Court clerks win recruitment case against Chief Justice, Judicial Service Commission

The High Court in Zomba Registry has ruled in favour of some disgruntled employees of the Judiciary who had taken to court the Chief Justice and the Judicial Service Commission, challenging their decisions to recruit new third grade magistrates from outside the civil service.

The 16 employees, who work as court clerks of different grades in the Judiciary nationwide, represented by private practise lawyer Chancy Gondwe, argued that what the head of the country’s Judiciary, Chief Justice Andrew Nyirenda, and the commission did contravened the Malawi Public Service Commission Regulations.

They asked the court to have the manner and procedure which was adopted in the recommendation and appointment [of the new third grade magistrates] be review by the court.

The workers argued that the decision by the commission to recommend the appointment of the new third grade magistrates contravened regulation 13 (1) (a) of the Malawi Public Service Commission Regulation.

Similarly, they argued that the Chief Justice’s decision not to appoint them when they possess suitable qualifications in terms of Regulation 13 of the Malawi Public Service Commission Regulations and Section 34 (b) of the Courts Act violated their legitimate expectations as provided for under Section 43 of the country’s Constitution.

The staff stated that they were assured by their chief human resource officer that upon obtaining their diplomas in law from University of Malawi, Chancellor College, they would be considered to be third grade magistrates as per Section 13 (1) (a) of the Malawi Public Service Commission Regulations, and Section 34 (b) of the Courts Act.

In her determination, Judge Zione Ntaba said the Public Service Act is not the right law to be followed during the recruitment process and ruled that the defendants should “review the recruitment process in terms of magistrates and accordingly ensure that the legitimate expectations of the claimants are taken into consideration as directed by Section 43 of the Constitution.”

She pointed out that the Constitution of Malawi is clear that a magistrate ‘of whatever grade’ is considered a ‘judicial officer’; their appointment by the Chief Justice may only take place on the recommendation of the JSC.

“A judicial officer’s employment (appointment, promotion, suspension, remuneration etc) is regulated by the said Constitution.”

She ruled that the Chief Justice and Judicial Service Commission’s conduct in terms of the appointment of the 24 TGMs “was irregular and illegal.”

Judge Ntaba ruled that the claimants’ application for judicial review succeeds.

“Judicial review is a remedy that lies against a public body or office and it can be granted on a number of reasons for instance want or excess of jurisdiction and failure to comply with rules of natural justice to mention a few.,” said the Judge.

Lawyer Gondwe said the clerks had “legitimate expectations” that they would be recruited and the court ruling means there would be a review of that process.

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