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Liberating Malawi's Administrative Justice Jurisprudence from Its Common Law Shackles

Published online by Cambridge University Press:  03 March 2011

Danwood Mzikenge Chirwa
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Abstract

The 1994 Malawian Constitution is unique in that it, among other things, recognizes administrative justice as a fundamental right and articulates the notion of constitutional supremacy. This right and the idea of constitutional supremacy have important implications for Malawi's administrative law, which was hitherto based on the common law inherited from Britain. This article highlights the difficulties that Malawian courts have faced in reconciling the right to administrative justice as protected under the new constitution with the common law. In doing so, it offers some insights into what the constitutionalization of administrative justice means for Malawian administrative law. It is argued that the constitution has altered the basis and grounds for judicial review so fundamentally that the Malawian legal system's marriage to the English common law can be regarded as having irretrievably broken down as far as administrative law is concerned.

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Type
Research Article
Information
Journal of African Law , Volume 55 , Issue 1 , April 2011, pp. 105 - 127
Copyright
Copyright © School of Oriental and African Studies 2011

INTRODUCTION

In early 1994, Malawi adopted a new constitution which came into provisional force on 18 May that year and became fully operational 12 months later. The adoption of the new constitution marked an end to a 30 year dictatorial rule by Dr Hastings Kamuzu Banda. The 1966 constitution, under which Banda's regime operated, enshrined “unity, loyalty, obedience and discipline” as the cornerstones of government.Footnote 1 The regime operated under a cloak of secrecy, undermined the established mechanisms of accountability (such as judicial and parliamentary controls) and routinely used extra-judicial means to punish (perceived) political opponents and critics of the regime. The 1966 constitution did not expressly empower the courts to review any laws or conduct of the state for conformity with the constitution. It is therefore not surprising that the whole dictatorial era generated little public law jurisprudence.Footnote 2

Unlike the 1966 constitution, the 1994 constitution recognizes several fundamental principles, including the rule of law,Footnote 3 legality,Footnote 4 openness, transparency, accountable government and democracy.Footnote 5 Furthermore, in section 43, it expressly guarantees the right of every person to just administrative justice.

However, Malawian courts have not fully grasped the extent to which section 43 has revolutionized Malawi's administrative law. Furthermore, a cloud of uncertainty looms over the meaning of “administrative action”, the application of section 43 to employment cases and private actors, the relationship between common law-based judicial review and section 43, and the meaning of the new grounds for judicial review. As will be discovered in this article, much of this confusion lies in the blind allegiance of the Malawian legal profession to the received law of Britain. It is therefore the overarching aim of this article to unlock the revolutionary potential of section 43 of the Malawian Constitution and identify the ways in which the new law of administrative justice in Malawi has departed from its common law origins.

THE EFFECT OF SECTION 43

Section 43 of the constitution provides:

“Every person shall have the right to:

  1. (a) lawful and procedurally fair administrative action, which is justifiable in relation to reasons given where his or her rights, freedoms, legitimate expectations or interests are affected or threatened; and

  2. (b) be furnished with reasons in writing for administrative action where his or her rights, freedoms, legitimate expectations or interests if those interests are known [sic].”

Mkandawire J was the first to observe, in the case of In the Matter of the Constitution of the Republic of Malawi and In the Matter of the Removal of MacWilliam Lunguzi,Footnote 6 that this section did nothing more than restate the principles of natural justice.Footnote 7 The Malawi Supreme Court of Appeal (MSCA) approved this statement on appeal in the same case.Footnote 8 In Chawani v Attorney General, Tambala JA, writing for the whole MSCA, reiterated: “In our view, section 43 of the constitution is simply an entrenchment of the principle of natural justice which requires that no person shall be condemned without being heard. The section has of course, stretched the principle a bit to include the requirement to give reasons which must support an administrative action.”Footnote 9

These decisions underestimate the significance of section 43. It is argued that this section has transformed Malawian administrative law in at least three fundamental ways. The first pertains to the basis of judicial review. As mentioned earlier, the 1966 constitution did not expressly vest the powers of review in the courts. There was therefore no clear basis on which to challenge decisions of public authorities. Courts, following the practice and jurisprudence of English courts, had to appeal to their inherent powers in order to find that basis.Footnote 10 This was obviously an insecure foundation for judicial review because, without express authority, courts lacked the legitimacy and confidence to question decisions of other branches of government, in the context of a dictatorial regime. Even when the courts finally found the courage to invoke the procedure of judicial review (during the transition to democracy between 1992 and 1994), they operated within the confines of the ultra vires doctrine.Footnote 11 This meant that their task in judicial review consisted merely in asking whether a public authority had exceeded his or her powers. The grounds for review consisted of the less controversial grounds of judicial review borrowed from the English common law, namely, “illegality”, “irrationality” and “procedural impropriety”.Footnote 12

In a marked departure from the 1966 constitution, section 43 of the 1994 constitution provides for an explicit basis for judicial review and its grounds. This section is reinforced by section 108(2), which vests in the High Court original jurisdiction to review any law and action or decision of government. These provisions mean that Malawian courts no longer have to rely on the fragile premise of “inherent jurisdiction” in order to justify their authority in judicial review proceedings: that authority now emanates directly from the constitution. Sections 43 and 108(2) have made it a core business of the courts to keep the executive and administrators in check.

These provisions also mean that the power of judicial review does not originate in Order 53 of the Rules of the Supreme Court of England (Order 53). Section 43 is the new organizing framework for judicial review, to which Order 53 is subservient. The common law rules expressed under this order are undoubtedly still valid for the procedure of judicial review (subject to the dictates of the new constitution and any relevant Malawian statutory law), but the substantive law of judicial review has been altered fundamentally by the new constitution. The substantive common law reflected in Order 53 is now of secondary importance only: as an aid to interpreting the provisions of section 43.Footnote 13 The persistent practice of relying on this order for both the procedure of judicial review and the substantive law on administrative justice is therefore deeply regrettable.

Secondly, now that the new constitution has replaced the concept of parliamentary supremacy with that of constitutional supremacy,Footnote 14 the idea of ultra vires as a conceptual basis for judicial review is of limited application. As noted above, ultra vires, within the context of parliamentary supremacy, meant that the role of courts in judicial review was limited to ensuring that administrators acted within the powers granted to them by the omni-competent Parliament. Under a system of constitutional supremacy, by contrast, courts have the obligation to ensure that administrators and other public power holders function in accordance with the laws enacted by the legislature as well as with the ethos, values, principles and edicts espoused by the constitution.Footnote 15

Thirdly, section 43 of the constitution provides for new and more expansive grounds for review than was the case under the common law. Contrary to the view that “section 43 does nothing more than restate principles of natural justice that a man shall not be condemned unheard”, it also recognizes the right to “lawful” administrative action, a notion that carries a broader meaning than that attached to the concept of “illegality” at the common law. As noted above, under the common law, the question of illegality resolved itself into whether an authority acted without or in excess of its jurisdiction while lawfulness under the constitution extends beyond compliance with laws enacted by Parliament to requiring acting in accordance with the constitution. For example, under the new constitutional framework there is a limit to the discretionary powers and legislative powers which Parliament can confer on administrators.Footnote 16 An administrator acting under wide discretionary powers may thus be found to be acting unlawfully. Furthermore, section 43 recognizes the ground of procedural fairness, also a concept which is broader in scope that the rules of natural justice.Footnote 17 The latter, which subdivide into the right to be heard and the rule against bias, have traditionally applied to a class of administrative functions commonly described as quasi-judicial functions.Footnote 18 The application of procedural fairness spans a wider spectrum of functions including those of non-adjudicative character,Footnote 19 such as decisions concerning the determination of rights.Footnote 20

In addition to lawfulness and procedural fairness, section 43 recognizes “justification” as a new ground for review. As will be shown later, “administrative action which is justifiable in relation to reasons given” is of broader import than the ground of irrationality which the common law espoused.Footnote 21 Fourthly, section 43 provides for the ground of “reasons in writing”. This too, is a new ground for review which was not available under the common law.

