Liberating Malawi's Administrative Justice Jurisprudence from Its Common Law

Shackles
Author(s): Danwood Mzikenge Chirwa
Source: Journal of African Law , 2011, Vol. 55, No. 1 (2011), pp. 105-127
Published by: School of Oriental and African Studies

Stable URL: https://www.jstor.org/stable/41149842

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Journal of African Law, 55, 1 (2011), 105-127 © School of Oriental and African Studies, 2011.
doi:10.1017/S0021855311000052 105

Liberating Malawi's Admini

Jurisprudence from Its Co
Danwood Mzikenge Chirwa*

Abstract

The 1994 Malawian Constitution is unique in that it, among other things, recog-
nizes administrative justice as a fundamental right and articulates the notion of con-
stitutional supremacy. This right and the idea of constitutional supremacy have
important implications for Malawi's administrative law, which was hitherto based
on the common law inherited from Britain. This article highlights the difficulties
that Malawian courts have faced in reconciling the right to administrative justice
as protected under the new constitution with the common law. In doing so, it offers
some insights into what the constitutionalization of administrative justice means for
Malawian administrative law. It is argued that the constitution has altered the basis
and grounds for judicial review so fundamentally that the Malawian legal system's
marriage to the English common law can be regarded as having irretrievably broken
down as far as administrative law is concerned.

INTRODUCTION

In early 1994, Malawi adopted a new constitution which came into provisional
force on 18 May that year and became fully operational 12 months later. The
adoption of the new constitution marked an end to a 30 year dictatorial rule
by Dr Hastings Kamuzu Banda. The 1966 constitution, under which Banda'
regime operated, enshrined "unity, loyalty, obedience and discipline" as th
cornerstones of government.1 The regime operated under a cloak of secrecy,
undermined the established mechanisms of accountability (such as judicial
and parliamentary controls) and routinely used extra-judicial means to punish
(perceived) political opponents and critics of the regime. The 1966 consti-
tution did not expressly empower the courts to review any laws or conduc
of the state for conformity with the constitution. It is therefore not surprising
that the whole dictatorial era generated little public law jurisprudence.2

* Associate professor of law and head of the Department of Public Law, University of Cap
Town. The author would like to thank Professor Hugh Corder and Professor Christin
Murray for their comments on an earlier version of this article and Esther Atoyebi fo
research assistance.
1 See sec 2(1 )(i) of the 1966 constitution.
2 See MS Nzunda "The quickening of judicial control of administrative action in Malawi
1992-1994" in KM Phiri and KR Ross (eds) Democratization in Malawi: A Stocktaking
(1998, CLAIM) 283.

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106 JOURNAL OF AFRICAN LAW VOL 55, NO l

Unlike the 1966 constitution, the 1994 constitution recognizes several fun-
damental principles, including the rule of law,3 legality,4 openness, transpa
ency, accountable government and democracy.5 Furthermore, in section
it expressly guarantees the right of every person to just administrative just
However, Malawian courts have not fully grasped the extent to which
tion 43 has revolutionized Malawi's administrative law. Furthermore, a
cloud of uncertainty looms over the meaning of "administrative action", the
application of section 43 to employment cases and private actors, the relation-
ship between common law-based judicial review and section 43, and the
meaning of the new grounds for judicial review. As will be discovered in
this article, much of this confusion lies in the blind allegiance of the
Malawian legal profession to the received law of Britain. It is therefore the
overarching aim of this article to unlock the revolutionary potential of section
43 of the Malawian Constitution and identify the ways in which the new law of
adrninistrative justice in Malawi has departed from its common law origins.

THE EFFECT OF SECTION 43

Section 43 of the constitution provides:

"Every person shall have the right to:

(a) lawful and procedurally fair administrative action, which is justifiable
in relation to reasons given where his or her rights, freedoms, legiti-
mate expectations or interests are affected or threatened; and
(b) be furnished with reasons in writing for administrative action where
his or her rights, freedoms, legitimate expectations or interests if
those interests are known [sic]."

Mkandawire J was the first to observe, in the case of In the Matter of t

Constitution of the Republic of Malawi and In the Matter of the Remova
MacWilliam Lunguzi,6 that this section did nothing more than restate the pr
ciples of natural justice.7 The Malawi Supreme Court of Appeal (MSCA)
approved this statement on appeal in the same case.8 In Chawani v Attorn
General, Támbala JA, writing for the whole MSCA, reiterated: "In our view, se
tion 43 of the constitution is simply an entrenchment of the principle of na
ral justice which requires that no person shall be condemned without bei

3 1994 constitution, sec 12(vi).

4 Id, sec 12(ii).
5 Id, sec 12(iii).
6 [1994] 18 MLR 72.
7 This dictum has been reiterated in a number of other judgments. See for example:
Mbewe v Registered Trustees ofBlantyre Adventist Hospital [1997] 20(1) MLR 403 at 416-17;
State v Attorney General, ex parte Abdul Pillane constitutional case no 6 of 2005 (unreported)
(judgment of Mkandawire J).
8 Attorney General v Lunguzi and Another [1996] 19 MLR 8 at 11.

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 LIBERATING MALAWI'S ADMINISTRATIVE JUSTICE JURISPRUDENCE 107

heard. The section has of course, stretched the principle a bit to include the
requirement to give reasons which must support an administrative action."9
These decisions underestimate the significance of section 43. It is argued
that this section has transformed Malawian administrative law in at least
three fundamental ways. The first pertains to the basis of judicial review. As
mentioned earlier, the 1966 constitution did not expressly vest the power
of review in the courts. There was therefore no clear basis on which to chal-
lenge decisions of public authorities. Courts, following the practice and juris-
prudence of English courts, had to appeal to their inherent powers in order to
find that basis.10 This was obviously an insecure foundation for judicial review
because, without express authority, courts lacked the legitimacy and confi-
dence to question decisions of other branches of government, in the context
of a dictatorial regime. Even when the courts finally found the courage to
invoke the procedure of judicial review (during the transition to democracy
between 1992 and 1994), they operated within the confines of the ultra vires
doctrine.11 This meant that their task in judicial review consisted merely in
asking whether a public authority had exceeded his or her powers. The
grounds for review consisted of the less controversial grounds of judicial
review borrowed from the English common law, namely, "illegality", "irration-
ality" and "procedural impropriety".12
In a marked departure from the 1966 constitution, section 43 of the 1994
constitution provides for an explicit basis for judicial review and its grounds.
This section is reinforced by section 108(2), which vests in the High Court orig-
inal jurisdiction to review any law and action or decision of government.
These provisions mean that Malawian courts no longer have to rely on the
fragile premise of "inherent jurisdiction" in order to justify their authority
in judicial review proceedings: that authority now emanates directly from

9 MCSA civil appeal no 18 of 2000 (unreported).

10 In the Botswana case of State v Eugene Moyo and Another civil cause no 6 of 1988 (unre-
ported), Hallchurch J defined inherent powers as "those powers reasonably necessary
for the Administration of Justice and . . . powers over and beyond those explicitly granted
in the Constitution": quoted in DDN Nsereko Constitutional Law in Botswana (2002, Pula
Press) at 306.
11 See for example: Mhango and Others v Council of the University of Malawi [1993] 16(2) MLR
605; Taulo and Others v Attorney General and Circle Plumbing Ltd civil cause no 152 of
1993 (unreported); Buliyani v Malawi Book Service [1994] 17 MLR 24. For a discussion of
the limits of ultra vires as a basis for judicial review, see P Cane An Introduction to
Administrative Law (1996, Clarendon Press) at 348-52; A Breitenbach "The justification
for judicial review" (1992) 8 South African Journal on Human Rights 512.
12 However, courts have continued to consider these as the grounds for judicial review in
Malawi. See for example Mobile Malawi Ltd v MACRA civil cause no 1365 of 2005 (unre-
ported); State v Attorney General, ex parte Abdul Pillane, above at note 7 (especially the judg-
ments of Potani J and Mkandawire J); State v Rigtone Nzima and Malawi Electoral
Commission mise civil cause no 11 of 2004 (unreported); Fayaz Ibrahim v State and
Commissioner General of MRA mise civil cause no 164 of 2003 (unreported); Burnet OM
Mkandawire v State and Secretary for Housing mise civil cause no 148 of 2003 (unreported).

