Application 003/2011
In the mater of:
Urban Mkandawire Applicant
vs
The Republic of Malawi Respondent
JUDGMENT
The Court composed of: Sophia A. B. AKUFFQ President; Fatsah OUGUERGOUZ, Vice-President; Bernard M, NGOEPE, Gérard NIYUNGEKO, Augustino S. L. Ramadhanit Elsie N. THOMPSON, Sylvain ORÉ, El Hadji GUISSE and Ben KIOKO, Judges; and Robert ENQ Registrar.
In accordance with Article 22 of the Protocol to the African Charter on Human and Peoples' Rights on the Establishment of an African Court on Human and Peoples' Rights ("the Protocol") and Rule 8(2) of the Rules of Court ("the Rules"), Judge Duncan Tambala, Member of the Court and a national of Malawi, did not hear the application.
The Parties
1. The Applicant, Urban Mkandawire, is a Congolese born Malawian national. He brings this application to seek redress following his dismissal as lecturer by the University of Malawi ("the University").
2. The Respondent is the Republic of Malawi. It has ratified the African Charter on Human and Peoples' Rights ("the Charter"); it did so in 1989. Respondent is also a State Party to the Protocol, having ratified it on 9 September 2008. Respondent has also made a declaration in terms of Article 34(6) of the Protocol, accepting to be cited before this Court by an individual; the declaration was made on 9 October, 2008.
Procedure
3. The application was received at the Registry of the Court on 13 March 2011 by electronic mail and notified to the Respondent, and other entities under Rule 35 of the Rules of Court, by separate letters of 17 June 2011.
4. As the Applicant had indicated in his application that he had submitted his complaint to the African Commission on Human and Peoples' Rights ("the Commission") and that he has withdrawn it, the Registry, by letter of 28 March, 2011, inquired from the Commission, in conformity with Rule 29(6) of its Rules, whether the matter had been formally withdrawn, and by letter of 19 May, 2011, the Commission confirmed that it is so.
5. The Applicant also requested by letter dated 10 May 2011, that the then Acting Registrar and Justice Tambala, a national of Malawi, be excluded from the proceedings, and during its 21st Ordinary Session held from 6-17 June, 2011, the Court noted that Justice Tambala has already recused himself and that in accordance with Article 22 of the Protocol, he would not hear the matter. It also noted that the Acting Registrar would in any case not participate in the deliberations of the Court as he is not one of the Judges, By a letter of 8 July 2011, the Registrar informed the Applicant accordingly.
6. The Registry by Note Verbale dated 9 January 2012, which was received on 7 February, 2012, was notified by the Respondent of its representatives, and also sent its response to the application, and the same were served on the Applicant on the same day,
7. On 14 March, 2012, the Registry received the Applicant's reply to the Respondent's response to the application and on the same date served the same on the Respondent.
8. During its 24th Ordinary Session held from 19 to 30 March, 2012, the Court ordered the Respondent to substantiate, within thirty (30) days, and in accordance with Rule 52(4) of the Rules of Court, the preliminary objections it raised in its response to the application. The order was served on both parties on 2 April, 2012.
9. As the Respondent failed to comply with the order, the Applicant by a letter of 21 May, 2012, received at the Registry on 22 May, 2012, requested the Court to proceed with the matter.
10. At its 25th Ordinary Session held from 11 to 26 June 2012, the Court decided to schedule a public hearing on the matter for 20 and 21 September. 2012 and by separate letters dated 3 July 2012, both parties were notified of the decision.
11. The Respondent, by Note Verbale dated 14 July 2012, received at the Registry on 27 August 2012, requested for postponement of the hearing, and requested the Court to re-schedule the hearing to either the last week of October or the first week of November 2012, on the ground that both the Minister of Foreign Affairs and the Respondent's two legal representatives would be committed at the United Nations General Assembly in New York, United States of America.
12. The Applicant by a letter dated 28 August, 2012, informed the Registry that if the hearing was adjourned to the 27th Ordinary Session scheduled for Mauritius, he would not be able to attend due to the cost and invoked Rule 55 of the Rules, requesting the Court to consider proceeding with the hearing of the case as scheduled, even if the Respondent had not confirmed its availability.