ADMINISTRATIVE ACTION

Significance of the term

It would be exceedingly ill-fitting to proceed with an examination of the meaning of the term “administrative action” without first establishing the significance of the term. “Administrative action” is the only path to section 43. One cannot rely on the safeguards in section 43 without demonstrating that the decision, action or inaction being challenged constitutes administrative action.Footnote 22

Thus far, courts have paid little attention to this term because they have tended to rely on Order 53 as the basis for judicial review, for which there is no need to show that the action being challenged constitutes administrative action. In Chisa v Attorney General,Footnote 23 for example, Mwaungulu J, relying on Order 53, stated: “Judicial review as a remedy in public law is governed by the same principles that governed the remedies it was intended to accentuate. First, judicial review lies against persons or bodies with judicial, quasi-judicial and administrative functions. Judicial review lies against inferior courts or tribunals and any person or body performing public functions.”Footnote 24 The second principle, he argued, is that judicial review is a remedy that vindicates a public, not private, right.Footnote 25 A number of cases have followed this approach.Footnote 26

As is clear from the dictum above, Order 53 reflects an institutional approach to judicial review, which focuses exclusively on the functionary as opposed to the function when determining the availability of judicial review. Under the new constitutional framework, there is a unified basis on which judicial review can be invoked: the power being exercised must qualify as “administrative action”. While the nature of the functionary might assist in determining whether an action amounts to administrative action, it is now crucial to focus on the nature of the function itself.

The meaning of administrative action

Defining “administrative action” is not an easy task. This term has caused controversy wherever it has been employed and no single universally acceptable definition has yet been found.Footnote 27 For example, the South African Constitutional Court has on a number of occasions had an opportunity to interpret the term, but it has not yet arrived at an exhaustive definition.Footnote 28 An attempt to give it a comprehensive meaning through legislation has also not proved to be very successful.Footnote 29

In Malawi, the position has been complicated by the fact that courts have not appreciated the central role of section 43 in the country's new administrative law and, as a result, have tended to sidestep the question. Consequently, what we have in Malawi is a corpus of confused and incongruous jurisprudence that, for the most part, treats section 43 as a surplus requirement to Order 53. As argued earlier, these legal provisions do not provide for separate regimes of administrative justice. The principal source of administrative law and justice in Malawi now lies in section 43, read with section 108(2) of the constitution. Order 53 is supported by these sections.

As a prelude to understanding the meaning of this term, it must be pointed out that administrative justice forms part of the larger territory of public law. It deals with the exercise of public functions. Essentially therefore, “administrative action” denotes a decision taken or a failure to take a decision while exercising a public function. For example, a decision of the ombudsman, created under section 120 of the constitution with powers to investigate instances of maladministration, constitutes administrative action.Footnote 30 In Kalumo v Attorney General,Footnote 31 it was held that the decision of the army commander forcibly retiring an officer whose employment was governed by the Army (Regular Force) Officers' Regulations was reviewable under section 43.

Public powers are predominantly exercised by state organs. However, in order to gain a deeper understanding of “administrative action”, one must avoid over-reliance on an institutional approach to administrative law, as public powers are increasingly also exercised by private actors. Furthermore, even the legislature and the judiciary may also exercise administrative powers which can qualify as administrative action. The institutional approach is manifest in Chawani v Attorney General, where the MSCA stated (per Tambala JA) that section 34 “applies to situations where there is an abuse [by an] executive arm of government and no more” and that this section is “intended to provide protection to persons from potential arbitrary executive action”.Footnote 32 In a pre-1994 case of Kapile and Others v Council of the University of Malawi,Footnote 33 Msosa J (as she then was) concluded from the mere fact that the respondent was a public corporation that it was bound by the principles of natural justice.Footnote 34 Although Tambala J (as he then was) in Nkhoma and Others v Council of the University of Malawi endorsed this approach, he blended it with a functional approach by inferring from the objects of the respondent that it had “a public duty to offer, within [its] financial, material and other constraints, to deserving students university education of a high standard”.Footnote 35 Based on this conclusion, he held that the respondent was bound to adhere to the rules of natural justice when dispensing discipline to its students.

It is important to reiterate that, while the nature of the body that is exercising a power may give a hint as to what qualifies as administrative action, this factor alone is not decisive. For example, a state institution, like a private party, can also exercise private powers. This point was aptly underscored by Mwaungulu J in the post-1994 case of Chisa v Attorney General.Footnote 36 Here, the applicant challenged by way of judicial review the decision of the respondent to detain her motor vehicle. This decision was made following the applicant's failure to abide by her contractual obligations to pay her insurance premiums and instalments on her motor car. It was held that, by detaining the vehicle, the government was acting privately in terms of its contractual rights. According to Mwaungulu J: “In law, Government is a legal entity. It can enter into legal transactions with and like a private citizen. It has duties, contractual and tortuous, like private citizens. [Such a case] is not in the realm of public law. It is in the realm of private law. The public law remedies are only available when Government is meddling with public law rights.”Footnote 37

However, in the SGS Malawi case, the same judge held, incorrectly it is argued, that the government's rejection of the applicant's tender was not amenable to judicial review. The applicant had been contracted to provide pre-shipment inspection services for the purposes of assessing import tax. When this contract was nearing its end, the government made a fresh call for tenders, which resulted in the contract being awarded to another company. On the question of whether the applicants were entitled to leave to apply for judicial review, the court considered whether the government's decision to award the contract to another private service provider and not the applicant was justiciable as a judicial review matter. While conceding that pre-shipment inspections had a public element, the court held nevertheless that there was “no principle of public law on which to compel the Government to offer the contract to any of the tenderers”.Footnote 38

It is argued that the court answered the wrong question in this case. The pertinent issue was whether the decision of the government to award or reject a tender concerning such an important public service as pre-shipment services for tax assessment purposes amounted to administrative action. As was rightly pointed out, the court could not, under the appearance of judicial review, enter into the merits of deciding who should have been awarded the contract, but it was entitled to consider whether the tender process was lawful, procedurally fair or justifiable within the meaning of section 43 of the constitution. Government tendering processes have increasingly attracted public interest and provoked calls for greater accountability, transparency and openness.Footnote 39 Although the tender process in this particular case was not conducted within a statutory scheme, it entailed enough public elements to bring it within the confines of administrative action and, therefore, section 43.