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108 JOURNAL OF AFRICAN LAW VOL 55, NO i

the constitution. Sections 43 and 108(2) have made it a core business of the
courts to keep the executive and administrators in check.
These provisions also mean that the power of judicial review does not orig-
inate in Order 53 of the Rules of the Supreme Court of England (Order 53).
Section 43 is the new organizing framework for judicial review, to which
Order 53 is subservient. The common law rules expressed under this order
are undoubtedly still valid for the procedure of judicial review (subject to
the dictates of the new constitution and any relevant Malawian statutory
law), but the substantive law of judicial review has been altered fundamentally
by the new constitution. The substantive common law reflected in Order 53 is
now of secondary importance only: as an aid to interpreting the provisions of
section 43. 13 The persistent practice of relying on this order for both the pro-
cedure of judicial review and the substantive law on administrative justice is
therefore deeply regrettable.
Secondly, now that the new constitution has replaced the concept of
parliamentary supremacy with that of constitutional supremacy,14 the idea
of ultra vires as a conceptual basis for judicial review is of limited application.
As noted above, ultra vires, within the context of parliamentary supremacy,
meant that the role of courts in judicial review was limited to ensuring
that administrators acted within the powers granted to them by the
omni-competent Parliament. Under a system of constitutional supremacy,
by contrast, courts have the obligation to ensure that administrators and
other public power holders function in accordance with the laws enacted by
the legislature as well as with the ethos, values, principles and edicts espoused
by the constitution.15
Thirdly, section 43 of the constitution provides for new and more expansive
grounds for review than was the case under the common law. Contrary to the
view that "section 43 does nothing more than restate principles of natural jus-
tice that a man shall not be condemned unheard", it also recognizes the right
to "lawful" administrative action, a notion that carries a broader meaning
than that attached to the concept of "illegality" at the common law. As
noted above, under the common law, the question of illegality resolved itself
into whether an authority acted without or in excess of its jurisdiction while
lawfulness under the constitution extends beyond compliance with laws
enacted by Parliament to requiring acting in accordance with the constitution.
For example, under the new constitutional framework there is a limit to the
discretionary powers and legislative powers which Parliament can confer on
administrators.16 An administrator acting under wide discretionary powers

13 For comparative jurisprudence, see Pharmaceutical Manufacturers Association of SA: In re: ex

parte President of the Republic of South Africa 2000 (2) SA 674 (CC) at para 33.
14 See sees 4, 5, 8 and 48(2) of the constitution.
15 See further discussion under the section headed "constitutional legality" below.
16 See for example Malawi Law Society and Others v State and Others mise civil cause no 78 of
2002 (unreported); Mkandawire and Others v Attorney General [1997] 20(2) MLR 1 at 11.

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 LIBERATING MALAWI'S ADMINISTRATIVE JUSTICE JURISPRUDENCE 109

may thus be found to be acting unlawfully. Furthermore, section 43 recog-

nizes the ground of procedural fairness, also a concept which is broader in
scope that the rules of natural justice.17 The latter, which subdivide into the
right to be heard and the rule against bias, have traditionally applied to a
class of administrative functions commonly described as quasi-judicial func-
tions.18 The application of procedural fairness spans a wider spectrum of func-
tions including those of non-adjudicative character,19 such as decisions
concerning the determination of rights.20
In addition to lawfulness and procedural fairness, section 43 recognizes "jus-
tification" as a new ground for review. As will be shown later, "administrative
action which is justifiable in relation to reasons given" is of broader import
than the ground of irrationality which the common law espoused.21
Fourthly, section 43 provides for the ground of "reasons in writing". This
too, is a new ground for review which was not available under the common
law.

ADMINISTRATIVE ACTION

Significance of the term

It would be exceedingly ill-fitting to proceed with an examination of the
meaning of the term "administrative action" without first establishing the sig
nificance of the term. "Administrative action" is the only path to section 43.
One cannot rely on the safeguards in section 43 without demonstrating th
the decision, action or inaction being challenged constitutes administrati
action.22
Thus far, courts have paid little attention to this term because they have
tended to rely on Order 53 as the basis for judicial review, for which there is
no need to show that the action being challenged constitutes administrative
action. In Chisa v Attorney General,23 for example, Mwaungulu J, relying on
Order 53, stated: "Judicial review as a remedy in public law is governed by

17 The case of Ridge v Baldwin [1964] AC 40 is credited with abolishing the application of
natural justice rules based on a classification of functions, while the introduction of
the broader notion of the duty to act fairly is ascribed to the case of In re HK (An
Infant) [1967] 2 QB 617.
18 PP Craig Administrative Law (2003, Sweet & Maxwell) at 409; C Hoexter The New
Constitutional and Administrative Law (2002, Juta & Company Ltd) at 190 and 206.
19 Ibid.
20 Determination decisions relate to applications for a new right to be gra
licensing decisions, tender awards, or social security or insurance eligibili
See E Mureinik "Reconsidering review: Participation and accountability
Jurídica 35 at 36.
21 See Carephone (Pty) Ltd v Marcus NO 1998 (11) BLLR 1093 (LAC) at para 32; Rom
NO 1998 (1) SA 270 (C).
22 State v Malawi Development Corporation, ex parte Nathan Mpinganjira mise civ
of 2003 (unreported); R vJZU Tembo and Others criminal case no 2 of 1997 (u
23 [1996] 19 MLR 80.

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lio JOURNAL OF AFRICAN LAW VOL 55, NO i

the same principles that governed the remedies it was intended to accentu
First, judicial review lies against persons or bodies with judicial, quasi-judic
and administrative functions. Judicial review lies against inferior courts o
bunals and any person or body performing public functions."24 The se
principle, he argued, is that judicial review is a remedy that vindicates a p
lic, not private, right.25 A number of cases have followed this approach.26
As is clear from the dictum above, Order 53 reflects an institutional
approach to judicial review, which focuses exclusively on the functionary as
opposed to the function when determining the availability of judicial review.
Under the new constitutional framework, there is a unified basis on which
judicial review can be invoked: the power being exercised must qualify as
"administrative action". While the nature of the functionary might assist in
determining whether an action amounts to administrative action, it is now
crucial to focus on the nature of the function itself.