13. During its 26th Ordinary Session held from 17 to 28 September, 2012, the Court decided that the hearing should take place from 29- 30 November, 2012, at its 27th Ordinary Session in Mauritius, and decided that it will provide assistance to the Applicant to enable him attend the session in Mauritius. That was done and at the 27th Ordinary Session held from 26 November to 7 December, 2012, the Court held a public hearing where both parties presented oral arguments.
14. Public hearings were held on 29 and 30 November, 2012 during which oral arguments were heard on both the preliminary objections and the merits. The parties were represented as follows:
For the Applicant
Mr. Urban Mkandawire - self-represented
For the Respondent
Mr. Zolomphi Nkowani — Counsel.
15. At the hearing questions were put by Members of the Court to the Parties; the replies were given orally.
Brief facts
16. The Applicant had entered into an employment contract with the University as a lecturer in French to some junior students. He says he signed the contract of employment with the University on 1 December 1998 and started teaching on 5 July 19991 joining the French Department, which had its own head.
The employment was for an indefinite period. One of the terms of the contract was that either party could terminate the contract on a three months' notice, or with a three months' payment in lieu of notice, The contract was with effect from 1 December 1998. As a result of certain complaints against him, the Applicant was dismissed from his post through a letter, written by the Registrar of the University, dated 2 December 1999. He took his case through Malawian Courts, Including the Industrial Relations Court, right up to the Supreme Court of Appeal, the latter being the highest judicial authority in Malawi. The Applicant was still not satisfied; he therefore took the matter to the Commission. He later withdrew the matter before the Commission, and lodged this application.
Applicant's case
17. The Applicant contends that the termination of his employment violated several of his rights under the Charter. Although the Applicant mentions Articles 4 5, 7, 15 and 19 of the Charter, it appears from the Applicant's papers both to the Commission and to this Court, and also from his overall presentation of his case, that the rights alleged to have been violated are his rights under Articles 7 and 15 of the Charter. Article 7 (1) reads:
''1. Every individual shall have the right to have his cause head. This comprises:
(a) The right to an appeal to competent national organs against acts violating his fundamental rights as recognized and guaranteed by conventions, laws, regulations and customs in force,...''
For its part, Article 15 of the Charter provides:
"Every individual shall have the right to work under equitable and satisfactory conditions and shall receive equal pay for equal work"
Remedies sought by the Applicant
18. In his application, the Applicant presents the following as a summary of his claims:
- ''An order reinstating me in my erstwhile position as a lecturer in the French department at Chancellor College.
- A payment of the lump sum of Malawi Kwacha 12, 839,059.00 being the sum of: a) Mk 8,000,000.00 being damages and legal costs claimed. b) Mk 3,416,845.60 being my immediate loss claimed. c)Mk 1,350,000.00 being the debt of my 9 months' salary that I should have received during my counselling period if I was not prematurely dismissed. d) Mk 56,813.40 being the salary of my two months' pay. e) Mk 15,400.00 being the balance of my rent money paid to Mrs. Eurita Ibrahim Khofi.
- A payment of my entitlement under the scheme run (sic) by National Insurance Company on my 9 months' salary as if was contributing towards the scheme during my counselling period if I was not prematurely dismissed. "
Circumstances leading to the termination of the Applicant's services
19. Shortly after Applicant commenced lecturing at the beginning of July 1999, his seniors started receiving complaints against him from students. The nature of the complaints was that he was not a competent lecturer. His own version of events is that he was being victimized because he refused to treat favourably some students who he says were well connected within the University. For this reason, he refused to attend a meeting, scheduled for 27 August 1999, called by the head of his department to discuss the complaints against him- He was later charged for failing to attend this meeting and, by a letter dated 9 September 1999, he was summoned to appear before a disciplinary committee. He appeared before this committee on 16 September 1999, According to the Applicant he was briefed on 20 September 1999 on the outcome of the hearing. By a letter of 8 November 1999, the Vice Chancellor of the University, as had been recommended by the Disciplinary Committee, issued a warning of insubordination against the Applicant, and arranged that he be counselled on class conduct.
