Zibelu Banda (Ms)