When a number of court clerks obtained an order temporarily stopping the country’s Judicial Service Commission and the Chief Justice from recruiting and appointing a certain category of magistrate until their employment dispute was fully considered by the high court, the stage was set: some high court judge would have to consider whether Malawi’s top judge and judicial appointment authority were acting illegally. Judge Zione Ntaba drew the short straw. Faced with this difficult and sensitive question she said the JSC had to devise policy on crucial human resource issues, so that decisions on the appointments of magistrates should be clear, unambiguous and consistent.
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High court judge Zione Ntaba has delivered a decision she will never forget. Though her official profile lists Judge Ntaba’s passions as the rights of women and children, disability issues and the problems of HIV and AIDS, this is quite different. It is a decision in which she found that Malawi’s Chief Justice, Andrew Nyirenda, and the country’s Judicial Service Commission had acted irregularly, illegally and unconstitutionally.
Judge Ntaba’s opinion relates to a challenge brought by a number of court clerks who complained that they should have been given posts as “third grade magistrates” by the JSC. Instead, the JSC was recruiting and interviewing candidates from outside the ranks of these clerks. The 17, however, said they had been promised that if they qualified themselves by obtaining the relevant diplomas in law from the University of Malawi, they would be promoted and taken on as magistrates.
In May 2018, Judge Ntaba granted an application for the JSC’s recruitment process to be halted pending a decision on the dispute brought by the clerks. And now she has delivered her judgment, finding that the JSC had been in the wrong.
According to the clerks, the JSC - which does the recruiting - and the Chief Justice - who must actually make the appointments - had decided to appoint a number of new third grade magistrates in April last year. However, the JSC’s chief human resources officer had previously informed the clerks that they would be considered for these posts if they qualified themselves by obtaining the relevant diplomas.
They argued that the JSC should not have recruited candidates from outside as this violated their legitimate expectation to be appointed as third grade magistrates. They also claimed the decision to open the positions to outsiders violated their rights to development, administrative justice and economic activity.
According to the JSC and the CJ, however, the post of third grade magistrate required “local and not internal advertisement”. They cited the Public Service Act as supporting their view that the recruitment process should be open.
Judge Ntaba had asked for statistics from both sides on the recruitment processes followed by the JSC since 2007. From this information she concluded that there had been no “formal policy of appointment decisions”.
However, a “consistent pattern of appointment of internal candidates” had emerged from the figures, showing that the JSC “favoured internal recruitment for third grade magistrates or law clerks”. Given this statistical evidence, the JSC and the CJ could not deny that they had created a legitimate expectation: law clerks were going to expect that they would be considered and appointed if they met the criteria, namely that they had obtained the relevant law diploma.
The judge said that the JSC should have a “set and known human resources policy” for appointing or recruiting magistrates. This should include how such vacancies should be advertised – internally or externally.
Because no such policy had been formulated, the situation had been created where decisions about appointing magistrates was neither clear nor unambiguous nor consistent. “This practice is in my considered view … wrong in law.”
In conclusion, she wrote, it was the court's opinion that the conduct of the CJ and the JSC, in terms of the appointment of third grade magistrates, was "irregular and illegal" taking the constitution and other legislation into consideration.
Making her order she “called upon” the JSC and the CJ to “sit down and review the recruitment process” in relation to the clerks who had brought the application. They should ensure that the legitimate expectation of the clerks should be considered as stipulated by S 43 of the constitution. (This is the section that guarantees the right to 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”.)
She also found that though the clerks had succeeded in their claim for judicial review, and although she would give a costs order in their favour, she could not grant all the relief for which they had asked. As the JSC and the CJ were legally responsible for the function of appointing magistrates she could not substitute her decision over theirs in that regard.
Instead, she ordered, the JSC “should develop its own regulations in terms of the appointment of magistrates”.