Phiri v Admarc (MATTER NO. 22 OF 2001) (NULL) [2002] MWIRC 29 (07 May 2002);




MATTER NO. 22 OF 2001


S.S. PHIRI……………………………………………………APPLICANT




Applicant, present (unrepresented)

Respondent – present, represented by Limbe of Counsel

Mrs. Mzumara – Official Interpreter


This matter came for a full hearing today. It is a matter in which the Applicant has brought up the matter against the Respondent on a complaint of unfair dismissal. The Respondent have denied the trade dispute.

Before the matter commenced for hearing, Counsel for the Respondent raised a preliminary objection. In his objection, Counsel raised the issue of res judicata. He told the Court that the Applicant had brought up the matter before the Office of the Ombudsman. On the 28th of February 2002 a determination was made by the Ombudsman whereby the Applicant’s complaint was dismissed. The Respondent’ Counsel therefore is of the view that this matter is re judicata and that it can only go to the High Court of Malawi on judicial review.

On his side, the Applicant said that he had indeed lodged a complaint with the Ombudsman’s Office in March 2001. He waited up to September 2001 when he was advised by his colleagues to lodge the matter with the Industrial Relations Court. That he did. As the matter was with the Industrial Relations Court the Ombudsman called him for hearing which took place in February 2002. Later on he got a determination through the post office which found him rather late. As he was contemplating what to do next, he also got a phone message that he was wanted by the Court today for a hearing. He is therefore wondering as to how he can pursue the judicial review with the High Court of Malawi in view of the expiry in the 21 days within which he was supposed to apply to the High Court for judicial review.

Let me first thank Counsel for bringing these developments to the knowledge of the Court. When this matter was filed with the Court on the 25th of September 2001, the Applicant had indicated on form 1 (the Applicant’s Statement) that the matter had just been brought before the Office of the Ombudsman in March 2001. The impression created was that that was just an attempt to sort out the dispute between the two parties.

This Court is aware that the Office of the Ombudsman is not a Court of Law. Thus matters determined by that office cannot be strictly called res judicata in this Court. But whilst that is the case, this Court is also aware that the Office of the Ombudsman has been given a mandate to investigate complaints where there is no practicable remedy in a Court of Law. This matter having been filed before the Ombudsman, the Ombudsman found it fit to investigate and a public enquiry was thereafter instituted. A determination was made. This Court does recognize the role the Office of the Ombudsman plays in protecting the human rights of the citizens of this country, some of which rights are labour rights of which this Court has got the mandate to adjudicate upon.

I have carefully listened to Counsel’s objection as to why this matter has to be discontinued in this Court. This Court is of the view that since the matter was already brought before the Office of the Ombudsman and since a determination was already made on the 28th of February 2002, the next step that the Applicant would take if aggrieved or dissatisfied by the determination handed over by the Ombudsman is to apply for judicial review before the High Court. I am aware that the Applicant has already expressed his anxiety in relation to the already expired 21 days within which he was supposed to apply for judicial review. But I have taken note of his mitigation that he got the determination through the post office rather late. I am also aware that the Applicant is unrepresented and may not have clearly understood the implication of the 21 days period. The High Court, where this judicial review will take place is likely to have a human rights approach in considering whether it should construe the 21 days period in a very rigid way.

I therefore advise that the Applicant should proceed to apply for judicial review before the High Court. This ruling shall also be forwarded to the High Court Registrar.

As for this case in the Industrial Relations Court, I do order that it should be treated as a closed chapter unless the High Court otherwise directs.

MADE this 7th day of May 2002 at the Industrial Relations Court, Lilongwe.

M.C.C. Mkandawire