20. Two lecturers were mandated to, and did attend, some of the Applicant's lectures for observation and assessment. They subsequently submitted a report to the Principal dated 30 November 1999. The report was adverse. in effect, it said the Applicant was not a competent lecturer. After receiving this report, the Principal in turn wrote a letter on 30 November 1999 to the Vice-Chancellor of the University calling for the dismissal of the Applicant in the interests of the students. According to the Applicant, the Vice-Chancellor called him to his office and briefed him about what transpired at the college by showing the Applicant the adverse report of 30 November 1999, as well as the Principal's letter, also of 30 November 1999. On 2 December 1999, the Applicant received a letter, dated the same day, from the Registrar of the University, informing him that his employment had been terminated with immediate effect. It stated, amongst others, that it was clear from the report that the Applicant had taken no steps to change his manner of teaching, which had been criticized by the lecturers who assessed him, and then filed the adverse report dated 30 November 1999.
Recourse to the national Courts of Malawi
21. To vindicate the alleged violation of his rights, the Applicant turned to various courts in Malawi.
22. The Applicant lodged a case in the High Court against the University of Malawi for, amongst others, his reinstatement. In its judgment dated 27 November 2003, the High Court found that the Applicant had not been given a fair hearing to defend himself against the adverse report, and therefore that his dismissal was wrongful. The Court, however, held that he could not be reinstated, it ordered that he be given a further 2 month's payment (the University had on its own already paid him for one month); the order was to put him in the same position as if a three months' notice had been given. Furthermore, the High Court awarded the Applicant damages for wrongful dismissal, the quantum of which would have to be established before the Registrar of that Court,
23. The University appealed against the above judgment to the Malawi Supreme Court of Appeal. One of the grounds of appeal was that the High Court had erred in awarding damages to the Applicant for the wrongful dismissal in addition to the three months' notice pay awarded to him. The Supreme Court of Appeal, in its judgment dated 12 July 2004 held that the High Court erred in awarding the damages for wrongful dismissal, over and above the three months' pay award. It ruled that if the Applicant had "desired to contend that rules of natural justice were not observed by the University when terminating his employment, he was perfectly entitled to have appropriately stated the issue in the pleadings as a separate cause- of action". As he had not done so, this claim was not before court; the High Court was therefore wrong in awarding such damages. The payment for the three months in lieu of notice was, however, confirmed by the Supreme Court of Appeal, and to date still stands.
24. Subsequently, the Applicant again approached the Supreme Court of Appeal, asking it to review its judgment of 12 July 2004, The Applicant was relying on sections 31 and 43 of the Constitution of Malawi. Section 31 guarantees the right to fair labour practice, and section 43 ensures administrative justice. As the Applicant was invoking the provisions of the Constitution, the Supreme Court of Appeal referred the matter to the Constitutional Court, which is a chamber of the High Court, comprising three judges.
25. The matter was enrolled before the Constitutional Court. The Constitutional Court held that the case was well governed by the employment legislation, namely, the Employment Act, 2000. It found that the case could be disposed of by invoking section 57(2) of the Employment Act, which protected an employee against unfair dismissal. It held that the matter would therefore best be handled by the Industrial Relations Court which, in terms of the Constitution of Malawi, was also a court of law. The matter was accordingly referred to the Industrial Relations Court.
26. Applicant's case was indeed enrolled in the Industrial Relations Court of Malawi. The court had to consider whether the Applicant's dismissal was unfair in that it was for no valid reason and whether he had been given the opportunity to be heard, As the Applicant's dismissal was before the enactment of the Employment Act 2000, the Court dealt with the matter on the basis of section 43 of the Constitution which, as stated earlier, provided for the right to fair labour practice. The court went into the history of the matter; it held that the Applicant had refused to attend a meeting called by his superior to discuss students' complaints, that he failed to adapt or change his teaching methods, and that he had been found to be incompetent; that, by 30 November 1999 when his dismissal was recommended, he had not shown any improvement, hence his dismissal on 2 December 1999. Furthermore, the court held that the Applicant had been afforded the opportunity to be heard; in this respect, the following appears in the last paragraph of page 4 of the judgment of that Court:
"It was head in the instant case that the applicant was invited to appear before the Vice-Chancellor to answer to his failure to improve following warning. The hearing was fair as far as the right to be heard in administrative setting is concerned. What was important was that at the time of the hearing the applicant was free to state his case and put in his defence. The decision to dismiss and the dismissal itself came after the hearing The applicant was still on probation. All factors taken into consideration, this court finds no compelling reason to Interfere with the sanction imposed .