The meaning of administrative action

Defining "administrative action" is not an easy task. This term has caused con-
troversy wherever it has been employed and no single universally acceptable
definition has yet been found.27 For example, the South African
Constitutional Court has on a number of occasions had an opportunity to
interpret the term, but it has not yet arrived at an exhaustive definition.28
An attempt to give it a comprehensive meaning through legislation has also
not proved to be very successful.29

24 Id at 87.
25 Id at 88.
26 See also In the Matter of the Ministry of Finance, ex parte SGS Malawi ltd mise civi
cation no 40 of 2003 (unreported); DDP v Lilongwe Chief Resident Magistrate's C
parte Dr Cassim Chïlumpha mise civil cause no 315 of 2005 (unreported); Stat
President and Others, ex parte Dr Cassim Chïlumpha mise civil cause no 22 of 2006
ported); Rigtone Nzima case, above at note 12.
27 In Germany, the concept of "administrative act" has been used since the early
tury. Initially, it was understood as an "authoritative pronouncement of the a
tration which in an individual case determines the rights of a subject". Its
definition, as reflected in sec 35 of the Law of Administrative Procedure of 1976,
"Administrative act is every order, decision, or other sovereign measure taken
authority for the regulation of a particular case in the sphere of public law and di
at immediate external legal consequences". See MP Singh German Administrative
Common Law Perspective (1985, Springer-Verlag) at 32-40. In Australia, sec 3
Administrative Decisions (Judicial Review) Act 1977 provides that a reviewable d
is one which is "of an administrative character proposed to be made, or requ
be made, as the case may be ... under an enactment"; see R Douglas Doug
Jones's Administrative Law (2002, The Federation Press) at 337^3.
28 See for example President of the RSA v SARFU (1999) 10 BCLR 1059 (CC); Fed
Assurance v Greater Transitional Metropolitan Council 1998 (12) BCLR 1458 (CC); New
South Africa (Pty) Ltd v Shabalala-Msimang NO 2005 (2) SA 530 (C); Sidumo and Ano
Rustenburg Platinum Mines Ltd and Others 2007 (12) BLLR 1097 (CC).
29 See C Hoexter "'Administrative action' in the courts" (2006) Acta Jurídica 303.

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 LIBERATING MALAWI'S ADMINISTRATIVE JUSTICE JURISPRUDENCE 111

In Malawi, the position has been complicated by the fact that courts have
not appreciated the central role of section 43 in the country's new administra-
tive law and, as a result, have tended to sidestep the question. Consequently,
what we have in Malawi is a corpus of confused and incongruous jurispru-
dence that, for the most part, treats section 43 as a surplus requirement to
Order 53. As argued earlier, these legal provisions do not provide for separate
regimes of administrative justice. The principal source of administrative law
and justice in Malawi now lies in section 43, read with section 108(2) of the
constitution. Order 53 is supported by these sections.
As a prelude to understanding the meaning of this term, it must be pointed
out that administrative justice forms part of the larger territory of public law.
It deals with the exercise of public functions. Essentially therefore, "adminis-
trative action" denotes a decision taken or a failure to take a decision while
exercising a public function. For example, a decision of the ombudsman, cre-
ated under section 120 of the constitution with powers to investigate instances
of maladministration, constitutes administrative action.30 In Kalumo v Attorney
General,31 it was held that the decision of the army commander forcibly retir-
ing an officer whose employment was governed by the Army (Regular Force)
Officers' Regulations was reviewable under section 43.
Public powers are predominantly exercised by state organs. However, in
order to gain a deeper understanding of "administrative action", one must
avoid over-reliance on an institutional approach to administrative law, as pub-
lic powers are increasingly also exercised by private actors. Furthermore, even
the legislature and the judiciary may also exercise administrative powers
which can qualify as administrative action. The institutional approach is mani-
fest in Chawani v Attorney General, where the MSCA stated (per Támbala JA) that
section 34 "applies to situations where there is an abuse [by an] executive arm
of government and no more" and that this section is "intended to provide pro-
tection to persons from potential arbitrary executive action".32 In a pre-1994
case of Kapile and Others v Council of the University of Malawi,33 Msosa J (as she
then was) concluded from the mere fact that the respondent was a public cor-
poration that it was bound by the principles of natural justice.34 Although
Támbala J (as he then was) in Nkhoma and Others v Council of the University of
Malawi endorsed this approach, he blended it with a functional approach by
inferring from the objects of the respondent that it had "a public duty to
offer, within [its] financial, material and other constraints, to deserving

30 See for example Malawi Broadcasting Corporation v Ombudsman mise civil cause no 53 of
1999 (unreported). See also Air Malawi Ltd v Ombudsman MSCA civil appeal no 1 of
2000 (unreported).
31 [1995] 18(2) MLR 669.
32 Above at note 9.
33 Mise application no 47 of 1992 (unreported).
34 An approach that looks to the functionary rather than to the function is also renected
Fayaz Ibrahim v State and Commissioner General of MRA mise civil cause no 164 of 20
(unreported).

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112 JOURNAL OF AFRICAN LAW VOL 55, NO l

students university education of a high standard".35 Based on this conclusion,

he held that the respondent was bound to adhere to the rules of natural jus-
tice when dispensing discipline to its students.
It is important to reiterate that, while the nature of the body that is exercis-
ing a power may give a hint as to what qualifies as administrative action, this
factor alone is not decisive. For example, a state institution, like a private party,
can also exercise private powers. This point was aptly underscored by
Mwaungulu J in the post-1994 case of Chisa v Attorney General36 Here, the appli-
cant challenged by way of judicial review the decision of the respondent to
detain her motor vehicle. This decision was made following the applicant's
failure to abide by her contractual obligations to pay her insurance premiums
and instalments on her motor car. It was held that, by detaining the vehicle,
the government was acting privately in terms of its contractual rights.
According to Mwaungulu J: "In law, Government is a legal entity. It can
enter into legal transactions with and like a private citizen. It has duties, con-
tractual and tortuous, like private citizens. [Such a case] is not in the realm of
public law. It is in the realm of private law. The public law remedies are only
available when Government is meddling with public law rights."37
However, in the SGS Malawi case, the same judge held, incorrectly it is
argued, that the government's rejection of the applicant's tender was not
amenable to judicial review. The applicant had been contracted to provide pre-
shipment inspection services for the purposes of assessing import tax. When
this contract was nearing its end, the government made a fresh call for ten-
ders, which resulted in the contract being awarded to another company. On
the question of whether the applicants were entitled to leave to apply for judi-
cial review, the court considered whether the government's decision to award
the contract to another private service provider and not the applicant was jus-
ticiable as a judicial review matter. While conceding that pre-shipment inspec-
tions had a public element, the court held nevertheless that there was "no
principle of public law on which to compel the Government to offer the con-
tract to any of the tenderers".38
It is argued that the court answered the wrong question in this case. The
pertinent issue was whether the decision of the government to award or reject
a tender concerning such an important public service as pre-shipment services
for tax assessment purposes amounted to administrative action. As was rightly
pointed out, the court could not, under the appearance of judicial review,
enter into the merits of deciding who should have been awarded the contract,
but it was entitled to consider whether the tender process was lawful,

35 [1993] 16(2) MLR 666 at 673.

36 Above at note 23. This was a proper case to be decided on the meaning of administrative
action, but the court proceeded to determine it on the basis of Order 53, even though
the principles it enunciated are valid for the meaning of this term.
37 Id at 91.
38 Above at note 26.