The flip-side of the principle that public bodies may engage in private conduct is that private actors may also exercise public powers. This was succinctly illustrated by the case of Chioza v Board of Governors of Marymount Secondary School.Footnote 40 In this case, the applicant challenged by way of judicial review the decision of the respondent expelling her from the school, which was privately owned. Mtambo J (as he then was), held that: “while the governors may be performing some private law duties in the running of the school, I think that they fall within the public domain when they perform such functions as the admission or expulsion of the students from the school and so render their decisions in that respect susceptible to judicial review”.Footnote 41

This case underscores the fact that what is critical to the determination of what constitutes administrative action is not only the nature of the functionary but also the nature of the function in issue. In determining the nature of the function, guidance may be sought from the source of the function. For example, in Chisa v Attorney General, Mwaungulu J stated that the “existence of a contract is an indication of the existence of private rights”.Footnote 42 On the other hand, powers emanating from statute and subsidiary legislation will invariably give rise to administrative action.Footnote 43

However, certain acts of private actors may constitute administrative action in the absence of any specific legislation giving them specific public powers.Footnote 44 The Chioza case is a good example.Footnote 45 In this case, as the respondent was providing secondary education, which is traditionally considered a public service, the exercise of disciplinary powers over school learners was arguably a concomitant offshoot of those powers and therefore correctly adjudged to be administrative action. Other instances in which the conduct of private actors has been held to constitute administrative action have included where the private actor wields enormous powers of a coercive kind in a given sector, or exercises powers akin to those exercised by the state, powers which have public law consequences or powers that are of public concern.Footnote 46

Not all public functions constitute administrative action. In particular, the core powers of the judiciary (interpretation of the law), the legislature (law making) and the executive (policy making) are not subject to section 43. For instance, in R v JZU Tembo & Others,Footnote 47 the High Court held that the issuance of a certificate by the director of public prosecutions in terms of section 289 of the Criminal Procedure and Evidence Code so that a magistrate can summarily, without undertaking a preliminary inquiry as to the existence of a prima facie case, commit an accused to trial in the High Court did not amount to administrative action. Such action was a function that “normally would have been performed by a judicial officer”.Footnote 48 On the other hand, the court held that the decision by the minister of justice requiring certain crimes to be tried by a judge sitting alone constituted administrative action. This decision must be contrasted with that reached in State v Lilongwe Chief Resident Magistrates' Court and Others, ex parte Dr Cassim Chilumpha Footnote 49 where it was held that the issuing of summons by a magistrate court to a person to appear before it is subject to judicial review. It is doubted whether the latter decision represents a correct interpretation of administrative action, because the issuing of summons appears to be an ordinary judicial function of a magistrate. If the issuance of a summons were considered administrative action and not judicial action, the rigorous requirements of section 43 would render it impossible for these courts to conduct criminal and civil proceedings efficiently and within a reasonable time.

In Attorney General v MCP and Others, the MSCA held, correctly, that section 43 of the constitution “applies only to administrative acts and not legislative acts”.Footnote 50 Thus, the court declined to apply this section to the challenge concerning the enactment of the Press Trust (Reconstruction) Act 1995. The gist of this case is that original legislative powers conferred on the legislature under sections 8 and 48 of the constitution do not constitute administrative action.Footnote 51 However, certain acts of the legislature are open to review under section 43. It has been held, for example, that the decision of the speaker of the National Assembly declaring the seat of a member of Parliament vacant, amounts to administrative action and is therefore susceptible to judicial review.Footnote 52

As is the case with typical legislative and judicial powers, core executive powers do not constitute administrative action. In Mkandawire and Others v Attorney General,Footnote 53 the Alliance for Democracy challenged the decision of the president to appoint two ministers from the party and his refusal to relieve other ministers appointed from the party of their duties after the party had terminated its coalition agreement with the ruling United Democratic Front. The High Court held that the power of the president to appoint ministers was not reviewable under section 43. It stated:

“The power to appoint ministers is one of the special powers whose source can be traced to prerogative powers. These were powers originally exercised by the King or Queen of England. They include the power to make treaties, the power relating to the defence of the realm, prerogative of mercy, the granting of honours and decorations and the dissolution of parliament. These powers including the power to appoint ministers cannot be the subject of judicial review.”Footnote 54

The prerogative powers referred to in this dictum are now to be found in sections 89(1) and 94(1) of the constitution. They do not give rise to administrative action.Footnote 55

A similar decision was reached in Aleck Kwame Phiri and Others v Minister of State in the President's Office and Attorney General.Footnote 56 In this case, the applicants sought an order asking the High Court to quash several decisions of the minister of state in the president's office, including the decisions to: abolish the National Celebrations Council; to create the National Celebrations Unit in the office of the president and cabinet; and to transfer the statutory powers of the National Celebrations Council to the National Celebrations Unit. In dismissing the application on this point, Tembo J stated:

“it is the prerogative of the Cabinet or indeed any minister responsible for the administration of any department of the Government, where it is considered expedient so to do, to create any administrative unit … for the purpose of better enabling the Cabinet, or the minister responsible, [to] carry out any public duty or perform any public function or exercise any public power of the Government. That prerogative is derived from the constitutional powers of the President of the Republic regarding the administration of the affairs of the state and, in particular, the creation and running of government departments. Except where the Constitution or any legislation otherwise so expressly provides regarding the creation of any public institution, organization or body, there are no general limitations, in law, on the exercise by the President of the Republic of his constitutional powers to create and run any department of Government for the carrying out of any particular function of the Government.”Footnote 57

Apart from the prerogative powers of the president and the broad policy powers conferred on the executive in section 9 of the constitution, other acts of the executive and public functionaries are administrative in nature. For example, in Attorney General v Lunguzi and Another,Footnote 58 the president of Malawi verbally informed the then inspector general of police of his removal from office and of his new appointment as a diplomat. The MSCA held that this was a case to which section 43 was applicable. The president's decision was quashed on the ground that he had given the respondent neither a chance to be heard before the decision was taken nor the reasons for the decision. Similarly, in Felix M Mchawi v Minister of Education, Science and Technology,Footnote 59 the respondent suspended the applicant, a teacher at Stella Maris Secondary School, from his employment. It was held that this decision was reviewable in terms of section 43 of the constitution. In Peter von Knips v Attorney General,Footnote 60 the decision by the Ministry of Home Affairs declaring the applicant a prohibited immigrant and deporting him in terms of section 4(1)(h) of the Immigration ActFootnote 61 was held to be reviewable under section 43.

This discussion underscores the centrality of “administrative action” to section 43. While courts still maintain a trichotomy between judicial, executive and legislative powers, all public powers are potential candidates for judicial review under section 43 provided they qualify as administrative action. The powers that are exempt from this section are the core functions of the legislature, the judiciary and the executive.Footnote 62 Does this mean that the public powers that do not qualify as administrative action are not reviewable at all? It is to this question that this article now turns.

