IN THE HIGH COURT OF MALAWI
LILONGWE DISTRICT REGISTRY
CIVIL CAUSE NUMBER 407 OF 2005
THE STATE PLAINTIFF
JUDICIAL SERVICE COMMISSION RESPONDENT
EX-PARTE: MRS E L MSUSA INTERESTED PARTY
CORAM: THE HON. MR. JUSTICE L P CHIKOPA
M Chilenga of Counsel for the Interested Party
Mwangulube Senior State Counsel for the Defendant
Gonaulinji (Mr.) Court Clerk
This, strictly speaking, is a side show. In the main show the Interested Party is seeking judicial review of the Respondents decision to retire her before the mandatory retirement age for magistrates in Malawi of 70 years. The matter was set down for hearing of the substantive issues on March 31st 2006. It was not. Instead we noted that there was an application from the Respondent seeking to vacate leave for judicial review. As matters turned out we could not hear even that application. Counsel for the Interested Party was out of town. We adjourned the application to April 5th 2006. On that day there was yet another application from the Respondent to vacate leave on a ground other than the one advanced in the application adjourned on March 31st 2006. We heard both applications and dismissed them. We now give our reasons therefor.
The subject matter of this ruling is two applications brought by the Respondent herein. The first one dated March 15TH 2006 was to set aside leave to apply for judicial review on the ground that the same was sought outside the period permitted under Order 53 r4 (1) of the Rules of the Supreme Court (hereinafter called RSC).The second application was to vacate leave for judicial review granted herein on the ground of forum inconvenience. The applications were supported by separate affidavits sworn by Golden Mwangulube Senior State Counsel who appeared for the Respondent herein.
Both applications were opposed by the Interested Party. The first by an affidavit in opposition. The second it was not possible to so do because it was served on the Interested Party on the day before the date of hearing. We should be quick to thank Counsel for the Interested Party for not making a big issue of such late service but instead electing that we proceed with more important issues to wit a hearing of the two applications.
THE PARTIES ARGUMENTS
As we have said above there were two applications complete with grounds therefor. We shall consider the parties arguments separately.
The first application
The application was to the effect that leave for judicial review granted herein be set aside the same having been applied for outside the period allowed for such applications under Order 53 r4(1) of the RSC. Both in his affidavit and in his argument before this court Mr. Mwangulube reiterated that an application for judicial review has to be made promptly in any event not later that three months from the date on which the grounds for the application first arose. That in the instant case the Interested Party was retired via a letter dated October 22nd 2004 and that the application for leave was only made on 21st April 2005 which clearly fell outside the three months period hereinbefore referred to. The proper approach in the Respondents view was for the Interested Party to first seek, by way of notice, for an extension of the time within which to file the application for leave. It would have then been up to the court, after testing the reasonableness or otherwise of such reasons and also hearing the Respondent, to grant the extension of time within which to apply for leave and then if need be to grant the leave itself. Not having so proceeded the Interested Party fell into error and the leave granted herein should be vacated. Various cases were cited in support of such argument. See The State v The Attorney General ex parte General Joseph Gabriel Chimbayo Miscellaneous Cause Number 32 of 2005 (Lilongwe District Registry)hereinafter called the Generals case, Regal Bourne Ltd v East Lindsay District Council  6 Admin Law Report 102, The State v Attorney General, Mapeto Wholesalers and Faizal Latif ex parte The Registered Trustees of Gender Support Programme Civil Cause 256 of 2005 (Principal Registry) hereinafter called the Treadle Pumps case, The State v Malawi Development Corporation ex parte Nathan Mpinganjira Miscellaneous Cause Number 63 of 2003 (Principal Registry) hereinafter called the MDC case and The State v The Attorney General ex parte Charles Eliazel Banda and William Chimbalanga Miscellaneous Civil Cause Number 65 of 2005 hereinafter called the NIB case.