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 LIBERATING MALAWI'S ADMINISTRATIVE JUSTICE JURISPRUDENCE 113

procedurally fair or justifiable within the meaning of section 43 of the consti-

tution. Government tendering processes have increasingly attracted public
interest and provoked calls for greater accountability, transparency and open-
ness.39 Although the tender process in this particular case was not conducted
within a statutory scheme, it entailed enough public elements to bring it
within the confines of administrative action and, therefore, section 43.
The flip-side of the principle that public bodies may engage in private con-
duct is that private actors may also exercise public powers. This was succinctly
illustrated by the case of Chioza v Board of Governors of Marymount Secondary
School.40 In this case, the applicant challenged by way of judicial review the
decision of the respondent expelling her from the school, which was privately
owned. Mtambo J (as he then was), held that: "while the governors may be per-
forming some private law duties in the running of the school, I think that they
fall within the public domain when they perform such functions as the admis-
sion or expulsion of the students from the school and so render their
decisions in that respect susceptible to judicial review".41
This case underscores the fact that what is critical to the determination of
what constitutes administrative action is not only the nature of the function-
ary but also the nature of the function in issue. In determining the nature of
the function, guidance may be sought from the source of the function. For
example, in Chisa v Attorney General, Mwaungulu J stated that the "existence
of a contract is an indication of the existence of private rights".42 On the
other hand, powers emanating from statute and subsidiary legislation will
invariably give rise to administrative action.43
However, certain acts of private actors may constitute administrative action
in the absence of any specific legislation giving them specific public powers.44
The Chioza case is a good example.45 In this case, as the respondent was provid-
ing secondary education, which is traditionally considered a public service,
the exercise of disciplinary powers over school learners was arguably a conco-
mitant offshoot of those powers and therefore correctly adjudged to be
administrative action. Other instances in which the conduct of private actors
has been held to constitute administrative action have included where the pri-
vate actor wields enormous powers of a coercive kind in a given sector, or

39 See for example Umfolozi Transport (Earns) Bpk v Minister van Vervoer [1997] 2 B All SA 548
(SCA); Transnet Ltd v Goodman Brothers (Pty) Ltd 2001 (1) SA 853 (SCA); Logbo Properties CC v
Bedderson NO 2003 (2) SA 460 (SCA); R v Legal Aid Board, ex parte Bonn & Co [1996] 3 All ER 1.
40 [1996] 19 MLR 109.
41 Id at 111. For a similar view, see Mangani v Trustees ofMalamulo School of Medical Sciences
civil cause no 356 of 1992 (unreported).
42 Above at note 23 at 91.

43 Rv Panel on Take-overs and Mergers, ex parte Datafin Pic [1987] QB 815 at 847 paras
Lloyd LJ).
44 Examples include the Datafin case, id at 826 para C.
45 Above at note 40. See also Sumaili and Others v Michiru View Secondary School civil cause no
2702 of 1998 (unreported).

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114 JOURNAL OF AFRICAN LAW VOL 55, NO l

exercises powers akin to those exercised by the state, powers which have pub-
lic law consequences or powers that are of public concern.46
Not all public functions constitute administrative action. In particular, the
core powers of the judiciary (interpretation of the law), the legislature (law mak-
ing) and the executive (policy making) are not subject to section 43. For instance,
in R vJZU Tembo & Others*7 the High Court held that the issuance of a certificate
by the director of public prosecutions in terms of section 289 of the Criminal
Procedure and Evidence Code so that a magistrate can summarily, without
undertaking a preliminary inquiry as to the existence oidi prima facie case, com-
mit an accused to trial in the High Court did not amount to administrative
action. Such action was a function that "normally would have been performed
by a judicial officer".48 On the other hand, the court held that the decision by th
minister of justice requiring certain crimes to be tried by a judge sitting alone
constituted administrative action. This decision must be contrasted with that
reached in State v Lilongwe Chief Resident Magistrates' Court and Others, ex parte
Dr Cassim Chïlumpha49 where it was held that the issuing of summons by a magis-
trate court to a person to appear before it is subject to judicial review. It is
doubted whether the latter decision represents a correct interpretation of
administrative action, because the issuing of summons appears to be an ordin-
ary judicial function of a magistrate. If the issuance of a summons were con-
sidered administrative action and not judicial action, the rigorous
requirements of section 43 would render it impossible for these courts to con-
duct criminal and civil proceedings efficiently and within a reasonable time.
In Attorney General v MCP and Others, the MSCA held, correctly, that section 43
of the constitution "applies only to administrative acts and not legislative
acts".50 Thus, the court declined to apply this section to the challenge concern-
ing the enactment of the Press Trust (Reconstruction) Act 1995. The gist of this
case is that original legislative powers conferred on the legislature under sec-
tions 8 and 48 of the constitution do not constitute administrative action.51

46 See for example: R v Advertising Standards Authority, ex parte The Insurance Services pic [1990]
COD 42; Bank of Scotland v Investment Management Regulatory Organisation Ltd 1989 SLT 432;
R v Financial Intermediaries Managers and Brokers Regulatory Association, ex parte Cochrane
[1990] COD 33; R v BBC and TTC, ex parte Referendum Party [1997] COD 459; Aston
Cantlow, Wilmcote and Billesley Parochial Church Council v Wallbank [2001] 3 WLR 1323;
Dawnlaan Beleggingß (Edms) Bpk v Johannesburg Stock Exchange 1983 (3) SA 344 (W);
Coetzee v Comitis 2001 (1) SA 1254 (C); AAA Investments (Pty) Ltd v Micro Finance Regulatory
Council 2006 (11) BCLR 1255 (CC).
47 Criminal application no 1 of 1995 (unreported).
48 Sec l(ff) of South Africa's Promotion of Administrative Justice Act 3 of 2000 (PAJA) also
excludes a decision to institute or continue a prosecution from the scope of administra-
tive action.
49 Above at note 26.
50 MSCA civil appeal no 22 of 1996 (unreported).
51 Parliamentary privileges are intended to protect the legislative competenc
Parliament. See Attorney General v Nseula and MCP [1997] 20(2) MLR 50 at 52-53; Atto
General v Mapopa Chipeta MSCA civil appeal no 33 of 1994 (unreported).

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 LIBERATING MALAWI'S ADMINISTRATIVE JUSTICE JURISPRUDENCE 115

However, certain acts of the legislature are open to review under section 43. It
has been held, for example, that the decision of the speaker of the National
Assembly declaring the seat of a member of Parliament vacant, amounts to
administrative action and is therefore susceptible to judicial review.52
As is the case with typical legislative and judicial powers, core executive
powers do not constitute administrative action. In Mkandawire and Others v
Attorney General,53 the Alliance for Democracy challenged the decision of the
president to appoint two ministers from the party and his refusal to relieve
other ministers appointed from the party of their duties after the party had
terminated its coalition agreement with the ruling United Democratic
Front. The High Court held that the power of the president to appoint minis-
ters was not reviewable under section 43. It stated:

"The power to appoint ministers is one of the special powers whose source
can be traced to prerogative powers. These were powers originally exercised
by the King or Queen of England. They include the power to make treaties,
the power relating to the defence of the realm, prerogative of mercy, the grant-
ing of honours and decorations and the dissolution of parliament. These
powers including the power to appoint ministers cannot be the subject of
judicial review."54

The prerogative powers referred to in this dictum are now to be found in sec-
tions 89(1) and 94(1) of the constitution. They do not give rise to administrative
action.55
A similar decision was reached in Aleck Kwame Phiri and Others v Minister of
State in the President's Office and Attorney General.56 In this case, the applicants
sought an order asking the High Court to quash several decisions of the min-
ister of state in the president's office, including the decisions to: abolish the
National Celebrations Council; to create the National Celebrations Unit in
the office of the president and cabinet; and to transfer the statutory powers
of the National Celebrations Council to the National Celebrations Unit. In dis-
missing the application on this point, Tembo J stated:

"it is the prerogative of the Cabinet or indeed any minister responsible for the
administration of any department of the Government, where it is considered
expedient so to do, to create any administrative unit ... for the purpose of

52 See for example Tembo and Kainja v Speaker of the National Assembly MSCA civil appeal no 1
of 2003 (unreported), confirmed in later proceedings of the same case in MSCA civil
appeal no 23 of 2003 (unreported); Mkandawire case, above at note 16.
53 Ibid.
54 Id at 12.
55 For comparative jurisprudence, see President of the Republic of South Africa v South
Rugby Football Union 2000 (1) SA 1 (CC); Pharmaceutical Manufacturers case, above
13.

