From: malawi_lawsociety@googlegroups.com <malawi_lawsociety@googlegroups.com> on behalf of Khumbo Bonzoe Soko <19kwacha@gmail.com>
Sent: Thursday, April 18, 2024 9:32:24 PM
To: malawi_lawsociety@googlegroups.com <malawi_lawsociety@googlegroups.com>
Subject: Re: emison phiri vs. illovo
Masiku amenewo. Kuli gugu. Pano ma WhatsApp group anatenga malo. The world has moved on.
Badada Sundu,
a prophet is without honour amongst his kinsmen!!
Ralph Kasambara, Esq
Ralph & Arnold Associates,
P. O. Box 2074,
BLANTYRE
MALAWI
TEL. 265-9-971 531/532
CELL: 265-9-937577/ 265-9 510 975
Ralph Kasambara, Esq
Ralph & Arnold Associates,
P. O. Box 31097,
LILONGWE 3
MALAWI
CELL: 265-9-937577/ 265-9 510 975</font>
----- Original Message ----
From: Sundu Madise <sunduzwayo@yahoo.co.uk>
To: MLS Google Group <malawi_lawsociety@googlegroups.com>
Sent: Thu, May 5, 2011 6:24:35 PM
Subject: Re: emison phiri vs. illovo
KK,
Indeed this is fertile ground. In my view the problem arises in 'bad copying'.
Our LRA and Constitution read like the abridged versions of their South African
versions, only that they have made amendments to the interim Constitution which
are in the final one as well as the LRA.
Furthermore, I believe that when we created the CC, a copycat of the SA model
too, we did not care to review S108 as read with S5 of the Constitution . So
does the HC rank above the HC or it is a division of the HC or is it a HC
anyway? In my view, we copied the SA model badly regarding the CC! In fact we
have a CC that is below a SC, strange! Because ordinarily and that is the case
in SA, the CC is the highest court by virtual of Constitutional supremacy! We
seem to have our constitutional jurisprudunce upside down. But even here in SA,
you can challenge constitutionality in a HC or even the Labour Court but
according to SA Constitutional law any order that declares a law
unconstitutional has to be confirmed by the CC. Our law does not say so, at
least my reading of S 108. Come to think of it, I have just written the synopsis
of the article I must now write!
Dr Bandawe must also have wealth of knowledge on the subject. The eminent Labour
Law Professor Darcy Du Toit talks highly of the good doctor from our shores!
Sent from my BlackBerry® Smartphone
-----Original Message-----
From: "kalekenikaphale" <kalekenikaphale@sdnp.org.mw>
Sender: malawi_lawsociety@googlegroups.com
Date: Thu, 5 May 2011 18:44:28
To: <malawi_lawsociety@googlegroups.com>
Reply-To: malawi_lawsociety@googlegroups.com
Subject: Re: emison phiri vs. illovo
Yes, Sundu.
I believe there would be need for an article on the subject. The IRC provision
is not
unique though. there are several provisions of that nature all over our statute
books.
I have elsewhere argued about the unfairness of the provision. Vide: my article
titled ''The jurisdictional bifurcation in labour disputes in Malawi published
in the
Malawi Law Journal. Due to the scope of the article, i did not tackle the issue
in
great detail.
Those that want to do a thorough job on the topic, I am willing to be a
colloborator
on the research and may co- author the paper if necessary.
Kalekeni.
On Thu, 5 May 2011 14:56:00 +0000, Sundu Madise wrote
> KK that is based on the assumption that the provision in the courts act and
> the rules do not offend the constitution... I have indeed also wondered how a
> Constitution can be 'side-stepped' in that manner without offending it! But
> indeed worth several articles this debate is and whether the 'black letter of
> the law' can also be 'ranked' Sent from my BlackBerryŽ Smartphone
>
> -----Original Message-----
> From: "kalekenikaphale" <kalekenikaphale@sdnp.org.mw>
> Sender: malawi_lawsociety@googlegroups.com
> Date: Thu, 5 May 2011 15:59:41
> To: <malawi_lawsociety@googlegroups.com>
> Reply-To: malawi_lawsociety@googlegroups.com
> Subject: emison phiri vs. illovo
>
> Mwabanthu,
>
> I have read the judgment posted by bwana Madise ( aakulu ).
>
> The point that the judgment makes is that the provision in the LRA regarding
> the finality of IRC judgments on issues of fact is invalid in view of the
> unlimited original jurisdiction of the High Court as granted to it by the
constitution.
>
> It is rather a bold decision that cuts across several frontiers. In the first
> place, the court ignores the black letter of the law. Secondly, a single judge
> of the High court was able to declare ( effectively ) a provision of an Act
> invalid regardless of the section 9 of the Courts Act and the Courts (
> Application and Interpretation of the Constitution ) Rules requirement that
> where a judge must refer such matters for certification and for judgment
> before 3 judges.
>
> Thirdly and most importantly, though the learned judge could be right, the
> discussion that gives rise to such a decision on the point could, i believe
> have had more depth that it got. But then this also depends on who argued the
> case for the parties.
>
> I am sure if there is no appeal, this point will resurface again sooner rather
> than later. I wish there was an appeal though to avoid inconsitent decision at
> High Court level.
>
> In the absence of an appeal I am sure one of us should take it upon themselves
> to write a critical appraisal of the rectitude of the decision. In R vs.
> Anderson [2002] UKHL 46 the courts warned against judges ignoring the letter
> of the letter and reading statutes their own way. They described the conduct
> as ''judicial vandalism''. Am not saying this is some such example, but who
> knows?
>
> I wish as practising lawyers at the bar we all developed a legal writing and
> critiquing culture. Unfortunately, we are all struggling to be average, tepid,
> mediocre, lackadaisal etc.
>
> Zamupweteka alembe critique.
>
> Good day.
>
> KK.
>
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Advocate KB Soko
Notary Public and Commissioner for Oaths
+265 999 546 345
'The struggle of man against power is the struggle of memory against forgetting' Milan Kundera
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