The dismissal was held to be fair and the action dismissed.
27. The Applicant appealed against the above judgment to the High Court as he was not satisfied with it. When the Applicant. who is neither a licensed practitioner nor a lawyer, appeared before the High Court, he wanted to address that court from the Bar where licensed practitioners would do. This was denied to him in terms of the practice before the courts in that country; he was, however. free to argue his case from where people who were not practitioners would do. He however decided not to argue from anywhere else; instead, he decided to appeal to the Supreme Court of Appeal, for the third time.
28. The Applicants appeal was enrolled and heard in the Supreme Court of Appeal, and judgment was delivered on 11 October 2007. The judgment summarizes the Applicant's grounds of appeal into two. Firstly, "that his employment is terminated unlawfully since he was not given the opportunity to be heard by the University Disciplinary Committee to refute the allegations made against him, and secondly that he was not allowed to address the judge in the High Court in order to argue his appeal because he was not a licensed legal practitioner'. Regarding the first ground, the Malawi Supreme Court of Appeal held that the matter was res judicata and it could therefore not consider the point again; it referred to its judgment of 12 July 2004, already referred to and quoted above. In that judgment, the Supreme Court of Appeal had held, inter alia, that for this claim of unlawful dismissal, based on a breach of the rule of natural justice, the Applicant should have approached the Court by stating "the issue in the pleadings as a separate of action." In declaring the issue as res judicate, the Supreme Court of Appeal was in effect maintaining the view it had taken in its judgment of 12 July 2004.
29. To bolster his case regarding the alleged violation of Article 7 of the Charter, the Applicant made several unsubstantiated allegations against some of the judges, some of which allegations are not worthy of repeating here, He alleged, for example, that one of the judges of the Supreme Court of Appeal was the biological father of one of the students who had lodged complaints against him. During the hearing and in response to a question by this Court, counsel for the Respondent pointed out that the allegation was not true; the Applicant was unable to dispute this. Again, without any substantiation, the Applicant ascribed prejudice against Judges and the Registrar, and in some instances, used unbecoming language in criticizing some judgments.
Respondent's case
30. Preliminary Points: The Respondent has raised two preliminary points.
30.1The first point relates to the admissibility of the application, namely, that the application is not admissible as the matter is already before the Commission, and therefore that it is sub judice before the latter. In this respect, Respondent argues that it would be undesirable to allow litigants some forum shopping.
30.2 The second point raises the Court's lack of Jurisdiction. Respondent contends that this Court lacks jurisdiction over this matter because the Protocol came into operation only on 25 January 2004 whereas the Applicant's cause of action arose in 1999. The Respondent also argues, in this respect, that it ratified the Protocol only on 9 September 2008, and deposited the instrument of ratification on 9 October 2008. The Respondent does not, however, develop any argument around the fact that Respondent made the Article 34(6) declaration only recently; long after the cause of action had arisen.
31. Regarding the merits of the case: As far as the merits of the case are concerned, the Respondent denies that the Applicant's rights have been violated. Regarding the alleged violation of Article 7 of the Charter, the Respondent argues that the Applicant exercised his right to go to the national Courts, and was given a fair hearing. The Respondent says further that the Courts of Malawi did in fact lean backwards to assist the Applicant. As regards the alleged violation of Article 15 of the Charter, the Respondent argues that the Applicant was employed by the University under a contract, one of the terms of which was that the contract could be terminated by either party on three months' notice or a three months' payment in lieu of notice. The Respondent therefore argues that, as the Supreme Court of Appeal has already ordered that the Applicant be paid for the three months, the alleged right has not been violated. The Respondent further argues, in this respect, that the Industrial Relations Court has found the dismissal to be fair.