The second application
It was to vacate leave for judicial review on the grounds of forum inconvenience. The fancy words aside it was to the effect that the Interested Party had commenced this matter in the wrong forum. That the same could for instance have been commenced in the Industrial Relations Court (hereinafter called IRC) the Interested Partys claim being an employment issue.
In the supporting affidavit and the arguments in support of the application Counsel for the Respondent insisted that the rights if any at stake herein were private rights. Relating to the termination of the Interested Partys employment as a magistrate. That such matters should be dealt with by the IRC seeing as it was purely a matter of employment law. It was prayed therefore that the leave previously granted herein be vacated and the Interested Party allowed to seek alternative remedies. The MDC and Treadle Pumps cases referred to above were also cited in support.
The Interested Party
Like we have said before the Interested Party did file an affidavit in opposition to the first application. She was however unable to do so in respect of the second application the same having been served on her late. It was her argument however that the purpose of Order 53 r 4 is not to keep out matters from the courts on technicalities merely because they have not complied with the time limits. Rather it is to keep out frivolous or hopeless applications. So that if the court determines as it did in this case that there is a case for judicial review the same will not be kept out merely because time limitations were not complied with. She also pointed out that the leave herein was granted at an inter parties hearing. The Respondent was duly served but decided not to attend and contest the grant or otherwise of the leave. It is now late in the day to move backwards. In any event it is not as if the Respondent is claiming that whatever delay occurred herein has caused it inconvenience or hardship. The cases of The State v Blantyre City Council exparte Joel Chilenga Miscellaneous Civil Cause No 13 of 1998 (Principal Registry) and R v Ashford  2 All E R 327 were cited.
Regarding forum inconvenience the Interested Party said this matter is not about private rights or the legality or otherwise of her retirement. It is about the mandate of the Judicial Service Commission which is a creature of statute tasked with the appointment and removal of magistrates and making recommendations for the appointment of judges. She made reference to the celebrated case of Ridge v Baldwin  2 All E R 66 itself an employment case that had so much to do with the rise and rise of judicial review. She prayed therefore that the two applications be dismissed and the matter allowed to proceed.
On the facts before us it does not seem in doubt that the date on which process to seek leave was filed with the court was out of the three months referred to in Order 53 r4 RSC. Further it seems to us equally clear that having been late the Interested Party did not make a separate application for extension of the time within which to seek leave of the court for judicial review. She proceeded as if she was within the three months mentioned above. One of the questions that need to be asked and answered in our view is whether the above lapses in procedure should automatically result in the vacation of the leave herein. Put slightly differently, and perhaps a touch widely, whether as a general rule such lapses as pointed above must automatically result in the vacation of a grant of leave for judicial review.
The other question that must be answered is whether the matter before us is one fit for judicial review. Whether it is in the appropriate forum. Or whether, as the Respondent argues it is fit for the Industrial Relations Court.
We start with the latter question first.
Retirement of the interested party: is it amenable to judicial review?
If we may the respondent argues that this is a labor/employment matter. The interested party is seeking a remedy for having been, in her view, wrongfully retired from her position as a magistrate by the Respondent. That essentially the Interested Party is here to enforce private rights but has conveniently dressed them up as public rights with a view to qualifying for judicial review. The MDC case was cited as authority.
We have had occasion to peruse this case in which the case of The State vs The Southern Region Water Board ex parte Richard Willard Jones Chikoja Miscellaneous Civil Cause 47 of 2003(Principal Registry) [hereinafter called Chikojas case] featured highly. The court in that case proceeding on the basis of Chikojas case reiterated the widely, and we should add, the correct view that judicial review is about reviewing the decision making process of public bodies or authorities. That judicial review is only to be used in proceedings where a person wants to establish that a decision of a person or body exercising public power(s) infringes rights which are entitled to protection under public law. The court was generally of the view that judicial review will not be appropriate in all employment cases. The reason being that the courts would soon replace management of companies or the boards of companies. The fact that the employer was a public body in its view did not make whatever decision it made in respect of an employees employment public and therefore amenable to judicial review. This is the view that the respondent herein wants us to take in respect of the interested partys claim or application for judicial review.