Constitutional legality

Malawian courts have not systematically distinguished between two types of review created by the constitution. The first is judicial review in the constitutional sense and the second is judicial review in the administrative law sense. The former is based on the constitution as a whole and asks whether public power has been exercised in accordance with the provisions of the constitution (constitutional legality).Footnote 63 The latter poses the question of whether administrative action is consistent with the requirements stipulated in section 43. Judicial review under section 43 only deals with the category of public powers which amount to administrative action. Thus, public powers which originate in the constitution but do not qualify as administrative action may still be reviewed on the ground of constitutional legality.

For example, in the case of In the Matter of Presidential Reference of a Dispute of a Constitutional Nature under Sections 89(1)(h) and 86(2) of the Constitution and In the Matter of Impeachment Procedures under Standing Order 84,Footnote 64 the Constitutional Court conceded that the promulgation of the impeachment procedures adopted by the National Assembly in October 2005 was not reviewable as an administrative action under section 43. Nevertheless, it held that these procedures were reviewable to determine whether they were consistent with the constitution, especially section 86(2) which requires that impeachment procedures must be in “full accord with the principles of natural justice”.

In Attorney General v SG Masauli,Footnote 65 the National Assembly passed a resolution suspending the salaries and allowances of members of Parliament and state funding to political parties involved in the boycott of the National Assembly. This decision was found to be ultra vires, illegal and unconstitutional. This case was not decided under the provisions of section 43 probably because the passing of the resolution by the National Assembly was considered a legislative act and therefore not reviewable under this section. Nevertheless, the resolution was reviewed through the concept of constitutional legality.

In the Aleck Kwame Phiri case,Footnote 66 although the High Court held that the president's power to create or run a government department was a policy-laden decision unsuited to judicial review, it noted that such powers would be reviewable in instances where the constitution or any legislation made express provisions regarding the creation of any such public institution, organization or body. In Chirwa v State,Footnote 67 the applicant was dismissed from his position as town clerk of the City of Blantyre following a directive from the government. Subsequently, the president passed a proclamation which purported to insulate the city and the government from suits for unlawful dismissal. It was held that the proclamation was unconstitutional as it was made in excess of the president's powers and in violation of the applicant's right of access to courts.

It is important to recognize the difference between these two types of review. Judicial review under section 43 is too intensive for certain types of public powers, such as policy making powers of the executive and legislative powers, which are constitutionally entrusted to specific branches of government within the context of a separation of powers. Section 43 requires administrative action to be procedurally fair, lawful and justifiable. It is nonsensical, for example, to require the president to adhere to all these requirements when exercising his prerogative powers under section 89(1) of the constitution. The doctrine of constitutional legality allows the court to undertake a less probing review of such powers. In Attorney General v SG Masauli, for example, the MSCA restricted itself to the legality or constitutionality of the resolution.Footnote 68 It held that the National Assembly had no power to withhold salaries of members of Parliament. Furthermore, it held that the resolution was unlawful because it had retrospective effect. In South Africa, where this concept has been developed more meticulously, it has been held that all public powers must be exercised in good faithFootnote 69 and not irrationally or arbitrarily.Footnote 70 Effectively, the concept of constitutional legality serves as the minimum level of legality to which all public powers must conform, without upsetting the balance of power implicit in the doctrine of the separation of powers.

Section 43 and employment cases

One area in which section 43 has been invoked most, but with conflicting outcomes, is employment. On one side is a body of jurisprudence that suggests that section 43 is applicable to employment contracts.Footnote 71 The common denominator of this strand of cases is that they fail to answer the question whether termination of, or dismissal or suspension from, employment amounts to administrative action. These cases tend to imply the right to be heard in employment contexts without proffering any clear basis. For example, in the Mbewe case,Footnote 72 the High Court stated: “It seems to me that the right to be heard created under section 43 of the constitution is one which, where circumstances so apply, ought to be enjoyed by all concerned, irrespective of the fact that in any particular case the rights being claimed are prescribed by statute or under a contract between parties.”Footnote 73

The court added that section 43, read with sections 5, 10(2) and 11(1)(2)(b) of the constitution, implies “a right for any male or female employee to be heard where any conditions of employment do not make provision for a right to be heard under their provisions for conduct and discipline”.Footnote 74 In this case, the employment of the applicant, a driver at Blantyre Adventist Hospital, was terminated on the ground of misconduct without hearing him. The court assumed that section 43 was applicable to this case without first deciding whether the termination in this case constituted administrative action.

In Kalinda v Limbe Leaf Tobacco Ltd, the applicant's employment was also terminated on the ground of misconduct without hearing him. The High Court held, rather startlingly,Footnote 75 that the principles of natural justice entrenched in section 43 do not only apply “against persons responsible for executive or administrative action” but also “apply widely in public and private law”. According to the court:

“Even without section 43, therefore, the court would import natural justice principles in an employment contract. These principles are part of the general law. They are therefore subservient to and derive from the Constitution. It is anomalous to suggest that the Constitution, the fundamental law, entrenches laws made under it. Natural justice principles reflect the fundamental law, the Constitution, which, in many parts, reflects due process.”Footnote 76

These cases display a slipshod approach to section 43. Although they are influenced by a sanguine need to protect employees, who often find themselves in a weak bargaining position, the constitution has sufficient provisions,Footnote 77 buttressed by special legislation,Footnote 78 aimed at protecting employees. It is through these that one can find an express legal basis for requiring a hearing before one can be dismissed from work.Footnote 79 Section 43 of the constitution applies to administrative action only, and the only concern of administrative action is the exercise of public powers. This is a right whose nature militates against unguarded direct horizontal application. Private actors exercising public powers are, of course, amenable to section 43. As has been argued earlier, there is also a limited category of private powers which may be subject to this section. These include powers which, due to their public consequences or the public interest they generate, don the public outfit and gain the status of administrative action. The section cannot simply be extended to private conduct. If we are to loosen the noose around administrative action as the cases cited above do, the concept would escape from its leash, dragging the courts into a minefield of private powers and rendering it practically impossible to draw the bounds of its application. This fear was highlighted by Chimasula J in State v Southern Regional Water Board, ex parte Richard WJ Chikoja,Footnote 80 where he cautioned against allowing the remedy of judicial review to be invoked in typical employment cases.