The Court's Ruling on the Preliminary points regarding lack of Jurisdiction
32. As said earlier, the Respondent's preliminary objection against the Court's jurisdiction is that whereas the Applicant's alleged violation of his rights took place in 1999, the Protocol came into operation in respect of the Respondent only after the Respondent ratified it on 9 October, 2008. The Court notes that the Charter came into operation on 21 October, 1986 and the Respondent ratified the Charter in 1989. it is the view of the Court, therefore, that at the time of the alleged violation of the Applicant's rights in 1999t the Charter was already binding on the Respondent; the latter was under the duty to protect the Applicant's rights alleged to have been violated. Furthermore, the Court notes that the Applicant*s case is that the alleged violation of his rights under Articles 7 and 15 is continuing. For the above reasons, the preliminary objection raised by the Respondent cannot succeed.
The Court's Ruling on the Preliminary point relating to Admissibility
33. Respondent's argument on this point is that the application is not admissible as it is pending before the Commission. This Court does, however, find that the Applicant did formally withdraw his communication from the Commission before lodging his application in March 2011. The Applicant submitted to this Court two copies of his letters to the Commission, dated 7 and 17 February 2011, withdrawing his communication. The Commission also confirmed to the Court, in its letter of 29 March 2011, that the Applicant had indeed withdrawn the matter before it. The matter is therefore not pending before the Commission. Once the Applicant has withdrawn his communication before the Commission he has the right to approach another forum and, in the view of this court, there is nothing untoward about this. The Respondent's objection is therefore not valid. However, this finding does not necessarily mean that the application is admissible because the application must still meet other requirements of admissibility; in particular, the Applicant must satisfy the provisions of Article 6(2) of the Protocol, read together with Article 56(5) of the Charter, namely, that he has exhausted local remedies. This aspect is dealt with later.
The Court's Jurisdiction in terms of the Protocol
34. The jurisdiction of the Court ratione materiae is set out in Article 3 of the Protocol. Article 3(1) of the Protocol provides that: "The jurisdiction of the Court shall extend to all cases and disputes submitted to it concerning the interpretation and application of the Charter, this Protocol and any other relevant Human Rights instrument ratified by the States concerned. " Article 3(2) provides that "in the event of a dispute as to whether the Court has jurisdiction, the Court shall decide". The provision is quite broad as it extends to all cases and disputes, on human rights issues, concerning the interpretation and application of the Charter, the Protocol and other relevant human rights instruments ratified by the State concerned. In the instant case. the requirements of the subject mater jurisdiction have been met, as the rights alleged to be violated are human rights enshrined in the Charter.
35. With regard to ratione personae jurisdictionr the Applicant is a national of Malawit a state that has ratified the Protocol and also filed the required declaration in terms of Article 34(6) as read together with Article 5(3) of the Protocol, accepting the competence of the Court to deal with cases against it from individuals and Non-Governmental Organizations.
36. Regarding ratione temporis jurisdiction, even though the facts giving rise to the application arose before the Respondent filed the declaration, the Court has already made a finding that the alleged violation is continuing. Taking all the above into consideration the Court does have jurisdiction to deal with this matter.
