By Mercy Matonga:
The Supreme Court of Appeal has upheld a decision by the Senior Resident Magistrate (SRM) Court to forfeit $269,970 that a man attempted to take out of the country without authorisation.
The matter dates back to August 2015 when Muhamad Jawad was arrested at Chileka International Airport with the cash as he attempted to leave Malawi without the required approval.
The SRM ordered the forfeiture of the entire amount under Regulation 36 of the Exchange Control Regulations.
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However, the respondent appealed against the verdict.
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Although he withdrew his constitutional challenge, a High Court judge still proceeded to declare Regulation 36 unconstitutional.
The High Court also ruled that the forfeiture was “manifestly excessive” and ordered that the money be returned to him. This prompted the State to appeal to the Supreme Court.
The State sought the Supreme Court of Appeal’s determination on whether a High Court sitting alone had jurisdiction to declare Regulation 36 of the Exchange Control Regulations unconstitutional, and whether the High Court was correct in setting aside the forfeiture order for being “manifestly excessive”.
In a judgement seen by The Daily Times, the Supreme Court, with a panel of 10 judges, overturned the High Court’s ruling and confirmed the magistrate’s order to forfeit the $269,970.
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The topmost court stated that constitutional issues must be heard by a panel of at least three judges, not by a single judge sitting alone. It also noted that the Attorney General was not heard in the matter.
“A panel of at least three judges must hear constitutional questions in accordance with section 9(2) of the Courts Act.
“The High Court judge sat alone and without hearing the Attorney General. The declaration of unconstitutionality was therefore procedurally improper and a nullity,” the verdict reads.
The court further found that the High Court applied the wrong legal principles when it set aside the forfeiture order. It said the judge substituted the Magistrate’s decision without showing any misdirection.