The correct interpretation of section 43, as regards its application to employment cases, is articulated in State v Malawi Development Corporation, ex parte Nathan Mpinganjira.Footnote 81 In this case, Kapanda J stated:

“I am of the view that the Department of Statutory Corporations did not exercise public power when it decided to suspend the Applicant so as to warrant the reviewing, by this court, of the said decision. Indeed, the decision of the Respondent is not an administrative one which is subject to review in judicial review proceedings. In my opinion it is only an action (decision) in the exercise of public power that could be termed an administrative action (or decision) [that falls] within the provisions of Section 43 of the Constitution.”Footnote 82

There are a number of employment cases to which section 43 was correctly applied. For example, in Chihana v Council of the University of Malawi,Footnote 83 the respondent had a contractual right to terminate the applicant's employment by giving her three months' notice or pay in lieu of such notice. However, statute XVII of the University Statutes provided that the procedure for discontinuing such an appointment had to allow for the right of appeal to the Council of the University. The High Court held that the termination of the applicant's employment, after she had refused to resign upon the request of the registrar of the university, was not one simply based on her contract. Rather, this particular employment contract was regulated by statute and could not have been terminated without giving the applicant reasons and an opportunity to be heard by the council. In Kalumo v Attorney General, Brigadier Kalumo was forcibly retired by an army commander contrary to the requirements of the Army (Regular Force) Officers' Regulations.Footnote 84 The High Court held that this decision was subject to judicial review. In Attorney General v Lunguzi and Another,Footnote 85 section 43 of the constitution was clearly applicable because the office of the inspector general of police is a creature of the constitutionFootnote 86 and a person holding that office can only be removed on the grounds prescribed under section 154(4) of the constitution.Footnote 87

In State v Judicial Service Commission, ex parte EL Msusa,Footnote 88 Chikopa J rightly observed that the question of the tenure of judicial officers was one which attracted huge public interest. Thus, the decision of the Judicial Service Commission to retire the applicant from serving as a magistrate was subject to judicial review under section 43.Footnote 89 The Mchawi case is an interesting one since the employment contract in this particular case was not regulated by statute.Footnote 90 However, the decision to dismiss the applicant in this case was not made by his employer, but a stranger to the contract, the minister of education, who made the decision believing that he had the legal authority to do so. The same can be said of the case of Bongwe and Others v Ministry of Education, where the applicant's jobs were terminated by the Ministry of Education allegedly in the “public interest”.Footnote 91

A common feature of all these cases is that the employment contracts in issue were wholly or partially regulated by statute or terminated by an authority in the belief that he or she had legal authority to do so.Footnote 92 In conclusion, contracts of employment that are not regulated by statute (excluding the Employment Act and the Labour Relations Act) cannot give rise to administrative action.

GROUNDS FOR REVIEW

As has already been pointed out, the constitution has introduced lawfulness, procedural fairness, justifiability, and the giving of reasons as the four main grounds for judicial review. One can therefore no longer plead illegality, irrationality or procedural impropriety as a ground for judicial review in Malawi. The following sections dwell on the grounds of procedural fairness and justifiability to demonstrate how the courts have interpreted them and to point out the ways in which these grounds differ from their common law equivalents.

Procedural fairness

Section 43 of the constitution recognizes procedural fairness as one of the four grounds for judicial review. As observed earlier, Malawian courts have regarded section 43 to be a mere codification of the rules of natural justice which subdivide into the twin principles of bias and a hearing.

In Leonard Zodetsa and Others v Council of the University of Malawi,Footnote 93 Mtegha J stated that the rule against bias is “so ingrained in our law that it would be folly to ignore it”. In this case, a member of a disciplinary tribunal was one of the people against whom the alleged acts of indiscipline were committed. It was held that, although the member might not actually be biased, he was an interested party and therefore not competent to participate in the disciplinary proceedings. In Attorney General v Mapopa Chipeta,Footnote 94 Banda CJ held that “it is a serious dereliction of duty for a judge or magistrate to preside over a case in which he has pecuniary or proprietary interest”.

But no clarity has yet emerged on the applicable test for bias. In the Mapopa Chipeta case,Footnote 95 the MSCA applied the test of a real likelihood of bias in a situation dealing with the recusal of judicial officers. An earlier MSCA decision in Sumuka Enterprises Ltd v Registered Trustees of African Businessmen's Association (Malawi) Footnote 96 adopted the test of a reasonable suspicion of bias. Later cases have tended to follow the latter test.Footnote 97 Thus, in State v President of Malawi and Others, for example, the Constitutional Court held that a decision will not be allowed to stand “if there is an appearance of bias or a reasonable suspicion of bias”.Footnote 98

In the Impeachment Procedures case,Footnote 99 the Constitutional Court identified three exceptions to the rule against bias. First, the rule against bias will not apply where the person against whom bias is alleged “is the only person empowered to act”. Secondly, the rule will not apply where a statute expressly allows an administrator or judge to sit in a matter in which he has an interest. Thirdly, the rule will not apply where the affected person waives it. These exceptions, the court was quick to note, ought to be construed restrictively in order to ensure that affected persons are guaranteed procedural fairness.

As has been noted above, the second major aspect of natural justice is the right to a hearing. Most of the cases on procedural fairness in Malawi have turned on this element.Footnote 100 It has been held, for example, that a hearing must take place before the decision is madeFootnote 101 unless the circumstances do not permit and the affected person is subsequently accorded a full hearing.Footnote 102

In Kapile and Others v Council of the University of Malawi, the High Court identified two elements of the right to a hearing: the right to know the charges one is facing and the right to be given an opportunity to be heard.Footnote 103 A fuller definition of this right was explained in the Mbewe case:

“In that respect, the law can briefly be stated to be that the right to be heard carries with it a right [of] the accused person to know the case which is made against him. The accused person must, thus, know what evidence has been given and what statements have been made affecting him. He must then be given a fair opportunity to correct or contradict them. The judge, or whoever has to adjudicate, must not hear or receive representations from one side behind the back of the other.”Footnote 104

The principles of natural justice discussed above have largely been applied to adjudicative decisions or to quasi-judicial proceedings affecting specific individuals and small numbers of individuals whose rights have been adversely affected or threatened by a particular decision. The rules of natural justice, at least in Malawi, have rarely been applied to determination cases, or cases where no existing rights are threatened or affected, but new rights must be determined, such as licensing or tender decisions. As pointed out earlier, procedural fairness is a concept of wider application. It can be used in public decision making which affects large numbers of people or the general public, such as in public inquiries (for example commissions) and the process of enacting delegated legislation.Footnote 105 These will normally be decisions which do not threaten an existing right of a particular individual but affect the rights and interests of the general public. Such decisions may require the use of different procedures from those associated with the rules of natural justice normally applicable in the adjudicative context. They may include notice and comment procedures, negotiated rule making and public inquiries. These procedures are aimed at facilitating the participation of large numbers of people in public decision making. Although this broader notion of procedural fairness is envisaged by section 43 of the constitution, it is yet to find full expression in Malawian administrative law.

Justifiable reasons

As noted above, section 43(a) of the constitution also guarantees the right of every person to administrative action “which is justifiable in relation to reasons given”. This is a novel ground for review. The common law knew the ground of “irrationality”. The idea of justifiability is a most controversial ground because it compels courts to enter into the merits of decisions rather than simply consider the procedural aspects of decision making. This ground for review is therefore often criticized because it blurs the distinction between review and appeal, which is essential to respecting the separation of powers.

One way in which the common law sought to placate concerns around this ground for review was by using the term “irrationality”, which meant that review would be permitted only if the decision is not rationally connected to the purpose for which it was taken or the evidence on which it was based. Another way is by using the amorphous benchmark called “Wednesbury reasonableness”. This standard of review asked whether the decision was “so outrageous in its defiance of accepted moral standards that no reasonable person who had applied his mind to the question to be decided could have arrived at” it.Footnote 106 Another strand of this benchmark was called “symptomatic reasonableness”; this asked whether the decision was so unreasonable as to point to the existence of another ground for review such as bad faith, failure to apply the mind, bias or impropriety.Footnote 107 The aim of these principles was to limit merit-based judicial review.

