IN THE INDUSTRIAL RELATIONS COURT OF MALAWI

PRINCIPAL REGISTRY

MATTER NUMBER 224 of 2011

IN THE DISPUTE BETWEEN

DR ANJAMILE OPONYO...............................................APPLICANT

-AND-

REGISTERED TRUSTEES OF RAISING MALAWI ACADEMY FOR

GIRLS TRUST..................................................FIRST RESPONDENT

-AND-

REGISTERED TRUSTEES OF RAISING MALAWI

TRUST...................................... SECOND RESPONDENTS

-AND-

RAISING MALAWI INC........................................THIRD RESPONDENT

CORAM: J N’riva Deputy Chairperson

Counsel for the Applicant Not Present

Counsel for the respondent D Njobvu

Court Official M Mbobe

N’riva D.C.P:

RULING
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INTRODUCTION

This is an application for an interim relief specifically for the first

applicant. This application is made under rule 25(m) of the Industrial
Relations Court (Procedure) Rules. The application is supported by an
affidavit sworn by the applicant. The affidavit states the first respondent
employed her as Chief Executive Officer for a period of eighteen months.
The contract was to run up to September 2011. In the contract, the third
respondent was responsible for the settlement of school for the
applicant’s children. All along, the said respondent has been paying
school fees for the children at Bishop Mackenzie. In February, 2011, the
respondents terminated the employment contract. The matter is pending
before the Court for a hearing. She therefore seeks an order directing
the respondents to be paying the school fees until the matter is
determined. The applicant says the respondent has failed to offer her
repatriation. Therefore, she argues that her children stand to lose their
place at the school should the respondent not pay the fees.

The applicant also put forward skeletal arguments in support of the

motion. The applicant mainly relies on the Supreme Court’s decision in
SGS Blantyre (Pvt) Ltd v Marinho1 where the court concurred with the
High Court when it ordered the employer to continue providing housing
to the employee until her case on terminal benefits was concluded. The
applicant argues that the Marinho case is ‘on all fours’ with the present
application in that in this case as well the determination is about the
quantum of terminal benefits due to the applicant.

The respondents oppose the application through an affidavit sworn by

counsel. In the affidavit, counsel states that the third respondent, Raising
Malawi Academy for Girls (RMAG) gave the applicants notice in January
2011, about the impending closure and termination of their contracts.
RMAG offered to pay terminal benefits in full to all the applicants and
offered to pay further payments if the applicants were willing to enter into
a confidentiality agreement with them. The applicants were unhappy with
the confidentiality clause and described it as discriminatory. This
allegation, of discrimination, is one of the claims made against the
respondent according to the statement of claim.

1
1999 M L R 375

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After the applicants commenced the action, the respondents stated to
the applicants that RMAG was ready and willing to pay the applicants
their retrenchment benefits without any conditions. Thereby, the
respondent did not intend to pursue the issue of confidentiality
agreement any further. The applicants have not, however, accepted to
receive the redundancy benefits. The benefits for Dr Oponyo include an
amount of repatriation for her and her dependants. At the time of the
termination of the employment, RMAG had paid the school fees up to
the end of that time’s term. For this reason counsel argues that there is
no reason for Dr Oponyo to seek further payment of school fees.
Counsel also argues that the contract would have expired in September
2011. He therefore says he perceives no justification for the respondent
to continue paying the fees until the determination of this dispute.
Counsel also points out that the applicant has not claimed the other
benefits she was getting. These include pension, health insurance,
medical insurance, housing and so on. Counsel argues that it is illogical
for the applicant to claim payment of school fees independent of the
other benefits.

Counsel argues that this motion is an abuse of the court process.

ISSUE

The issue is whether to grant the relief sought by the applicant. Should
this court grant the payment for the school fees, pending the
determination of this dispute?

THE LAW AND DETERMINATION

The procedure of this court provides that this court may grant an interim
relief. Rule 25(1) (m) (i) of the Industrial Relations Court (Procedure)
Rules provides that:
Without prejudice to the decision-making power of the Court under section 67, the
Court may on application or of its own motion at any time grant urgent interim relief
pending a decision by the Court after a hearing

This court has power to grant an urgent interim relief pending a decision
of the court after a hearing. The court has in several matters granted
interim relies. The rule providing for this relief provides that the relief has
to be granted pending a decision and after a hearing. In many cases, the

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court has granted a relief even where there has been no hearing.
However, it appears that the rules intended to give the said relief
subsequent to a hearing but prior to the making of the decision.

In this matter, the applicant argues that she has an urgent issue for
which she is seeking an interim relief. However, indeed, as counsel for
the respondent argues, it is quite difficult to see the urgency of this
matter. As the respondent has deponed, the respondent paid the
applicant’s dependants’ school fees up to the end of the school term
when the applicant’s contract was terminated. The school fees was
payable on the condition of the applicant continuing in her employment.
The respondent terminated the employment contract. It would not be
practicable to order the respondent to continue payment of the school
fees, in the circumstances until the determination of the matter. In any
event, it appears that the applicant’s contract would have expired in
September anyway. For that reason, I see no reason why this court
should, as a matter of urgent interim relief, order the payment of school
fees up to the determination of the matter. The applicant seems to base
her claim of urgent relief on the fact that the respondent has neglected to
repatriate her and her dependants. However, the respondent has stated
in affidavit that they offered to repatriate the applicant to the United
States of America. The applicant has not taken the offer. I do not again
perceive the issue of want of repatriation as convincing as a ground for
this court to grant the order the applicant is seeking.