The Court's finding on the exhaustion of local remedies as required by Article 6(2) of the Protocol read together with Article 56 (5) of the Charter
37. As said earlier, the application must satisfy the requirements of Article 6(2) of the Protocol, read together with Article 56(5) of the Charter; that is, the Applicant must have exhausted local remedies. Article 6(2) of the Protocol provides that the "COURT shall rule on the admissibility of cases taking into account the provisions of Article 56 of the Charter. " For its part, Article 56(5) of the Charter requires the exhaustion of "local remedies, if any, unless it is obvious that this procedure is unduly prolonged" (See also Rule 40 of the Rules of Court). From the pleadings submitted by both parties as well as copies of various judgments of the courts in Malawi relied upon and submitted by the Applicant himself, a question arises whether the Applicant did exhaust local judicial remedies as required by the Articles, before coming to this Court, or whether he was faced with a procedure which was unduly prolonged. The Respondent did not raise any objection based on failure to exhaust local remedies. It, however, remains the duty of this Court to enforce the provisions of the Protocol and of the Charter. The Court is enjoined to ensure that an application meets, amongst others, the requirements for admissibility which are stipulated in the Protocol and the Charter. The law does not have to be pleaded. Failure by the Respondent to raise the issue of non-compliance with the requirements stipulated in the Protocol and the Charter cannot render admissible an application which is otherwise inadmissible. The requirement of exhaustion of local remedies is fundamental in the inter-action between State Patties to both the Protocol and the Charter, and their national courts, on the one hand, and this Court, on the other hand. State Parties ratify the Protocol on the understanding that local remedies would first be exhausted before recourse to this Court; the making of the declaration in terms of Article 34 (6) of the Protocol is also on this understanding.
38. Some jurisprudence on the requirement of the exhaustion of local remedies:
38.1. By exhaustion of local remedies, this Court is referring primarily to judicial remedies. This Court has recently confirmed the jurisprudence that what is envisaged by local remedies is primarily remedies of a judicial nature. In the Consolidated Matter of Tanganyika Law Society and the Legal and Human Rights Centre vs. The unite Republic of Tanzania, Application no. 009/2011 and Reverend Christopher R. Mtikila vs. theUnited Republic of Tanzania, Application no. 011/2011 paragraph 82.3. the Court held that: "The term local remedies is understood in human rights jurisprudence to refer primarily to judicial remedies as these are the most effective means of redressing human rights violations, "What the Court needs to determine in this case is whether the Applicant has exhausted local judicial remedies.
38.2 The Inter-American Commission of Human Rights (IACHR) stated in Mariblanca Staff Wilson and Oscar E. Ceville v. Panama, Case 12.303, Report No. 89/031 Inter-Am. C.HR., OEA/Ser-UV/ll.118 Doc. 70 rev. 2 at 531 (2003), paragraph 35 and 36 as follows:
"35. In the present situation, the State argues that the petitioners did not exhaust domestic remedies because the “amparo” brought by the presumed victim was not the appropriate remedy. [t argues that in reality the petitioners should have presented a motion of unconstitutionality...
36. in support of its arguments, the State invokes the decision of the Supreme Court in which the court, analysing the 'amparo' brought by the alleged victim, ruled that the 'amparo' was not the appropriate remedy because the challenged law was a legislative act of a general nature issued by an authority constitutionally empowered to do so... and that it was not susceptible to challenge through ‘amparo’ for constitutional protection The court concluded that this type of challenge must be pursued through independent action for unconstitutionality. The State argues that the petitioners failed to exhaust this remedy. "
After considering the matter further. the IACHR upheld the above argument. The petitioners having failed in the Supreme Court as a result of approaching that court, wrongly, by way of "an ‘amparo’ for constitutional protection" instead of through independent action for constitutionality" could not claim to have exhausted judicial local remedies.
39. To resolve whether or not the Applicant has exhausted local remedies in compliance with Article 6 (2) of the Protocol read together with Article 56 (5) of the Charter, it is necessary to look again at the judgments of the national courts of Malawi.
39.1 Judgment of the High Court, 27 November 2003: The Court held that the employment contract could be terminated by either party, upon three months' notice or by a three months' payment in lieu of such notice. The University had done neither, instead, it paid the Applicant for only a month. The Court in its judgment of 27 November 2003, added two months' payment; this award was confirmed by the Supreme Court of Appeal in its judgment of 12 July 2004. The award still stands; whether the Appellant has collected it or not, is irrelevant.