The drafters of the Malawian Constitution followed their South African counterparts in dropping the ground of “irrationality” in favour of the new and untried ground of “justifiability”.Footnote 108 However, unlike South African courts,Footnote 109 Malawian courts have not yet defined this term, opting instead to use “Wednesbury reasonableness”.Footnote 110 Curiously, in some cases, while the courts expressly refer to “Wednesbury reasonableness”, they do not actually apply this standard of review. In Peter von Knips v Attorney General, for example, the High Court concluded from the mere fact that the Ministry of Home Affairs had taken into account extraneous factors and ignored relevant considerations when making a deportation order against the applicant that the decision was unreasonable.Footnote 111 The court did not ask whether the decision was so “grossly unreasonable that no reasonable person would have come to it”. Neither did the High Court in the pre-1994 case of Du Chisiza v Minister of Education, where it cited the Wednesbury standard but, nevertheless, applied a more searching standard of review.Footnote 112 The minister of education had banned drama and other forms of entertainment conducted by outsiders in public education institutions. The reason given for the ban was that a crush programme was needed as a remedial measure for the temporary closure of some schools caused by water shortages. However, it was held that the ban would have been valid had it only concerned affected schools. As it applied to all public schools, it was held to be unreasonable. In so holding, the court was in fact using the proportionality analysis: that less restrictive means should have been adopted by the minister than a total ban of entertainment.

There appears to be no real difference between the phrase “justifiable in relation to reasons given” and “reasonableness”.Footnote 113 To “justify” in common parlance means to rationalize. It follows that section 42(b) embodies the rationality inquiry. This inquiry requires that there must be a connection between the ends and means: between the information before the administrator and the conclusion he or she draws, the reasons given for the decision and the decision itself or its stated objectives or purposes.Footnote 114 However, the term “justifiable in relation to reasons given” means more than mere rationality; it also points to a requirement that good reasons should be given for a decision. The mere existence of a rational connection between the ends and means will not suffice. This suggests that proportionality is an essential element of section 43(a) of the constitution. Proportionality is a higher level of enquiry that demands that the decision must not only be rational but also balanced, necessary and suitable to achieve the administrator's objectives and not impose a heavy burden on certain individuals.Footnote 115 The trouble with the proportionality inquiry is that it tends to tug the courts deep into the merits of decision making.Footnote 116 The proportionality inquiry is particularly relevant to administrative action which affects constitutional rights or involves a penalty. According to Craig, the affected person in such a case will not be challenging the decision itself but the severity of the penalty imposed in relation to the breach at hand.Footnote 117

It can therefore be seen that the constitution has introduced a more rigorous ground for review concerning the reasonableness of administrative action. The ground of irrationality under the common law entailed the less intrusive standard of rationality in decision making while the ground of justifiability entails the proportionality inquiry in appropriate cases. While there is an intrinsic danger in the courts impeaching the merits of the decisions of administrative authorities, the constitution has ushered in a new era in which public decisions ought to be justified in terms of lawfulness, procedural fairness and the reasons given, rationality and, where relevant, the proportionality of the decision.

CONCLUSION

The 1994 Malawian Constitution introduced fundamental changes to Malawi's administrative law, and its conceptual foundation and grounds for judicial review. Courts now have express powers to review any law, act or conduct of government. The doctrine of constitutional supremacy, not parliamentary supremacy, guides judicial review and the new grounds of review are lawfulness, procedural fairness, the giving of reasons and justifiability. These grounds offer litigants more avenues for challenging the exercise of public powers than was the case under the common law. The source of administrative law is the constitution, not Order 53 of the Rules of the Supreme Court of England. The relevance of the common law is now limited to informing the interpretation of the constitution.

Thus, in order for a person to apply for judicial review, he or she has to rely on section 43 of the constitution and prove that the impugned conduct constitutes administrative action. The case law discussed in this article demonstrates that Malawian courts have not fully grasped the extent to which the constitution has altered the country's administrative law. As a consequence, the full potential of the right to administrative justice remains untapped.

Footnotes

Ibid
Ibid
Ibid
Ibid
Ibid

References

1 See sec 2(1)(i) of the 1966 constitution.

2 See Nzunda, MS “The quickening of judicial control of administrative action in Malawi 1992–1994” in Phiri, KM and Ross, KR (eds) Democratization in Malawi: A Stocktaking (1998, CLAIM) 283Google Scholar.

3 1994 constitution, sec 12(vi).

4 Id, sec 12(ii).

5 Id, sec 12(iii).

6 [1994] 18 MLR 72.

7 This dictum has been reiterated in a number of other judgments. See for example: Mbewe v Registered Trustees of Blantyre Adventist Hospital [1997] 20(1) MLR 403 at 416–17; State v Attorney General, ex parte Abdul Pillane constitutional case no 6 of 2005 (unreported) (judgment of Mkandawire J).

8 Attorney General v Lunguzi and Another [1996] 19 MLR 8 at 11.

9 MCSA civil appeal no 18 of 2000 (unreported).

10 In the Botswana case of State v Eugene Moyo and Another civil cause no 6 of 1988 (unreported), Hallchurch J defined inherent powers as “those powers reasonably necessary for the Administration of Justice and … powers over and beyond those explicitly granted in the Constitution”: quoted in Nsereko, DDNConstitutional Law in Botswana (2002, Pula Press) at 306Google Scholar.

11 See for example: Mhango and Others v Council of the University of Malawi [1993] 16(2) MLR 605; Taulo and Others v Attorney General and Circle Plumbing Ltd civil cause no 152 of 1993 (unreported); Buliyani v Malawi Book Service [1994] 17 MLR 24. For a discussion of the limits of ultra vires as a basis for judicial review, see Cane, PAn Introduction to Administrative Law (1996, Clarendon Press) at 348–52Google Scholar; Breitenbach, A “The justification for judicial review” (1992) 8 South African Journal on Human Rights 512Google Scholar.

12 However, courts have continued to consider these as the grounds for judicial review in Malawi. See for example Mobile Malawi Ltd v MACRA civil cause no 1365 of 2005 (unreported); State v Attorney General, ex parte Abdul Pillane, above at note 7 (especially the judgments of Potani J and Mkandawire J); State v Rigtone Nzima and Malawi Electoral Commission misc civil cause no 11 of 2004 (unreported); Fayaz Ibrahim v State and Commissioner General of MRA misc civil cause no 164 of 2003 (unreported); Burnet OM Mkandawire v State and Secretary for Housing misc civil cause no 148 of 2003 (unreported).

13 For comparative jurisprudence, see Pharmaceutical Manufacturers Association of SA: In re: ex parte President of the Republic of South Africa 2000 (2) SA 674 (CC) at para 33.

14 See secs 4, 5, 8 and 48(2) of the constitution.

15 See further discussion under the section headed “constitutional legality” below.

16 See for example Malawi Law Society and Others v State and Others misc civil cause no 78 of 2002 (unreported); Mkandawire and Others v Attorney General [1997] 20(2) MLR 1 at 11.

