The High Court of Malawi has discharged a permission granted to former minister of Justice Henry Phoya to start judicial review proceedings against a Malawi Law Society (MLS) decision suspending him from practising law for two years.
The court has also denied Phoya an injunction restraining implementation of a decision by the disciplinary committee of the MLS.
High Court Judge Allan Muhome granted the former minister the nod to commence judicial review proceedings on September 14 2023, but pended his application for an injunction.
Phoya went to court after MLS issued a notice two weeks ago suspending him for failing to pay back a K48 million loan to Ian Changa, who was a client to private practice lawyer Wester Kosamu in 2020.
Phoya obtained a K18 million loan from Changa in 2020 whilst out of practice and was supposed to repay K48 million by December 20 2020 which he did not forcing Changa to drag him to MLS.
Court documents show that the society suspended Phoya after he allegedly snubbed a conduct meeting on August 25 2022 and a disciplinary hearing on November 17 2022.
MLS then ordered Phoya to pay back K25 993 536.33 being the principal sum and interest within 30 days and secondly suspended him from the practice of the law for a period of two years.
However, Phoya applied for judicial review, arguing the money he obtained from Changa was a private loan agreement in his personal capacity.
But in his ruling dated October 4 2023, Muhome first observed that the suit against MLS disciplinary committee was unprocedural as the committee does not have legal personality of its own.
He said, in future, the correct defendant should read ‘Malawi Law Society’ which is a corporate body, under Section 63 of the Legal Education and Legal Practitioners Act (Lelpa), with perpetual succession and a common seal with power to hold land and sue and be sued in its corporate name.
Further, the court argued the fact that Phoya obtained the loan when he was not practising as a lawyer did not hold water because Section 2 of the Lelpa still defined him as a legal practitioner and would only cease to be one upon his name being removed from the Roll, which was not the case.
In an interview last evening, Phoya’s lawyer Wellington Kazembe said they would appeal to the Supreme Court.
On his part, MLS chairperson Patrick Mpaka said by law Phoya was entitled to appeal against the decision.
“So unless that order is dealt with otherwise by the Supreme Court, it means the guidance from MLS disciplinary committee still stands,” he said.
Phoya was charged with three counts of conduct bringing the profession of law into disrepute, failure to respond to correspondence from MLS and conduct incompatible with the best interest of the profession and justice system.