56 Civil cause no 60 of 1997 (unreported).

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116 JOURNAL OF AFRICAN LAW VOL 55, NO l

better enabling the Cabinet, or the minister responsible, [to] carry out any pub-
lic duty or perform any public function or exercise any public power of the
Government. That prerogative is derived from the constitutional powers of
the President of the Republic regarding the administration of the affairs of
the state and, in particular, the creation and running of government depart-
ments. Except where the Constitution or any legislation otherwise so expressly
provides regarding the creation of any public institution, organization or
body, there are no general limitations, in law, on the exercise by the
President of the Republic of his constitutional powers to create and run any
department of Government for the carrying out of any particular function
of the Government."57

Apart from the prerogative powers of the president and the broad policy
powers conferred on the executive in section 9 of the constitution, other
acts of the executive and public functionaries are administrative in nature.
For example, in Attorney General v Lunguzi and Another,58 the president of
Malawi verbally informed the then inspector general of police of his
removal from office and of his new appointment as a diplomat. The
MSCA held that this was a case to which section 43 was applicable. The pre-
sident's decision was quashed on the ground that he had given the respon-
dent neither a chance to be heard before the decision was taken nor the
reasons for the decision. Similarly, in Felix M Malawi v Minister o
Education, Science and Technology,59 the respondent suspended the applicant,
a teacher at Stella Maris Secondary School, from his employment. It w
held that this decision was reviewable in terms of section 43 of the consti-
tution. In Peter von Knips v Attorney General,60 the decision by the Ministry of
Home Affairs declaring the applicant a prohibited immigrant and deport-
ing him in terms of section 4(1 )(h) of the Immigration Act61 was held to
be reviewable under section 43.
This discussion underscores the centrality of "administrative action" to sec-
tion 43. While courts still maintain a trichotomy between judicial, executiv
and legislative powers, all public powers are potential candidates for judicia
review under section 43 provided they qualify as administrative action. The
powers that are exempt from this section are the core functions of the legisla-
ture, the judiciary and the executive.62 Does this mean that the public powers
that do not qualify as administrative action are not reviewable at all? It is to
this question that this article now turns.

57 Id at 8.
58 Above at note 8.

59 Mise civil cause no 82 of 1997 (unreported).

60 Mise civil cause no 11 of 1998 (unreported).
61 Chap 15:03 of the Laws of Malawi.
62 These are the powers conferred on these bodies in sees 7-9 of the con
respectively.

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 LIBERATING MALAWI'S ADMINISTRATIVE JUSTICE JURISPRUDENCE 117

Constitutional legality
Malawian courts have not systematically distinguished between two types of
review created by the constitution. The first is judicial review in the consti-
tutional sense and the second is judicial review in the administrative law
sense. The former is based on the constitution as a whole and asks whether
public power has been exercised in accordance with the provisions of the con-
stitution (constitutional legality).63 The latter poses the question of whether
administrative action is consistent with the requirements stipulated in section
43. Judicial review under section 43 only deals with the category of public
powers which amount to administrative action. Thus, public powers which
originate in the constitution but do not qualify as administrative action
may still be reviewed on the ground of constitutional legality.
For example, in the case of In the Matter of Presidential Reference of a Dispute of
a Constitutional Nature under Sections 89(l)(h) and 86(2) of the Constitution and In
the Matter of Impeachment Procedures under Standing Order 84,^ the Constitutional
Court conceded that the promulgation of the impeachment procedures
adopted by the National Assembly in October 2005 was not reviewable as an
administrative action under section 43. Nevertheless, it held that these pro-
cedures were reviewable to determine whether they were consistent with the
constitution, especially section 86(2) which requires that impeachment
procedures must be in "full accord with the principles of natural justice".
In Attorney General v SG Masauli,65 the National Assembly passed a resolution
suspending the salaries and allowances of members of Parliament and state
funding to political parties involved in the boycott of the National
Assembly. This decision was found to be ultra vires, illegal and unconstitu-
tional. This case was not decided under the provisions of section 43 probably
because the passing of the resolution by the National Assembly was con-
sidered a legislative act and therefore not reviewable under this section.
Nevertheless, the resolution was reviewed through the concept of consti-
tutional legality.
In the Aleck Kwame Phiri case,66 although the High Court held that the pre-
sident's power to create or run a government department was a policy-laden
decision unsuited to judicial review, it noted that such powers would be
reviewable in instances where the constitution or any legislation made express
provisions regarding the creation of any such public institution, organization
or body. In Chirwa v State,67 the applicant was dismissed from his position as

63 For scholarship on constitutional legality, see: Hoexter The New Constitutional and
Administrative Law, above at note 18 at 83-85; FI Michelman "The rule of law, legality
and the supremacy of the constitution" in M Chaskalson (eds) Constitutional Law of
South Africa (2nd ed, 2005, Juta & Company Ltd) 11-i at 11-1 - 11-14.
64 Constitutional cause no 13 of 2005 (unreported).
65 MSCA civil appeal no 28 of 1998 (unreported).
66 Above at note 56.
67 Mise civil cause no 155 of 1993 (unreported).

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118 JOURNAL OF AFRICAN LAW VOL 55, NO l

town clerk of the City of Blantyre following a directive from the government
Subsequently, the president passed a proclamation which purported to insu
late the city and the government from suits for unlawful dismissal. It was
held that the proclamation was unconstitutional as it was made in excess o
the president's powers and in violation of the applicant's right of access to
courts.

It is important to recognize the difference between these two types

review. Judicial review under section 43 is too intensive for certain type
public powers, such as policy making powers of the executive and legisla
powers, which are constitutionally entrusted to specific branches of govern-
ment within the context of a separation of powers. Section 43 requires admi
istrative action to be procedurally fair, lawful and justifiable. It is nonsensic
for example, to require the president to adhere to all these requireme
when exercising his prerogative powers under section 89(1) of the con
tution. The doctrine of constitutional legality allows the court to undert
a less probing review of such powers. In Attorney General v SG Masauli,
example, the MSCA restricted itself to the legality or constitutionality of th
resolution.68 It held that the National Assembly had no power to withhold s
aries of members of Parliament. Furthermore, it held that the resolution wa
unlawful because it had retrospective effect. In South Africa, where this con
cept has been developed more meticulously, it has been held that all pu
powers must be exercised in good faith69 and not irrationally or arbitrarily
Effectively, the concept of constitutional legality serves as the minimum lev
of legality to which all public powers must conform, without upsetting
balance of power implicit in the doctrine of the separation of powers.