Finally, the applicant argues that this application is on all fours with SGS
Blantyre (Pvt) Ltd v Marinho.

SGS Blantyre (Pvt) Ltd v Marinho was an appeal against the High
Court’s injunction restraining the appellants from evicting or threatening
to evict the respondent. The basis of the respondent’s claim was that
certain sums of money, like severance pay, were still due to her from the
appellant. She was of the view that if she left Malawi she would not be
paid her money, and since the contract of employment was governed by
Malawian laws, she could not enforce it in any other country.
Furthermore, she said that the appellant had instituted stringent
conditions as regards the payment of the money which was already
supposed to have been paid to her. She would have liked to have her
money paid to her while she was in Malawi. As far as the house was
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concerned, she deponed that she had secured the house herself but that
the appellant was paying the rent to the landlord on her behalf. She,
therefore, wanted to be in the house until the case which she had taken
against the appellant was concluded.

The appellant contended that it had paid all the respondent’s monies,
except the severance allowance, which it wanted the respondent to
accept according to the terms which it had proposed. As far as the
house was concerned, the appellant contended that the lease was
between itself and the landlord and it is, therefore, not correct to state
that the respondent had secured the lease and that the appellant was
only paying the rent to the landlord on her behalf. It was the appellant’s
contention that the respondent’s occupation of the house was by virtue
of her employment and since the employment had been terminated, the
respondent was not entitled to live in the house.

One of the arguments on the appeal was that there was no legal basis
upon which the learned Judge could have granted the injunction. The
central issue of his argument is that the learned trial Judge was wrong to
hold that the respondent was a tenant in her own right, because she did
not prove that she had a lease between the landlord and herself.

The respondent had no right to protect, since she had already been
dismissed, and since the right to the house came as a benefit of the
contract of employment which had been terminated, the benefit of the
house had been lost.

Counsel for the respondent (the plaintiff) contended that the learned
Judge found that the respondent was a tenant and, therefore, she was
entitled to the house. She had the right which she had to protect by an
injunction even though the contract of employment had come to an end.
He further went on to say that as far as the relationship between
employer and employee was concerned, the learned Judge in this case
made extensive comments, and that the appellant’s argument of this
relationship was the correct general principle but there are exceptions,
because, the Court, in its discretion, may make the contract subsist and
there could be in existence, in certain cases, special circumstances
where the general principle could be departed from, as was the case in
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the matter. The learned Judge found as a fact that the respondent was a
tenant and, therefore, entitled to stay in the house. The respondent went
on to argue that in the case the injunction was necessary because there
were other outstanding issues as the appellant had not paid the
respondent in full her terminal benefits.

The Supreme Court, through the judgment of Mtegha JA dismissed the

appeal and agreed with the reasoning of Mwaungulu J in the High
Court that normally, the courts will not grant an injunction in cases
where the relationship of master and servant is at an end. However, he
went on to state that where there is a matter pending, a court may grant
an injunction.

I have had look at the decision of the High Court.2 The matter cannot be
said to be on all fours with this application. To begin with that matter was
about tenancy. The court found in favour of the applicant that the
tenancy might have been in her name. Secondly, in that matter there
was a dispute as to the sum of money in terms of severance allowance
payable to the plaintiff. The plaintiff wanted to remain in the house so as
to pursue her matter which she said would have been difficult had she
gone out of the jurisdiction. It seems that the restraint that the court
made was against the defendant evicting the plaintiff from the house. It
was necessarily that the defendant was ordered to continue paying
rentals for the applicant. The court said at page 136:
“In the notice under consideration, it appears to me that there are more possibilities
of constructing the notice to quit. There is a sense in which the company wanted the
plaintiff to indicate when she would want to quit the house. The other construction is
also possible. The total of all this is that the notice to quit is ambiguous. There was
no notice to quit given to the plaintiff under the letter of 7 March. The notice of the
22 April is invalid for its brevity insofar as it requests the plaintiff to vacate within two
weeks of the notice. This does not give sufficient time for the plaintiff to remove her
goods. Insofar as no such notice is given, an injunction will be given to restrain the
defendant company from evicting the plaintiff until such notice is given.”

Most importantly, the importance of this decision is that the court can
grant an injunction even where the employment contract has come to an
end. However, it depends on the circumstances of each case. In the
matter before us, the case has all the way to go while in the Marinho
2
Marinho v SGS (Blantyre) Pvt Ltd [1997] 1 MLR 124 (HC)

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case the only outstanding matter was about some payments to be made.
The matter was about difficulties the plaintiff would have had to pursue
the matter outside the country. Moreover, in that matter, the issue was
about tenancy which the court held tilted much in favour of the applicant.
It was about the scale of justice in relation to the facts before the court. I
am not convinced that the two cases are similar. For that reason, and
the reasons I have outlined above, I see no justification to order this
interim relief.

CONCLUSION

In conclusion, I do not perceive this motion to be of any urgency and

practicability and I do not see the feasibility of ordering the respondent to
pay the school fees for the applicant’s children until the determination of
the dispute in this matter. Finally, I do not agree with the assertion that
this matter is on all fours with the matter of SGS Blantyre (Pvt) Ltd v
Marinho. Accordingly, I dismiss the motion.

MADE the 25th day of November 2011 at Blantyre

J N’RIVA

DEPUTY CHAIRPERSON