Firstly we do not, we should state at the outset, subscribe to the view that all employment matters cannot properly be the subject of judicial review. We would think that position unduly restrictive/narrow. Actually our view is that the courts should be free to make a decision as they see fit in the circumstances of a particular case. So that if a case can and does qualify for judicial review it should not be thrown away merely because of some generalization to the effect that all employment cases are not amenable to judicial review. That would, we think, cause more harm than good as many a deserving case would be denied judicial review when they would otherwise qualify. Thus the position in so far as we are concerned is that there should be left that little bit of space into which we can fit, as and when merited, a case dealing with employment/labor matters.
But more than that and speaking in terms of this case it is clear to us that this matter goes beyond the employment/retirement of the Interested Party as a magistrate. It goes to the tenure of judicial officers in the magisterial cadre. In what circumstances can they be removed from office? What procedures must be followed? What grounds suffice justify the removal by force retirement or otherwise of serving magistrate? What disciplinary steps are available? These, in our thinking, are questions of public interest. The public is interested, and properly so, in knowing the tenure of their magistrates as it has the capacity to impact positively or otherwise on their independence specifically and generally on their performance as magistrates. The way to look at this case therefore is to emphasize the public aspects of the claim and regard the Interested Party only as a beneficiary of whatever opinion the courts might render on the tenure, disciplining etc of magistrates in Malawi. It would be inadvisable in our view to disqualify such a case from judicial review just because the issues have been brought through the medium of an employment case. Like we have said above we are averse to taking an unduly restrictive position on judicial review.
We also think that there is another aspect to this matter that would benefit from judicial review. That of, inter alia, political rights and freedoms. It is trite knowledge that our Constitution in section 32 provides that every person shall have the right to freedom of association which includes the right to form associations and also the right not to be compelled to join an association (which must also include in our view the right not to be compelled to leave an association). Section 40 of the same Constitution gives every person the right to inter alia form, join and to participate in the activities of a political party; to campaign for a political party or political cause; to participate in peaceful political activity intended to influence the composition and politics of the Government and to freely make political choices. From the facts before us it is clear that the Respondents decision to retire the Interested Party had a lot, if not everything, to do with her purported exercise of these rights and freedoms. To what extent are magistrates allowed or limited in their exercise of these rights and freedoms by virtue of them being magistrates? It would be a pity if we were to throw away this opportunity to inform magistrates and the Respondents future conduct just because the court will in the course of so doing decide in the propriety or otherwise of the Interested Partys retirement which is essentially an employment/labor matter. And it should not be forgotten that we are here talking about a constitutional body exercising constitutional powers that affect peoples Chapter IV rights. That if anything should tilt the balance in favor of making this case one of those few employment cases where judicial review should be permitted.
We are not unaware of the concerns raised in both the MDC and Chikoja cases: that if we allowed employment/labor cases into the arena of judicial review we would, so to speak, open flood gates. Any crafty litigant would then style their papers in such a way as to make them look like public law issues when in effect they are private law matters. That might be true. But we doubt whether such an allegation can successfully be made in respect of this our case. Our view and conclusion is that this matter is amenable for judicial review the fact that it touches on employment/labor issues notwithstanding. In any event I doubt whether we are in saying the above advocating for a wholesale admission of employment/labor cases for judicial review. Rather we are advocating against a wholesale shut out as that might leave even those few deserving cases. We would rather the courts still have the discretion which cases went for judicial review and which ones did not.
Is the High Court the proper forum?
It was argued on behalf of the Respondent that this matter could as well go to the Industrial Relations Court which has in their view exclusive original jurisdiction in labor matters. It was further stated that allowing the Interested Party audience in this court would deny her a tier of appeal she should at law have which in effect is tantamount to denial of access to justice. That allowing cases like the present one into the High Court when we have the IRC would render the IRC redundant while at the same time needlessly clogging the High Court. The MDC case was cited.