Section 43 and employment cases

One area in which section 43 has been invoked most, but with conflicting ou
comes, is employment. On one side is a body of jurisprudence that sugge
that section 43 is applicable to employment contracts.71 The comm
denominator of this strand of cases is that they fail to answer the quest
whether termination of, or dismissal or suspension from, employmen
amounts to administrative action. These cases tend to imply the right to
heard in employment contexts without proffering any clear basis. Fo
example, in the Mbewe case,72 the High Court stated: "It seems to me t
the right to be heard created under section 43 of the constitution is o

68 Above at note 65. However, Unyolo J also held, obiter, that the resolution was pa
without hearing the respondents. The basis on which the judge arrived at this c
clusion is difficult to establish.
69 SARFU case, above at note 28 at para 148.
70 Pharmaceutical Manufacturers case, above at note 13 at para 85.
71 See for example: Mbewe case, above at note 7; Kalinda v Limbe Leaf Tobacco Ltd civil cause
no 542 of 1995 (unreported); HH Ngwenya and FG Gondwe v Automotive Products IRC matter
no 180 of 2000 (unreported).
72 Ibid.

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 LIBERATING MALAWI'S ADMINISTRATIVE JUSTICE JURISPRUDENCE 119

which, where circumstances so apply, ought to be enjoyed by all concerned,

irrespective of the fact that in any particular case the rights being claimed
are prescribed by statute or under a contract between parties."73
The court added that section 43, read with sections 5, 10(2) and ll(l)(2)(b) of
the constitution, implies "a right for any male or female employee to be heard
where any conditions of employment do not make provision for a right to be
heard under their provisions for conduct and discipline".74 In this case, the
employment of the applicant, a driver at Blantyre Adventist Hospital, was ter-
minated on the ground of misconduct without hearing him. The court
assumed that section 43 was applicable to this case without first deciding
whether the termination in this case constituted administrative action.
In Kàlinda v Limbe Leaf Tobacco Ltd, the applicant's employment was also ter-
minated on the ground of misconduct without hearing him. The High Court
held, rather startlingly,75 that the principles of natural justice entrenched in
section 43 do not only apply "against persons responsible for executive or
administrative action" but also "apply widely in public and private law".
According to the court:

"Even without section 43, therefore, the court would import natural justice
principles in an employment contract. These principles are part of the general
law. They are therefore subservient to and derive from the Constitution. It is
anomalous to suggest that the Constitution, the fundamental law, entrenches
laws made under it. Natural justice principles reflect the fundamental law, the
Constitution, which, in many parts, reflects due process."76

These cases display a slipshod approach to section 43. Although they are influ-
enced by a sanguine need to protect employees, who often find themselves in
a weak bargaining position, the constitution has sufficient provisions,77 but-
tressed by special legislation,78 aimed at protecting employees. It is through
these that one can find an express legal basis for requiring a hearing before
one can be dismissed from work.79 Section 43 of the constitution applies to

73 Id at 417.
74 Ibid.
75 Chisa case, above at note 23; SGS Malawi case, above at note 26.
76 Above at note 71.
77 See for example: sec 31 which provides that every person has the right to "fair and labou
practices" and guarantees organizational rights and the right to fair wages and equa
remuneration; and sec 29 which provides that every person has the right "freely to
engage in economic activity, to work and to pursue a livelihood anywhere in Malawi"
78 Employment Act No 16 of 2000; Labour Relations Act No 16 of 1996.
79 In Guwende v AON Malawi Ltd mise civil cause no 25 of 2000 (unreported), it was held th
termination of employment by an employer by giving contractual notice witho
reasons, does not amount to an unfair labour practice. However, sec 57(1) of th
Employment Act suggests that employment can only be terminated on grounds of oper
ational requirements or incompetence. Furthermore, this section expressly recogniz
the right of an employee to a hearing before being dismissal.

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120 JOURNAL OF AFRICAN LAW VOL 55, NO l

administrative action only, and the only concern of administrative action is

the exercise of public powers. This is a right whose nature militates against
unguarded direct horizontal application. Private actors exercising public
powers are, of course, amenable to section 43. As has been argued earlier,
there is also a limited category of private powers which may be subject to
this section. These include powers which, due to their public consequences
or the public interest they generate, don the public outfit and gain the status
of administrative action. The section cannot simply be extended to private
conduct. If we are to loosen the noose around administrative action as the
cases cited above do, the concept would escape from its leash, dragging th
courts into a minefield of private powers and rendering it practically imposs-
ible to draw the bounds of its application. This fear was highlighted by
Chimasula J in State v Southern Regional Water Board, ex parte Richard W
Chïkoja,80 where he cautioned against allowing the remedy of judicial review
to be invoked in typical employment cases.
The correct interpretation of section 43, as regards its application to employ
ment cases, is articulated in State v Malawi Development Corporation, ex parte
Nathan Mpinganjira.81 In this case, Kapanda J stated:

"I am of the view that the Department of Statutory Corporations did not exer-
cise public power when it decided to suspend the Applicant so as to warrant
the reviewing, by this court, of the said decision. Indeed, the decision of the
Respondent is not an administrative one which is subject to review in judicial
review proceedings. In my opinion it is only an action (decision) in the exercise
of public power that could be termed an administrative action (or decision)
[that falls] within the provisions of Section 43 of the Constitution."82

There are a number of employment cases to which section 43 was correctly

applied. For example, in Chihana v Council of the University of Malawi,83 the
respondent had a contractual right to terminate the applicant's employmen
by giving her three months' notice or pay in lieu of such notice. However, sta-
tute XVII of the University Statutes provided that the procedure for disconti-
nuing such an appointment had to allow for the right of appeal to the
Council of the University. The High Court held that the termination of th
applicant's employment, after she had refused to resign upon the request o
the registrar of the university, was not one simply based on her contract
Rather, this particular employment contract was regulated by statute and
could not have been terminated without giving the applicant reasons and
an opportunity to be heard by the council. In Kälumo v Attorney General
Brigadier Kalumo was forcibly retired by an army commander contrary to

80 Mise civil cause no 47 of 2002 (unreported).

81 Above at note 22. See also Sawerengeka v ADMARC civil cause no 231 of 1993 (unreported
82 Nathan Mpinganjira case, id.
83 Mise civil cause no 20 of 1992 (unreported).

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 LIBERATING MALAWI'S ADMINISTRATIVE JUSTICE JURISPRUDENCE 121

the requirements of the Army (Regular Force) Officers' Regulations.84 The

High Court held that this decision was subject to judicial review. In Attorney
General v Lunguzi and Another,85 section 43 of the constitution was clearly appli-
cable because the office of the inspector general of police is a creature of the
constitution86 and a person holding that office can only be removed on the
grounds prescribed under section 154(4) of the constitution.87
In State v Judicial Service Commission, ex parte EL Msusa,88 Chikopa J rightly
observed that the question of the tenure of judicial officers was one which
attracted huge public interest. Thus, the decision of the Judicial Service
Commission to retire the applicant from serving as a magistrate was subject
to judicial review under section 43. 89 The Mchawi case is an interesting one
since the employment contract in this particular case was not regulated by sta-
tute.90 However, the decision to dismiss the applicant in this case was not
made by his employer, but a stranger to the contract, the minister of edu-
cation, who made the decision believing that he had the legal authority to
do so. The same can be said of the case of Bongwe and Others v Ministry of
Education, where the applicant's jobs were terminated by the Ministry of
Education allegedly in the "public interest".91
A common feature of all these cases is that the employment contracts in
issue were wholly or partially regulated by statute or terminated by an auth-
ority in the belief that he or she had legal authority to do so.92 In conclusion,
contracts of employment that are not regulated by statute (excluding the
Employment Act and the Labour Relations Act) cannot give rise to administra-
tive action.