17 The case of Ridge v Baldwin [1964] AC 40 is credited with abolishing the application of natural justice rules based on a classification of functions, while the introduction of the broader notion of the duty to act fairly is ascribed to the case of In re HK (An Infant) [1967] 2 QB 617.

18 Craig, PPAdministrative Law (2003, Sweet & Maxwell) at 409Google Scholar; Hoexter, CThe New Constitutional and Administrative Law (2002, Juta & Company Ltd) at 190 and 206Google Scholar.

19 Ibid.

20 Determination decisions relate to applications for a new right to be granted, such as licensing decisions, tender awards, or social security or insurance eligibility decisions. See Mureinik, E “Reconsidering review: Participation and accountability” (1993) Acta Juridica 35 at 36Google Scholar.

21 See Carephone (Pty) Ltd v Marcus NO 1998 (11) BLLR 1093 (LAC) at para 32; Roman v Williams NO 1998 (1) SA 270 (C).

22 State v Malawi Development Corporation, ex parte Nathan Mpinganjira misc civil cause no 63 of 2003 (unreported); R v JZU Tembo and Others criminal case no 2 of 1997 (unreported).

23 [1996] 19 MLR 80.

24 Id at 87.

25 Id at 88.

26 See also In the Matter of the Ministry of Finance, ex parte SGS Malawi Ltd misc civil application no 40 of 2003 (unreported); DDP v Lilongwe Chief Resident Magistrate's Court, ex parte Dr Cassim Chilumpha misc civil cause no 315 of 2005 (unreported); State v The President and Others, ex parte Dr Cassim Chilumpha misc civil cause no 22 of 2006 (unreported); Rigtone Nzima case, above at note 12.

27 In Germany, the concept of “administrative act” has been used since the early 19th century. Initially, it was understood as an “authoritative pronouncement of the administration which in an individual case determines the rights of a subject”. Its current definition, as reflected in sec 35 of the Law of Administrative Procedure of 1976, reads: “Administrative act is every order, decision, or other sovereign measure taken by an authority for the regulation of a particular case in the sphere of public law and directed at immediate external legal consequences”. See Singh, MPGerman Administrative Law in Common Law Perspective (1985, Springer-Verlag) at 32–40Google Scholar. In Australia, sec 3 of the Administrative Decisions (Judicial Review) Act 1977 provides that a reviewable decision is one which is “of an administrative character proposed to be made, or required to be made, as the case may be … under an enactment”; see Douglas, RDouglas and Jones's Administrative Law (2002, The Federation Press) at 337–43Google Scholar.

28 See for example President of the RSA v SARFU (1999) 10 BCLR 1059 (CC); Fedsure Life Assurance v Greater Transitional Metropolitan Council 1998 (12) BCLR 1458 (CC); New Clicks South Africa (Pty) Ltd v Shabalala-Msimang NO 2005 (2) SA 530 (C); Sidumo and Another v Rustenburg Platinum Mines Ltd and Others 2007 (12) BLLR 1097 (CC).

29 See Hoexter, C “‘Administrative action’ in the courts” (2006) Acta Juridica 303Google Scholar.

30 See for example Malawi Broadcasting Corporation v Ombudsman misc civil cause no 53 of 1999 (unreported). See also Air Malawi Ltd v Ombudsman MSCA civil appeal no 1 of 2000 (unreported).

31 [1995] 18(2) MLR 669.

32 Above at note 9.

33 Misc application no 47 of 1992 (unreported).

34 An approach that looks to the functionary rather than to the function is also reflected in Fayaz Ibrahim v State and Commissioner General of MRA misc civil cause no 164 of 2003 (unreported).

35 [1993] 16(2) MLR 666 at 673.

36 Above at note 23. This was a proper case to be decided on the meaning of administrative action, but the court proceeded to determine it on the basis of Order 53, even though the principles it enunciated are valid for the meaning of this term.

37 Id at 91.

38 Above at note 26.

39 See for example Umfolozi Transport (Edms) Bpk v Minister van Vervoer [1997] 2 B All SA 548 (SCA); Transnet Ltd v Goodman Brothers (Pty) Ltd 2001 (1) SA 853 (SCA); Logbo Properties CC v Bedderson NO 2003 (2) SA 460 (SCA); R v Legal Aid Board, ex parte Donn & Co [1996] 3 All ER 1.

40 [1996] 19 MLR 109.

41 Id at 111. For a similar view, see Mangani v Trustees of Malamulo School of Medical Sciences civil cause no 356 of 1992 (unreported).

42 Above at note 23 at 91.

43 R v Panel on Take-overs and Mergers, ex parte Datafin Plc [1987] QB 815 at 847 paras A–B (per Lloyd LJ).

44 Examples include the Datafin case, id at 826 para C.

45 Above at note 40. See also Sumaili and Others v Michiru View Secondary School civil cause no 2702 of 1998 (unreported).

46 See for example: R v Advertising Standards Authority, ex parte The Insurance Services plc [1990] COD 42; Bank of Scotland v Investment Management Regulatory Organisation Ltd 1989 SLT 432; R v Financial Intermediaries Managers and Brokers Regulatory Association, ex parte Cochrane [1990] COD 33; R v BBC and ITC, ex parte Referendum Party [1997] COD 459; Aston Cantlow, Wilmcote and Billesley Parochial Church Council v Wallbank [2001] 3 WLR 1323; Dawnlaan Beleggings (Edms) Bpk v Johannesburg Stock Exchange 1983 (3) SA 344 (W); Coetzee v Comitis 2001 (1) SA 1254 (C); AAA Investments (Pty) Ltd v Micro Finance Regulatory Council 2006 (11) BCLR 1255 (CC).

47 Criminal application no 1 of 1995 (unreported).

48 Sec 1(ff) of South Africa's Promotion of Administrative Justice Act 3 of 2000 (PAJA) also excludes a decision to institute or continue a prosecution from the scope of administrative action.

49 Above at note 26.

50 MSCA civil appeal no 22 of 1996 (unreported).

51 Parliamentary privileges are intended to protect the legislative competence of Parliament. See Attorney General v Nseula and MCP [1997] 20(2) MLR 50 at 52–53; Attorney General v Mapopa Chipeta MSCA civil appeal no 33 of 1994 (unreported).

52 See for example Tembo and Kainja v Speaker of the National Assembly MSCA civil appeal no 1 of 2003 (unreported), confirmed in later proceedings of the same case in MSCA civil appeal no 23 of 2003 (unreported); Mkandawire case, above at note 16.

53 Ibid.

54 Id at 12.

55 For comparative jurisprudence, see President of the Republic of South Africa v South African Rugby Football Union 2000 (1) SA 1 (CC); Pharmaceutical Manufacturers case, above at note 13.

56 Civil cause no 60 of 1997 (unreported).

57 Id at 8.

58 Above at note 8.

59 Misc civil cause no 82 of 1997 (unreported).

60 Misc civil cause no 11 of 1998 (unreported).

61 Chap 15:03 of the Laws of Malawi.

62 These are the powers conferred on these bodies in secs 7–9 of the constitution respectively.

63 For scholarship on constitutional legality, see: Hoexter The New Constitutional and Administrative Law, above at note 18 at 83–85; Michelman, FI “The rule of law, legality and the supremacy of the constitution” in Chaskalson, M et al. (eds) Constitutional Law of South Africa (2nd ed, 2005, Juta & Company Ltd) 11-i at 11-1 – 11-14Google Scholar.