The Respondent must have gotten the wrong end of both the Industrial Relations Act (hereinafter called the Act) and case law. The Act does not grant the IRC exclusive original jurisdiction. Technically therefore the High Court can hear a labor matter if it so wished. This was made clear in the MDC case citing the case of Kaunde v Malawi Telecommunications Limited Civil Cause No 687 of 2001 (Principal Registry). What we understand the court to have said is that the High Court should be slow to take up a labor or labor related matter if the same can be handled by the IRC. We would have had no problems in agreeing with the Respondent, if this matter was simply about the retirement of the Interested Party, that it should go to the IRC. But in so far as it touches on the tenure, independence of judicial officers i.e. magistrates and their exercise of various constitutional rights and freedoms our view is that the IRC is not best placed to adjudicate on that. The High Court is. Our view therefore remains that this matter is not before the wrong forum in the circumstances.
Should leave for judicial review is set aside for lapses?
The Respondent says yes. It went so far as to say that it is a matter of general principle that where there was delay and no separate application is made to extend the period within which to apply for leave any leave granted should automatically be vacated. Various authorities, to whom we have made reference above, were cited.
The Interested Party is of a different view. We think a consideration of the i.e. cited cases and the RSC would be of great help.
Order 53 r 4 of the RSC could not be clearer. It says that the application for leave should be made promptly and in any event within three months from the date when the grounds for the application arose unless the court considers that there is good reason for extending the period within which the application shall be made. [Our emphasis].
The cases cited above were of the unanimous view that where an applicant for leave is late the proper procedure is to first make an application for extension of the time within which to seek leave. If and when the extension is granted one then goes on to apply for leave. Does that however mean that leave granted in any case in which the above procedure was not followed should automatically be vacated?
We also thought it advisable to read the above together with Order 53 r 14/4. We noted of course that none of the cases cited by the respondent commented on this. The learned editors were of the view that whereas it is open for a Respondent where leave has been granted ex parte to apply for such grant to be set aside such applications should be discouraged and should only be made where the respondent can show that the substantive application will clearly fail. The question being where does this put leave granted inter parties. Considering the foregoing with the opinion of the Court of Appeal in England in the case of R v Secretary of State for the Home Department ex parte Rukshanda Begun  C O D 107 we think it rather obvious that the emphasis in deciding whether or not to vacate leave for whatever reason should be whether or not it is clear in the Judges mind that there is a point for further investigation. If the answer be yes then the matter should proceed for the substantive hearing with relatively few, if any, applications from the respondent to set aside the grant of leave.
Let us now look at the decided cases cited by the respondent and the RSC.
The NIB case
The applicants brought an application for leave five (5) months after the cause of action arose. The Respondent objected to such grant. Two reasons were advanced. Firstly that the application was out of time and secondly that the matter was in the wrong forum. That being an employment matter it was amenable to the Industrial Relations Court than judicial review. In the course of considering the late application the court made the following remarks which were seized upon by the respondent herein:
clearly Order 53 r4 envisages that where the application for leave to apply for judicial review is made late, it shall be preceded by an application for extension of time where notice shall be given to the respondent; no doubt such notice would contain reasons for the delay to enable the respondent to respond to the application and to disclose to court what inconvenience might be caused by the belated application where such might be the case.
Much as the correctness of the above cannot be faulted we would think that the question before that court and this one are different. The issue in the NIB Case was for a grant of leave. The complications were that it, the application, was firstly out of time and secondly that there was no separate application to extend time. In dismissing the application the court carefully spoke about the issues before it. In paragraph three of page 5 it said, clearly in our view, that the matter before it was not one for extension of time but for leave. It therefore only spoke about extension of time in passing. As orbiter so to speak. Its reason for refusing to grant leave therefore was that the application, being made five months after the event was out of time. It never volunteered an opinion as to what it would have done if it were faced with a scenario like ours i.e. where leave had been granted out of time and without a separate application on notice for extension of time. As we have said above this was because such issue was not on the agenda. It is, with respect, not entirely correct in our humble view to conclude that the NIB Case answered the kind of question we have herein namely is any leave granted out of time minus a separate application for extension for time automatically to be vacated? At most, and again we say this most respectfully, the NIB Case provided guidance on what is to be done if having ran out of time a party still wants to apply for leave for judicial review. We doubt therefore whether this case, aside from what we say above, is of great assistance in resolving the question before us.