GROUNDS FOR REVIEW

As has already been pointed out, the constitution has introduced lawfulnes
procedural fairness, justifiability, and the giving of reasons as the four main
grounds for judicial review. One can therefore no longer plead illegality

84 Above at note 31.

85 Above at note 8.
86 Sec 154(1).
87 Sec 154(4) of the constitution lists the following grounds: incompetence, incapacitati
retirement and lack of impartiality.
88 Civil cause no 407 of 2005 (unreported).
89 It must be noted that the court in this case purported to disagree with the principle
down in the Richard W] Chtkoja case, above at note 80, but there is no inconsistenc
between the views of Chimasula J and those adopted in this case.
90 Above at note 59.
91 Civil cause no of 80 of 1997 (unreported).
92 Curiously, even in English administrative law, an employee has to prove that his
case has a sufficiently public component to warrant judicial review. See for example:
British Broadcasting Corporation, ex parte Lavelle [1983] 1 WLR 23; R v East Berkshire H
Authority, ex parte Walsh [1985] QB 152; McLaren v Home Office [1990] ICR 824;
Secretary of State for the Home Department, ex parte Benwell [1985] QB 554.

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122 JOURNAL OF AFRICAN LAW VOL 55, NO l

irrationality or procedural impropriety as a ground for judicial review in

Malawi. The following sections dwell on the grounds of procedural fairnes
and justifiability to demonstrate how the courts have interpreted them and
to point out the ways in which these grounds differ from their common
law equivalents.

Procedural fairness
Section 43 of the constitution recognizes procedural fairness as one of the four
grounds for judicial review. As observed earlier, Malawian courts have
regarded section 43 to be a mere codification of the rules of natural justice
which subdivide into the twin principles of bias and a hearing.
In Leonard Zodetsa and Others v Council of the University of Malawi,93 Mtegha J
stated that the rule against bias is "so ingrained in our law that it would be
folly to ignore it". In this case, a member of a disciplinary tribunal was one
of the people against whom the alleged acts of indiscipline were committed.
It was held that, although the member might not actually be biased, he was
an interested party and therefore not competent to participate in the disciplin-
ary proceedings. In Attorney General v Mapopa Chipeta94 Banda CJ held that "it is
a serious dereliction of duty for a judge or magistrate to preside over a case in
which he has pecuniary or proprietary interest".
But no clarity has yet emerged on the applicable test for bias. In the Mapopa
Chipeta case,95 the MSCA applied the test of a real likelihood of bias in a situ-
ation dealing with the récusai of judicial officers. An earlier MSCA decision in
Sumuka Enterprises Ltd v Registered Trustees of African Businessmen's Association
(Malawi)96 adopted the test of a reasonable suspicion of bias. Later cases
have tended to follow the latter test.97 Thus, in State v President of Malawi
and Others, for example, the Constitutional Court held that a decision will
not be allowed to stand "if there is an appearance of bias or a reasonable sus-
picion of bias".98
In the Impeachment Procedures case,99 the Constitutional Court identified
three exceptions to the rule against bias. First, the rule against bias will not
apply where the person against whom bias is alleged "is the only person
empowered to act". Secondly, the rule will not apply where a statute expressly
allows an administrator or judge to sit in a matter in which he has an interest.
Thirdly, the rule will not apply where the affected person waives it. These

93 Civil cause no 681 of 1994 (unreported).

94 MSCA civil appeal no 33 of 1994 (unreported).
95 Ibid.

96 [1981-83] 10 MLR 264, 270.

97 See for example, the Impeachment Procedures case, above at note 64.
98 Constitutional cause no 6 of 2006 (unreported).
99 Above at note 64.

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 LIBERATING MALAWI'S ADMINISTRATIVE JUSTICE JURISPRUDENCE 123

exceptions, the court was quick to note, ought to be construed restrictively in

order to ensure that affected persons are guaranteed procedural fairness.
As has been noted above, the second major aspect of natural justice is the
right to a hearing. Most of the cases on procedural fairness in Malawi have
turned on this element.100 It has been held, for example, that a hearing
must take place before the decision is made101 unless the circumstances do
not permit and the affected person is subsequently accorded a full hearing.102
In Kapile and Others v Council of the University of Malawi, the High Court ident-
ified two elements of the right to a hearing: the right to know the charges one
is facing and the right to be given an opportunity to be heard.103 A fuller defi-
nition of this right was explained in the Mbewe case:

"In that respect, the law can briefly be stated to be that the right to be heard
carries with it a right [of] the accused person to know the case which is
made against him. The accused person must, thus, know what evidence has
been given and what statements have been made affecting him. He must
then be given a fair opportunity to correct or contradict them. The judge, or
whoever has to adjudicate, must not hear or receive representations from
one side behind the back of the other."104

The principles of natural justice discussed above have largely been applied to
adjudicative decisions or to quasi-judicial proceedings affecting specific indi-
viduals and small numbers of individuals whose rights have been adversely
affected or threatened by a particular decision. The rules of natural justice,
at least in Malawi, have rarely been applied to determination cases, or cases
where no existing rights are threatened or affected, but new rights must be
determined, such as licensing or tender decisions. As pointed out earlier, pro-
cedural fairness is a concept of wider application. It can be used in public
decision making which affects large numbers of people or the general public,
such as in public inquiries (for example commissions) and the process of
enacting delegated legislation.105 These will normally be decisions which do
not threaten an existing right of a particular individual but affect the rights

100 State v Attorney General, ex parte Abdul Pillane, above at note 7; Malawi case, above at note
59; Burnet OM Mkandawire v State and Secretary for Housing, above at note 12; Leonard
Zodetsa and Others v Council of the University of Malawi, above at note 93; Lilongwe v
Attorney General mise civil cause no 48 of 1991 (unreported); Kapile and Others v Council
of the University of Malawi mise civil cause nos 47 and 48 of 1992 (unreported); Kondowe
v Malawi National Council of Sports, mise civil cause no 68 of 1993 (unreported).
101 Abdul Pillane case, id per Mkandawire J.
102 Mbewe case, above at note 7.
103 Above at note 101.
104 Above at note 7 at 415.
105 See for example: sec 4 of PAJA, above at note 48; Fedsure Life Assurance Ltd and Others v
Greater Johannesburg Transitional Metropolitan Council and Others 1999 (1) SA 374 (CC),
1998 (12) BCLR 1458 (CC) at paras 26-27; New Clicks South Africa case, above at note 28
(especially the judgment of Chaskalson CJ, Sachs J dissenting); PL Strauss An

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124 JOURNAL OF AFRICAN LAW VOL 55, NO l

and interests of the general public. Such decisions may require the use o
different procedures from those associated with the rules of natural justice
normally applicable in the adjudicative context. They may include notice
and comment procedures, negotiated rule making and public inquiries
These procedures are aimed at facilitating the participation of large numbers
of people in public decision making. Although this broader notion of pro-
cedural fairness is envisaged by section 43 of the constitution, it is yet to
find full expression in Malawian administrative law.

