Rural primary school teachers in Machinga and Balaka districts ex parte and others v S and Another (Miscellaneous Civil Application 4 of 2015) [2015] MWHC 518 (20 February 2015)

errr Tbe ee RE IN THE HIGH COURT OF MALAWI _ ZOMBA DISTRICT REGISTRY _ MISCELLANEOUS CIVIL APPLICATION NO. 4 OF 2015 . BETWEEN EX PARTE ELSIE JEKE AND OTHER CONCERNED RURAL PRIMARY SCHOOL TEACHERS IN MACHINGA AND BALAKA DISTRICTS _......ecsscecereeesneereeeeess APPLICANTS -and- THE STATE AND THE MINISTRY OF EDUCATION, SCIENCE AND TECHNOLOGY .....ccccssecrnesccseseceensscecsensnnauceuuennens RESPONDENTS CORAM: HON. JUSTICE ZIONE NTABA Mr. T. Chirwa, Counsel for the Applicants Mr D. Banda, Court Clerk RULING 1.0 APPLICATION 1.1 On 13" February, 2015 the Applicants filed and made an ex parte application for leave to apply for judicial review under Order 53 of the 1999 Rules of the Supreme Court. The matter was heard on 18% February, 20015. 1.2 The application before me was a summons for leave to apply for judicial review which was supported by an affidavit as well as skeleton arguments. The Applicant’s stated that they are teachers at various primary schools in Machinga and Balaka districts. They argued that in or about June, 2010, the Respondents introduced a rural teachers’ hardship allowance aimed at motivating teachers in rural areas in the country. The Applicants argue that in Machinga and Balaka districts the allowance is being discriminately applied as some schools teachers are receiving whilst others are not. They have further taken steps to have the matter resolved by the Respondents but no action has been taken except transfers which they also want this court to stop. Ex parte Elsie Jeke et al 1 2.0 1.3 1.4 The Applicants submissions are that the decision of the Respondents, that is, the Ministry of Education, Science and Technology or their agents or those working under their charge in refusing or neglecting to ignoring to implement the hardship allowance payable to the Applicants despite the fact that the Applicants fall within the eligibility criteria is contrary to sections 20 and 31 of the Constitution as well as contrary to sections 7 and 8 of the Public Services Act and is Wednesbury unreasonable. Furthermore, that the decisions to post some of the Applicants is contrary to section 49 of the Labour Relations Act as well as the Malawi Public Service Regulations of 2010. The Applicants prayed that the court grant leave for judicial review as well as orders stopping the transfer of Elsie Jeke and Golden Makunganya to other schools. Furthermore, they prayed for an order compelling the Respondents to immediately and forthwith implement the payment of the hardship allowance and a declaration that the posting of the above two Applicants is illegal, LAW AND FINDINGS 2.1 2.2 2.3 The legal principles regarding an application for leave for judicial review are found in Order 53 1.3 of the Rules of the Supreme Court which states that no application for judicial review shall be made unless leave of the Court has been obtained. Furthermore the order also sets down the form in which an application for judicial review should be brought. Upon examination of the documents in support of the application, this court is satisfied that the Applicants have satisfied the dictates of Order 53 1.3 of the RSC on seeking leave for judicial review. Furthermore, this court finds that the Applicants have sufficient interest in the matter in which the application relates to as they are the ones affected by the non- payment of the hardship allowance by the Respondents as well as the posting instructions. The court has to then be satisfied that the requirements of 0.53 r. 4(1) and (2) on the period for which an applicant can move a court for leave to undertake judicial review have been satisfied. It was noted that the hardship allowance was introduced in 2010 but the dispute in terms of its implement has been under discussion and with the Respondents from 2014 until September, 2014 when the Applicants were informed that they will not be included on the list to receive hardship allowances. Furthermore, the notice of posting was made and communicated on 6m November, 2014. Thereby the court is satisfied that the Applicants have also adhered to the prescribed time limits to three (3) months to make their application. Furthermore, even if the time limit had been breached, this court would have had to take into consideration the fact that the courts were on strike from 10' November, 2014 to 5“ January, 2015. 3.0 2.3 The case of Ombudsman v Malawi Broadcasting Corporation, f1999] MLR 329 held that - “applications to move for judicial review are made ex parte to a single Judge, The application may be determine without a hearing unless a hearing is requested. This procedure enables the court to deal with such matters more conveniently, expeditiously and cheaply. Leave will be granted if the court, on the materials available before it, is satisfied that there iy an arguable case for granting the relief claimed by the applicant. At this stage there is no need for the court to go into the matter in depth.” CONCLUSION 3.1 I therefore make the following orders — 3.1.1 the Applicants are granted leave to apply for judicial review and that the matter be expedited. And that all processes should have their times abridged due to the urgency of the matter; the matter be expedited and that all processes should have their times abridged due to the urgency of the matter.; the posting with immediate effect of Elsie Jeke and Golden Makunganya is hereby stopped until the determination of the matter; and the issue of the immediate payment of hardship allowances is a matter which is within the matter as such payment shall await the determination of the matter. Made in Chambers on 20 day of February, 2015 at Zomba. 27..30. V Ntaba JUDGE