By Rebecca Chimjeka
Industrial Relations Court (IRC) Chairperson Howard Pemba has set aside the default judgement that saw the government being ordered to pay former Ministry of Finance budget director Paul Mphwiyo about K2.4 billion.
Mphwiyo was claiming K2.4 billion for being interdicted without pay since 2014 and, on September 1, IRC entered the default judgement, ordering the government to pay Mphwiyo after it failed to enter a defence.
However, Attorney General (AG) Thabo Chakaka Nyirenda— upon assuming office— challenged the default judgement, arguing that it was irregular, as the applicant failed to give the government the mandatory three months notice before the commencement of the action.
He further indicated that the government had a valid counterclaim which ought to set off Mphwiyo’s claim.
In his determination, Pemba states that the two main grounds upon which a default judgement may be set aside were irregularities and defence on merit.
“It is the view of this court that the defence merits has to be tested on trial. It is, therefore, the ruling of this court that the default judgement that was entered in favour of the applicant dated 1 September 2021 be put aside on the ground that the respondent defence has merits,” the judgement reads.
The court has since given the AG’s office 14 days to file and serve its defence.
“The respondent should be allowed to formally file the defence and serve it within 14 days from the date of this order and thereafter the matter shall be set down for prehearing conference before the registrar,” the ruling reads.
Mphwiyo’s defence has argued that the statutory mandatory three months notice was served on the State in March 2021 and that there was no response from the government and that the AG had no defence on merit to claim as he did not dispute the claim that Mphwiyo was interdicted without pay.
“It is further asserted by the applicant that the respondent is playing double standards as other civil servants who were also interdicted without pay together with himself [Mphwiyo] were paid their withheld salaries and, yet, he is still on interdiction without pay,” the determination reads.
According to the ruling, dated October 8 2021, the judgement should be put aside.
The office of the AG has since made a counterclaim, saying the K2.4 billion that Mphwiyo was claiming was related to criminal charges the application is answering in the High Court.
Mphwiyo’s lawyers served the Department of Human Resources with a default judgement to pay him salaries and benefits for the period he was on interdiction
In 2014, the government interdicted Mphwiyo following his arrest after he was suspected to have been involved in the 2013 Cashgate at Capital Hill, where money amounting to K30 billion is alleged to have been lost within six months.
Mphwiyo was until his interdiction the director of implementation, monitoring and evaluation in the Office of the President and Cabinet.
The AG’s office claims that the interdiction was in line with Malawi Public Service Regulations concerning public officers that have been arrested and charged with offences.
According to the regulations, an interdiction is a temporary suspension pending official inquiry and, if cleared, the officer is reinstated.
Mphwiyo was in 2012 shot at three times by unknown thugs at his Area 43 residence in Lilongwe and was flown to South Africa for surgical treatment.
His shooting opened a wave of revelations about the plundering of taxpayers’ money at the seat of government, with some civil servants being caught with cash stashed in car boots and homes.
Mphwiyo is on bail after he was charged with theft and money laundering, charges based on allegations that he is a suspect in the disappearance of K2.1 billion.