Justifiable reasons
As noted above, section 43(a) of the constitution also guarantees the right of
every person to administrative action "which is justifiable in relation to
reasons given". This is a novel ground for review. The common law knew
the ground of "irrationality". The idea of justifiability is a most controversial
ground because it compels courts to enter into the merits of decisions rather
than simply consider the procedural aspects of decision making. This ground
for review is therefore often criticized because it blurs the distinction
between review and appeal, which is essential to respecting the separation
of powers.
One way in which the common law sought to placate concerns around this
ground for review was by using the term "irrationality", which meant that
review would be permitted only if the decision is not rationally connected
to the purpose for which it was taken or the evidence on which it
was based. Another way is by using the amorphous benchmark called
"Wednesbury reasonableness". This standard of review asked whether the
decision was "so outrageous in its defiance of accepted moral standards that
no reasonable person who had applied his mind to the question to be decided
could have arrived at" it.106 Another strand of this benchmark was called
"symptomatic reasonableness"; this asked whether the decision was so unrea-
sonable as to point to the existence of another ground for review such as bad
faith, failure to apply the mind, bias or impropriety.107 The aim of these prin-
ciples was to limit merit-based judicial review.
The drafters of the Malawian Constitution followed their South African
counterparts in dropping the ground of "irrationality" in favour of the new
and untried ground of "justifiability".108 However, unlike South African

contd
Introduction to Administrative Justice in the United States (1989, Carolina Academic Press) at
155-89.

106 Lord Diplock in Council of Civil Service Unions and Others v Minister of the Civil Service [198
AC 374 at 410.

107 See Lord Green in Associated Provincial Picture House Ltd v Wednesbury Corporation (1
AU ER 680 at 683.
108 See sec 24(d) of the interim South African Constitution.

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 LIBERATING MALAWI'S ADMINISTRATIVE JUSTICE JURISPRUDENCE 125

courts,109 Malawian courts have not yet defined this term, opting instead to
use "Wednesbury reasonableness".110 Curiously, in some cases, while the
courts expressly refer to "Wednesbury reasonableness", they do not actually
apply this standard of review. In Peter von Knips v Attorney General, for example,
the High Court concluded from the mere fact that the Ministry of Home
Affairs had taken into account extraneous factors and ignored relevant con-
siderations when making a deportation order against the applicant that the
decision was unreasonable.111 The court did not ask whether the decision
was so "grossly unreasonable that no reasonable person would have come to
it". Neither did the High Court in the pre-1994 case of Du Chisiza v Minister of
Education, where it cited the Wednesbury standard but, nevertheless, applied
a more searching standard of review.112 The minister of education had banned
drama and other forms of entertainment conducted by outsiders in public
education institutions. The reason given for the ban was that a crush pro-
gramme was needed as a remedial measure for the temporary closure of
some schools caused by water shortages. However, it was held that the ban
would have been valid had it only concerned affected schools. As it applied
to all public schools, it was held to be unreasonable. In so holding, the
court was in fact using the proportionality analysis: that less restrictive
means should have been adopted by the minister than a total ban of
entertainment.

There appears to be no real difference between the phrase "justifiable in

relation to reasons given" and "reasonableness".113 To "justify" in common
parlance means to rationalize. It follows that section 42(b) embodies the
rationality inquiry. This inquiry requires that there must be a connection
between the ends and means: between the information before the administra-
tor and the conclusion he or she draws, the reasons given for the decision and
the decision itself or its stated objectives or purposes.114 However, the term
"justifiable in relation to reasons given" means more than mere rationality;
it also points to a requirement that good reasons should be given for a
decision. The mere existence of a rational connection between the ends and

109 See for example: Carephone (Pty) Ltd v Murcus NO 1998 (11) BCLR 1093 (LAC) paras 31-37;
Roman v Williams NO 1998 (1) SA 270 (C) 281.
110 See for example: Fayaz Ibrahim v State v Commissioner General ofMRA mise civil cause no
164 of 2003 (unreported); Peter von Knips v Attorney General, above at note 60; Abdul Pillane
case, above at note 7 (per Potani J).
Ill Above at note 60.
112 Mise civil cause no 10 oí 1993 (unreported).
113 See C Hoexter Administrative law in South Africa (2007, Juta & Company Ltd) at 303, cit
de Waal The Bill of Rights Handbook (3rd ed, 2000, Juta & Company Ltd) at 473; J Cla
and G Penford "Just administrative action" in M Chaskalson (eds) Constitutional Law
South Africa (2nd ed, original service 2001, 2005, Juta & Company Ltd) 63-i at 63-33 - 6
114 See for example: Carephone case, above at note 109; Roman v Williams, above at not
In Malawi, this term has been defined in the context of limitations to rights. See
example: Friday A Jumbe and Humphrey C Mvula v Attorney General constitutional c
nos 1 and 2 of 2005 (unreported).

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126 JOURNAL OF AFRICAN LAW VOL 55, NO i

means will not suffice. This suggests that proportionality is an essential

element of section 43 (a) of the constitution. Proportionality is a higher level
of enquiry that demands that the decision must not only be rational but
also balanced, necessary and suitable to achieve the administrator's objectives
and not impose a heavy burden on certain individuals.115 The trouble with the
proportionality inquiry is that it tends to tug the courts deep into the merits
of decision making.116 The proportionality inquiry is particularly relevant to
administrative action which affects constitutional rights or involves a penalty.
According to Craig, the affected person in such a case will not be challenging
the decision itself but the severity of the penalty imposed in relation to the
breach at hand.117

It can therefore be seen that the constitution has introduced a more rigor-
ous ground for review concerning the reasonableness of administrative action.
The ground of irrationality under the common law entailed the less intrusive
standard of rationality in decision making while the ground of justifiability
entails the proportionality inquiry in appropriate cases. While there is an
intrinsic danger in the courts impeaching the merits of the decisions of
administrative authorities, the constitution has ushered in a new era in
which public decisions ought to be justified in terms of lawfulness, procedural
fairness and the reasons given, rationality and, where relevant, the proportion-
ality of the decision.

CONCLUSION

The 1994 Malawian Constitution introduced fundamental changes to Malaw

administrative law, and its conceptual foundation and grounds for judici
review. Courts now have express powers to review any law, act or conduct of
government. The doctrine of constitutional supremacy, not parliamentar
supremacy, guides judicial review and the new grounds of review are lawful-
ness, procedural fairness, the giving of reasons and justifiability. These
grounds offer litigants more avenues for challenging the exercise of pub
powers than was the case under the common law. The source of administr
tive law is the constitution, not Order 53 of the Rules of the Supreme Court
of England. The relevance of the common law is now limited to informin
the interpretation of the constitution.

115 See Roman v Williams, id at paras 281-82; Craig Administrative Law, above at note 18
para 166; JR de Ville Judicial Review of Administrative Action in South Africa (2003
Butterworths) at 203. Again, in Malawi this term has been defined in connection wit
the limitations inquiry under sec 44(2) of the constitution. See for example: Magg
Kaunda v R criminal appeal no 8 of 2001 (unreported); JZU Tembo and Kate Kainja
Attorney General civil appeal case no 50 of 2003 (unreported).
116 See for example: Rustenburg Platinum Mines v CCMA 2007 (1) SA 576 (SCA); Trin
Broadcasting (Ciskie) v Independent Communications Authority of SA 2004 (3) SA 346 (SCA).
117 Craig Administrative Law, above at note 18 at 624.

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 LIBERATING MALAWI'S ADMINISTRATIVE JUSTICE JURISPRUDENCE 127

Thus, in order for a person to apply for judicial review, he or she has to rely
on section 43 of the constitution and prove that the impugned conduct con-
stitutes administrative action. The case law discussed in this article demon-
strates that Malawian courts have not fully grasped the extent to which the
constitution has altered the country's administrative law. As a consequence,
the full potential of the right to administrative justice remains untapped.

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