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Court favours clerks in recruitment case

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By Feston Malekezo:

The High Court sitting in Zomba on Monday ruled in favour of court clerks who applied for judicial review on Judicial Service Commission and Chief Justice’s recommendation that the recruitment of third grade magistrates should be from outside the civil service.

Some 16 court clerks, who hold different grades in the Judiciary nationwide, started the case in April 2018.

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Twenty-five clerks claimed that they qualify for such positions.

The workers argued that the defendants—Judicial Service Commission and the Chief Justice—erred in recommending the appointment of the magistrates, as guided by Malawi Public Service Commission regulations.

Justice Zione Ntaba delivered the judgement which indicates that the Public Service Act is not the right law to be followed during the recruitment process.

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The Daily Times has seen the judgement.

“Having succeeded in their claim, however, this court noting that these are judicial appointments and that the Public Service Act is not the right law to be followed, calls upon the defendants to sit down and review the recruitment process in terms of this last cohort of third grade magistrates and accordingly ensure that the legitimate expectations of the claimants are taken into consideration as dictated by section 43 of the Constitution,” the judgement reads in part.

The court has since urged the commission to develop its own regulations in terms of the appointment of magistrates as stated in sections 118 and 119 of the Constitution of the Republic of Malawi as well as Section Five of the Judicature Administration Act and costs for the claimants.

The clerks, who obtained law diplomas from the University of Malawi’s Chancellor College, argued that the decision affected them as they were serving members of the Judiciary.

The clerks’ lawyer, Chancy Gondwe, said the judgement renders the recruitments that were made null and void.

“The clerks had legitimate expectations that they would be recruited and, therefore, the defendants have been told to re-do the recruitment process,” he said.

High Court Registrar, Agnes Patemba, said the issue has been reversed to the commission and the Chief Justice for their action.

The court sourced information on the appointment pattern for third grade magistrates from 2007 to 2018.

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