Court allows amendment in DCs case

The High Court in Blantyre has allowed the Malawi Local Government Association (Malga) to amend a name they used as a party when they filed a case challenging redeployment of some district commissioners (DCs).

Justice Jean Kaira, after lengthy arguments by the association’s lead lawyer Davis Njobvu and Attorney General (AG) Thabo Chakaka-Nyirenda, who protested the amendment and prayed that the case be considered a nullity, allowed the amendment but said would give reasons later.

This meant the case was still alive and Malga would proceed to amend and where the association was appearing as Malawi Local Government Association as claimants in the case, it would change to Registered Trustees of Malawi Local Government Association.

The AG had earlier on argued that the claimant did not have legal existence, thus it was not possible to amend a party in judicial review proceeding because doing so was equal to bringing a new party.

“This new applicant cannot join or substitute a non-existent party. It is an afterthought to amend a party, this application must be dismissed with costs,” Chakaka-Nyirenda said.

The AG urged the court not to entertain “mercenary applications filed by mercenary applicants,” adding that Malga was a front for some DCs.

But Njobvu prayed that the amendment should be given, arguing associations are accepted before the courts.

“You can simply order an amendment. The law says a group of people can come before the court and make a claim. Trustees are members of this association.

“The Supreme Court ruled on this [that amendment of parties can be done]. The action by the Central Government [Office of the President and Cabinet] to transfer DCs is an attack on local government, and if the association would not act, who would?” Njobvu argued.

The claimants’ lawyer said it was better to amend and move on to real issues, arguing courts are not there to punish mistakes or dismiss cases on technicality. He said no prejudice would be caused with an amendment.

The court ruled in Njobvu’s favour by allowing the amendment.

There were also two other issues for the court’s consideration; a prayer by the AG to discharge an injunction Malga obtained on September 29 2022 to stop redeployments of 10 DCs and a prayer by the AG to discharge a permission for judicial review granted earlier to Malga.

Justice Kaira, is however, set to deliver rulings on these two issues on November 18 after lengthy arguments that saw the court sitting nonstop up to 8.40 pm from 3 pm.

In his arguments to discharge the permission for judicial review Malga obtained, the AG said the claimant was misleading the court because the Local Government Act does not create the claimant.

He wondered if the transfer of a DC could affect someone else more than the DCs themselves who did not come to court. The AG said the DCs were not even consulted about the court action.

Chakaka-Nyirenda tendered a letter dated October 6 2022 addressed to Malga by one of the DCs affected by the redeployments, Paul Kalilombe, who was transferred to the Ministry of Labour as director of administration.

Kalilombe in the letter says this was a promotion for him and he expressed surprise that some Local Government officers were legally challenging the decision to redeploy him.

“I have not and will not challenge my redeployment. I have reported for duties at the Ministry of Labour as instructed,” writes Kalilombe in the letter which was also copied to the AG.

Chakaka-Nyirenda wondered how a court could allow someone find himself in a predicament like that of Kalilombe by an action of people that never consulted him.

He said the association was a mere busy body, adding if they wanted a remedy they could find it at the Industrial Relations Court.

“There was restructuring [that necessitated the redeployments]. There are some operational changes that doctors and teachers should work in their respective fields. Some of these are medical doctors, some teachers, the claimant did not disclose this; this was suppression of material facts,” the AG said.

But Njobvu said the case was not about transfer of DCs, but how OPC attacked Local Government without even consulting it.