39.2 The Industrial Relations Court: The Court he'd that the dismissal was fair and that the Applicant had been given the opportunity to be heard, and had in fact appeared before a disciplinary committee on 16 September 1999, and also before the Vice-Chancellor on 2 December 1999 The Appellant did not seize the opportunity to challenge and argue against the decision of the industrial Relations Court in the High Court. Although he did appear in the High Court, he declined to argue his case when he was told that he could not do so from a place reserved for licensed practitioners only. This practice is endorsed by the highest court in Malawi and certainly without knowing the reasons and practices behind it, it would not be for our Court to adjudicate on its correctness or otherwise. What is of importance is that there is no indication that by arguing his case from where he was supposed to be, the Applicant would be prejudiced; nor was this his case before our Court. The Applicant should have agreed to argue, and then argued, the merits of his appeal against the judgment of the Industrial Relations Court in the High Court; if not satisfied with the High Court, appealed to the Supreme Court of Appeal. The Applicant has, to date, not done either.
39.3 Judgments of the Supreme Court of Appeal: As already mentioned, in its judgment of 12 July 2004 that court confirmed the three months' salary payment, but dismissed the claim for wrongful dismissal based on the alleged breach of the rule of natural justice; the court's reasons have already been mentioned and quoted above. In its subsequent judgment of 11 October 2007 the court holding that it was faced with the same issue, 
found the issue to be judicata» thereby reaffirming its earlier decision, namely, that the Applicant could not present his claim for wrongful dismissal in the way he did. The correctness of the two judgments of the Supreme Court of Appeal depends on whether or not indeed in terms of the national law of procedure, the Applicant was supposed to have stated the issue in the pleadings as a separate cause of action in claiming damages for wrongful dismissal. The Supreme of Appeal, being the final court, has the last word on what the correct national law is. It has, in its two judgments, said that the Applicant did not state the claim as a separate cause of action. It is important to note that the Applicant was not barred from pursuing his claims, but merely told that he was adopting a wrong procedure. In fact, the High Court had advised him to get the assistance of a lawyer to help him, but he declined.
Findings of the Court
40. It is clear from the foregoing summary of the judgments that, as at the time the Applicant lodged his application:
40.1 The avenue to claim damages for alleged wrongful dismissal and the avenue to challenge in the High Court the judgment of the Industrial Relations Court which had ruled that his dismissal was fair and lawful, were still open to the Applicant; however, he did not use these avenues. It was open for him to argue before the High Court against the judgment of the Industrial Relations Court and, if he did not succeed, to argue on further appeal to the Supreme Court of Appeal. As a result of his failure to do so, the High Court and the Supreme Court of Appeal have not had the opportunity to deal with the merits of the claim for wrongful dismissal, as determined by the Industrial Relations Court,
40.2 There has not been any undue delay in the disposal of Applicant's cases before the highest judicial institution in Malawi; namely, the Malawi Supreme Court of Appeal. A case number allocated to a case indicates the year in which a case was registered, and the date of judgment would not be too long thereafter: in the Supreme Court Case No 38 of 2003, the judgment, referred to earlier, was handed down on 12 July 2004; and in Case No. 24 of 2007, the judgment also referred to earlier, was handed down on 11 October 2007.
For the above reasons:
41. The Court declares this application inadmissible in terms of Article 6(2) of the Protocol, read with Article 56(5) of the Charter.
Costs
42. In accordance with Rule 30 of the Rules of Court, each Pany shall bear its own costs.
In conclusion, the Court, by a majority of seven votes to three, Vice President Ouguergouz, Judges Niyungeko and Guissé dissenting, decides:
- that the Application is not admissible.
- that the Application is struck out.
Done in Arusha, on this twenty-first day of the month of June, in the year Two Thousand and Thirteen, in English and in French, the English text being authoritative
Signed by:
Sophia AB, AKUFFO, President
Fatsah OUGUERGOUZ, Vice-President
Bernard M- NGOEPE, Judge
Gérard NIYUNGEKO, Judge
Augustino S. L. RAMADHANI, Judge
Elsie N. THOMPSON, Judge
Sylvain ORÉ, Judge
El Hadji GUISSE, Judge,
Ben KJOKO, Judge and Robert ENO, Registrar.
In accordance with Article 28(7) of the Protocol and Rule 60(5) of the Rules, the joint dissenting opinion of Judges Niyungeko and Guissé. has been attached to this Judgment