Mvaya v Malawi Telecommunication Ltd (IRC 174 o 20011 ) (NULL) [2007] MWIRC 77 (31 December 2007);

Share
Download: 

IN THE INDUSTRIAL RELATIONS COURT OF MALAWI


PRINCIPAL REGISTRY


MATTER NO. IRC 174 OF 2001


BETWEEN


MVAYA…...…………..…………………………………… ……………...APPLICANT


-and-

MALAWI TELECOMMUNICATIONMS LTD...……..……………..RESPONDENT


CORAM: R. Zibelu Banda, Chairperson
Chisanga; Of Counsel for the Applicant
Malijani; of Counsel for the Respondent
Nyabanga; Official Interpreter

JUDGMENT

      1. Appearance of Counsel who also sits at the Industrial Relations Court as a member panelist

  1. Whether there is an appearance of bias

Background

Mr. Malijani who appeared as Counsel for the respondent also being in the employee of the respondent company as legal counsel is a member panelist of this court appointed under section 66 of the Labour Relations Act. By virtue of his appointment Mr. Malijani became an administrative law judge defined as; anyone, whether or not a lawyer, who is an officer of a judicial system and who performs judicial functions, including an officer such as a magistrate, court commissioner or special master or referee1. Such being the case the question before the court was whether Mr. Malijani could also appear in the proceedings at the Industrial Relations Court as a party or to represent a party? The fear is whether there is to be likelihood of bias Mr. Malijani being a member of the court and having to appear before his fellow members?


Mr. Chisanga of counsel representing the applicant did not have any objection in Mr. Malijani representing the respondent in the matter. In fact there is no legal authority preventing a judge or an administrative law judge from seeking legal redress in any court of law. What rules of natural justice would prevent is where a member panelist or judge sat as a judge in his own cause, because one cannot judge his/her own case.



Finding

There would be no appearance of bias in a matter where a member panelist appeared before the IRC unless he was sitting as a judge. A member panelist may appear personally or in a representative capacity at the IRC as long as he/she is not sitting in the case as an administrative law judge. Mr. Malijani of counsel is free to represent the respondent in the IRC.


This decision applies to all cases involving member panelists or judicial officers where they might be required to appear before the Industrial Relations Court (IRC) as a party or representing a party.


Any party aggrieved by this decision has the right of appeal to the High Court within 30 days of this decision. Appeal lies only on matters of law and jurisdiction and not facts: Section 65 (2) of the Labour Relations Act.


Pronounced this 31st day of December 2007 at BLANTYRE.



Rachel Zibelu Banda.

CHAIRPERSON.



1 Dilweg, et al; Modern Judicial Ethics (based on the Model Code of Judicial Conduct [1990]; The National Judicial College, 1992, Reno, USA.