The Treadle Pumps case
The Interested Party obtained leave for judicial review after the period for so doing had expired. Much like in this case. After the Interested Party has sought and acquired a date of hearing the respondents applied, by way of preliminary objections, to have leave vacated and the case dismissed. Various grounds were advanced. Prominent amongst them was the fact that the parties were the wrong parties, that Order 53 r 4 RSC had been flouted in that the application for leave was made after three months and without a request for an extension for time within which to ask for such leave, that the applicant had not complied with the courts orders in respect of affidavits, the filing of skeleton arguments, the lodging of a court bundle etc.
While considering Order 53 r 4 the court made remarks similar, if not identical, to those made in the NIB case. After a full consideration of the issues it thought the matter deserved outright dismissal. The court found for the respondents in all the issues raised. It was thus found that apart from the breach of Order 53 r 4 RSC, the respondents were the wrong parties, that procedures relating to judicial review had not been followed and also that the applicant had not fully complied to the letter with the courts order granting leave. It was in those circumstances that the court thought the matter deserved outright dismissal. Those circumstances are not entirely the case herein. We are being asked to vacate/dismiss the matter simply because of noncompliance with Order 53 r 4 RSC abovementioned. To that extent we would again want to believe that the considerations obtaining in the Treadle Pumps case are not the same as the ones we have herein. In other words whereas the issue of failure to request for an extension of time might have been in issue there is doubt whether or not such failure was the ratio decidendi of the courts decision or whether it was but in addition to the other lapses of procedure referred to above. Our view of that case actually, if we may, is that the outright dismissal was on the totality of the lapses in procedure committed by the Interested Party. The question that was left unanswered, but which we must answer in this case, is whether the court would have dismissed the case if the lapse had only been the failure to apply for an extension. For that reason our view is that whereas we appreciate the cases guidance on the need to apply for an extension and the other procedural issues raised therein it does not provide too much guidance on the exact question before us.
The Generals case
The applicant sought judicial review of his dismissal form the Malawi Defense Force. Unfortunately the three months had expired. He brought an application seeking an extension of time within which to bring the application for leave. After reiterating the need to comply with Order 53 r 4 RSC the court dismissed the application. There were no good reasons to justify the delay. The effect on a leave granted in the absence of failure to seek an extension of time did not arise except, in our view, by way of orbiter only. The reason is because it was not in issue. This case cannot therefore have a direct bearing on the question before us.
The MDC case
The applicant had been suspended from his employment with MDC. He sought and got leave to have his suspension judicially reviewed. The respondent sought to have such leave vacated on inter alia grounds that; the time for obtaining leave had expired and no extension had been granted none having been sought; that the matter was not amenable for judicial review; and that the case should have been in the Industrial Relations Court i.e. that the case was in the wrong forum. The court, correctly and as was the case in the cases cited above, reiterated the correct position in terms of Order 53 r 4 RSC. Specifically the court said that an application for extension of time should be made separately and not buried within an application to apply for leave for judicial review. It did however, specifically again, refuse to set aside the leave on that basis alone. It was of the view that leave obtained in such fashion as is the case herein can only be complained of at the hearing of the substantial issues. It cited Order 53 r 1-14/31. It is only at that stage, in its opinion, that a court would, if the situation so warranted, refuse any reliefs sought on the ground that the delays complained of or the absence of an order extending the time for getting leave would cause hardship to or is prejudicial to the rights of the respondent.
