SADC unlawfully terminated Malawi judge's contract - Tribunal

After the disappointing, politically expedient demise of the Southern African Development Community Tribunal, a new decision by its replacement Southern African Development Community Administrative Tribunal (Sadcat) shows how a top staffer of the defunct body was leaned on by SADC to make him go quietly. But SADC reckoned without the determination of Judge Charles Mkandawire, someone who has shown his mettle in contentious cases heard in his home of Malawi.

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The applicant in this important case decided by the Southern African Development Community Administrative Tribunal was Judge Charles Mkandawire. He is a Malawian and was a member of the SADC Tribunal in its glory days when, based in Windhoek, it gave notice, by its work and brave decisions, that it was determined to ensure justice for all the parties that appeared before it.

The presiding Sadcat judge hearing the claim brought by Judge Mkandawire was Judge Francis Bere of Zimbabwe.

Judge Mkandawire should be well-known to readers as the presiding officer in a key Malawian case that dealt with attempts by former President Peter Mutharika to get rid of the country’s Chief Justice via a devious stratagem. Judge Mkandawire delivered a decision that found the CJ could not be removed as had been intended. He strongly restated the principle of judicial independence, and said that the former President had been dangerously wrong to claim that Parliament ranked higher (‘was more supreme’) than the courts.

Renewed

The judge was the SADC Tribunal’s first registrar and his family had moved to Namibia to be with him. He had a four-year contract, due to end on 30 November 2012, but, as the rules provided, he applied, in good time, for his contract to be renewed. During January 2013 he was informed that his contract had been approved for another four years.

Part way through this second contract he received a letter informing him that his contract ‘should be considered as having been extended, not for four years, but until the completion of the review of the role of the SADC Tribunal’ due to take place in August 2014.

Judge Mkandawire objected to the letter, but that objection was met by a further letter in August 2014, giving him three months’ notice. Disputing the legality of the decision to end his second contract ‘midstream’, he took the matter to the high court in Botswana since the present SADC Administrative Tribunal (Sadcat) was not operating at that stage. Later, once Sadcat was established, the dispute was transferred to that tribunal for adjudication.

'Unlawfully terminated'

Judge Mkandawire argued that his second contract ought to have run its full course and that it was ‘unlawfully terminated’.

The view of the respondent (the Southern African Development Community itself) was that Judge Mkandawire was ‘fully aware’ that his contract would not be renewed but that it would be ‘extended pending the completion’ of the review.

His contract had been ‘unlawfully renewed’ and his contract was thus validly terminated, said SADC.

'Distinction'

Judge Bere referred to evidence about the ‘unmistakable distinction’ with which Judge Mkandawire carried out his duties at the tribunal. His contract was renewed in January 2013, but this was followed the next month by new concerns from the Council about the contracts of the Tribunal’s staff and whether these contracts should be ‘revisited’.

After further SADC discussions, from which all staff were barred, a team was sent to Windhoek to negotiate with staff about resolving the problem of their employment. According to Judge Mkandawire, staff were offered ‘redeployment or compensation for the remaining period of the contracts’ and a mediation report was finalised, signed by all the heads of the negotiating team, including details of the compensation which, it had been agreed, was to be paid.

Later in 2014, the staff contracts were again discussed by SADC, and for the first time the question of whether the renewed contracts were lawful, was raised.

'Not binding'

SADC’s witness, from its human resources division, was Hendrix Tonde, who argued that the mediation exercise was not binding on SADC.

According to Judge Bere, once Judge Mkandawire’s renewed contract was confirmed by the executive secretary it was binding. Later attempts to get out of the agreement violated the rules. ‘Any attempt to change [a] contract of employment during its tenure is clearly calculated to prejudice or disadvantage that employee and … in violation of the enabling Act.’ Breaching the contract brought ‘inevitable consequences’, he said, and he ‘had not the slightest hesitation’ in concluding that the contract was unlawfully terminated.

The mediation exercise was meant to be binding but though Judge Mkandawire waited for the compensation that it was agreed could be paid, it never arrived.

Complicated

So, what compensation should he be paid? The answer was complicated by the fact that Judge Mkandawire had, at some stage after SADC let him go, again been re-employed by the judiciary in Malawi, as head of its civil division. He was thus able to off-set some of what he had lost through the action of SADC.

Judge Bere therefore ordered that Judge Mkandawire had to be paid the amount agreed during the mediation exercise less the judge’s earnings in Malawi after he returned from the defunct tribunal.

Interest of 10% was due from 30 November 2016 until the whole amount had been paid.