64 Constitutional cause no 13 of 2005 (unreported).

65 MSCA civil appeal no 28 of 1998 (unreported).

66 Above at note 56.

67 Misc civil cause no 155 of 1993 (unreported).

68 Above at note 65. However, Unyolo J also held, obiter, that the resolution was passed without hearing the respondents. The basis on which the judge arrived at this conclusion is difficult to establish.

69 SARFU case, above at note 28 at para 148.

70 Pharmaceutical Manufacturers case, above at note 13 at para 85.

71 See for example: Mbewe case, above at note 7; Kalinda v Limbe Leaf Tobacco Ltd civil cause no 542 of 1995 (unreported); HH Ngwenya and FG Gondwe v Automotive Products IRC matter no 180 of 2000 (unreported).

72 Ibid.

73 Id at 417.

74 Ibid.

75 Chisa case, above at note 23; SGS Malawi case, above at note 26.

76 Above at note 71.

77 See for example: sec 31 which provides that every person has the right to “fair and labour practices” and guarantees organizational rights and the right to fair wages and equal remuneration; and sec 29 which provides that every person has the right “freely to engage in economic activity, to work and to pursue a livelihood anywhere in Malawi”.

78 Employment Act No 16 of 2000; Labour Relations Act No 16 of 1996.

79 In Guwende v AON Malawi Ltd misc civil cause no 25 of 2000 (unreported), it was held that termination of employment by an employer by giving contractual notice without reasons, does not amount to an unfair labour practice. However, sec 57(1) of the Employment Act suggests that employment can only be terminated on grounds of operational requirements or incompetence. Furthermore, this section expressly recognizes the right of an employee to a hearing before being dismissal.

80 Misc civil cause no 47 of 2002 (unreported).

81 Above at note 22. See also Sawerengeka v ADMARC civil cause no 231 of 1993 (unreported).

82 Nathan Mpinganjira case, id.

83 Misc civil cause no 20 of 1992 (unreported).

84 Above at note 31.

85 Above at note 8.

86 Sec 154(1).

87 Sec 154(4) of the constitution lists the following grounds: incompetence, incapacitation, retirement and lack of impartiality.

88 Civil cause no 407 of 2005 (unreported).

89 It must be noted that the court in this case purported to disagree with the principle laid down in the Richard WJ Chikoja case, above at note 80, but there is no inconsistency between the views of Chimasula J and those adopted in this case.

90 Above at note 59.

91 Civil cause no of 80 of 1997 (unreported).

92 Curiously, even in English administrative law, an employee has to prove that his or her case has a sufficiently public component to warrant judicial review. See for example: R v British Broadcasting Corporation, ex parte Lavelle [1983] 1 WLR 23; R v East Berkshire Health Authority, ex parte Walsh [1985] QB 152; McLaren v Home Office [1990] ICR 824; R v Secretary of State for the Home Department, ex parte Benwell [1985] QB 554.

93 Civil cause no 681 of 1994 (unreported).

94 MSCA civil appeal no 33 of 1994 (unreported).

95 Ibid.

96 [1981–83] 10 MLR 264, 270.

97 See for example, the Impeachment Procedures case, above at note 64.

98 Constitutional cause no 6 of 2006 (unreported).

99 Above at note 64.

100 State v Attorney General, ex parte Abdul Pillane, above at note 7; Mchawi case, above at note 59; Burnet OM Mkandawire v State and Secretary for Housing, above at note 12; Leonard Zodetsa and Others v Council of the University of Malawi, above at note 93; Lilongwe v Attorney General misc civil cause no 48 of 1991 (unreported); Kapile and Others v Council of the University of Malawi misc civil cause nos 47 and 48 of 1992 (unreported); Kondowe v Malawi National Council of Sports, misc civil cause no 68 of 1993 (unreported).

101 Abdul Pillane case, id per Mkandawire J.

102 Mbewe case, above at note 7.

103 Above at note 101.

104 Above at note 7 at 415.

105 See for example: sec 4 of PAJA, above at note 48; Fedsure Life Assurance Ltd and Others v Greater Johannesburg Transitional Metropolitan Council and Others 1999 (1) SA 374 (CC), 1998 (12) BCLR 1458 (CC) at paras 26–27; New Clicks South Africa case, above at note 28 (especially the judgment of Chaskalson CJ, Sachs J dissenting); Strauss, PLAn Introduction to Administrative Justice in the United States (1989, Carolina Academic Press) at 155–89Google Scholar.

106 Lord Diplock in Council of Civil Service Unions and Others v Minister of the Civil Service [1985] 1 AC 374 at 410.

107 See Lord Green in Associated Provincial Picture House Ltd v Wednesbury Corporation (1947) 2 All ER 680 at 683.

108 See sec 24(d) of the interim South African Constitution.

109 See for example: Carephone (Pty) Ltd v Murcus NO 1998 (11) BCLR 1093 (LAC) paras 31–37; Roman v Williams NO 1998 (1) SA 270 (C) 281.

110 See for example: Fayaz Ibrahim v State v Commissioner General of MRA misc civil cause no 164 of 2003 (unreported); Peter von Knips v Attorney General, above at note 60; Abdul Pillane case, above at note 7 (per Potani J).

111 Above at note 60.

112 Misc civil cause no 10 of 1993 (unreported).

113 See Hoexter, CAdministrative Law in South Africa (2007, Juta & Company Ltd) at 303Google Scholar, citing de Waal, J et al. The Bill of Rights Handbook (3rd ed, 2000, Juta & Company Ltd) at 473Google Scholar; Claaren, J and Penford, G “Just administrative action” in Chaskalson, M et al. (eds) Constitutional Law of South Africa (2nd ed, original service 2001, 2005, Juta & Company Ltd) 63-i at 63-33 – 63-34Google Scholar.

114 See for example: Carephone case, above at note 109; Roman v Williams, above at note 109. In Malawi, this term has been defined in the context of limitations to rights. See for example: Friday A Jumbe and Humphrey C Mvula v Attorney General constitutional cases nos 1 and 2 of 2005 (unreported).

115 See Roman v Williams, id at paras 281–82; Craig Administrative Law, above at note 18 at para 166; de Ville, JRJudicial Review of Administrative Action in South Africa (2003, Butterworths) at 203Google Scholar. Again, in Malawi this term has been defined in connection with the limitations inquiry under sec 44(2) of the constitution. See for example: Maggie Kaunda v R criminal appeal no 8 of 2001 (unreported); JZU Tembo and Kate Kainja v Attorney General civil appeal case no 50 of 2003 (unreported).

116 See for example: Rustenburg Platinum Mines v CCMA 2007 (1) SA 576 (SCA); Trinity Broadcasting (Ciskie) v Independent Communications Authority of SA 2004 (3) SA 346 (SCA).

117 Craig Administrative Law, above at note 18 at 624.