It is interesting to note that the court in the Generals case had somewhat similar views. On page 5 it said:
The court will, however, normally postpone consideration of hardship, prejudice and detriment to good administration until the full hearing unless in the clearest of cases.
It cited the case of Caswell v Dairy Produce Quota Tribunal for England and Wales  2 AC 738 as guidance.
It seems to us from a reading of the above cases and the RSC that it is not correct that the court will automatically vacate any leave granted in the absence of an application, by way of notice, to extend the time within which to seek leave for judicial review. The correct position, in our view, is that it is in the discretion of the court whether or not to vacate leave merely because Order 53 r 4 RSC was not complied with. The court is more likely to do that where there are other transgressions by the applicant which clearly was the case in all the cases referred to us by the respondent herein. Or where it is clear even at that early stage that there is no case to go for judicial review. The approach to be taken, we think, must be dictated by the circumstances of a particular case. So that at the end of the day it is up to the particular court seized of the matter to make up its mind whether or not in the circumstances it should vacate leave merely because there was no separate application to extend the time within which to apply for the said leave. In the instant case the question therefore becomes:
Should we vacate leave for judicial review due to lack of an application and grant of an extension for time within which to seek leave for judicial review?
A look at the history of this matter might be more than useful.
The application for leave for judicial review was initially set to be heard ex parte as is the norm. But because the court was aware of the tendency to challenge such leave especially when granted ex parte the court in its discretion, and hoping thereby to save time and treasury, decided that the application be heard inter parties. On the appointed day, October 28th 2005, the Respondent did not turn up despite having clearly been served with process. Leave was accordingly granted in its absence. Given simultaneous with the leave were directions on how the matter was to proceed henceforth. The substantive issues were subsequently allocated the 28th of February 2006 as the date for hearing. On that date the Respondent was not ready. It had not filed affidavits in opposition. The court was asked to adjourn the matter so as to allow them to do the needful. The date of 31st of March 2006 was then set for hearing of the substantive issues. It was on this date that we came across the first application to set aside leave for judicial review. For reasons beyond everybodys control we could not hear the application or the substantial issues on this date. We adjourned the matters to April 5th 2006.
It is clear from the history that the Respondent contributed a great deal to the source of its gripe herein. If it had handled this matter with the seriousness and professionalism it clearly deserves the matter of a lack of extension should have been dealt with on the day that leave was dealt with. Because the Respondent deemed it not fit to attend court that did not happen. We doubt whether in those circumstances the Respondent can then come to court with clean hands and seek to take advantage of the Interested Partys noncompliance with Order 53 r 4 RSC. Or indeed whether they can come to court and literally ambush the Interested Party with the kind of applications the subject of this ruling. Having taken or promised to take appropriate steps to proceed with the matter to trial we feel the Respondent should not be allowed to in our view obstruct the course of justice. The correct way forward for the Respondent if they are still smarting from the delays and lack of strict adherence to procedure is to address the court about the matter at the hearing of the substantive issues. It would then be to the court to see how best to deal with the matter including, if need be, the withholding of some reliefs sought.
On a different level maybe we think that parties should appreciate that procedures are not there to frustrate litigation. Rather to facilitate the smooth and just disposal thereof. To allow the Respondent to succeed with their applications in the present circumstances would have that effect. We would be slow to go down that path. Further we think that Order 2 RSC should be had in mind. An irregularity should not be allowed to nullify proceedings unless it occasions injustice to the other party or is incapable of being recompensed by way of costs. We think when all is said and done nobody has complained about injustice or some other injury herein. Just plain noncompliance.
The long and short of it all is that the leave for judicial review will not be vacated. The matter will instead proceed to trial. As we said on April 5th 2006 we expected the parties hereto to within 14 days from the said 5th April 2006 to attend the District Registrar to obtain a date of hearing.
These are in the discretion of the court. In the exercise of such discretion the costs will be in the cause.
Dated this April 20, 2006 at Mzuzu.
L P Chikopa