By Draxon Maloya
Malawi law society has cleared up the confusion surrounding the High Court judgement delivered on public holiday (Easter Monday morning ) concerning the South African lawyers who wanted to represent the Malawi Electoral Commission (MEC) in the on going presidential election appeal case.
MEC‘s Defence council applied for the South African lawyers to be attending court proceedings from Malawi High Commission in Pretoria with the use of modern technology in what is described as video teleconferencing, but only for the High Court judge, Andrew Nyirenda to throw out the application hence putting MEC in an awkward position.
And here below is MLS’s statement released larer on Monday signed by the society’s secretary, Martha Kaukonde.
FROM: Malawi Law Society-MLS
Dear learned colleagues,
Kindly note that the petitions for admission of the 2 South African lawyers in the Presidential Election Appeal Case were called before the Honourable the Chief Justice this morning. Both petitions have been dismissed.
Because of the absence of the Petitioners, we dealt with the matter on the basis of section 25 (1)(c) LELPA, the requirement to “come to Malawi” as a first issue. That provision has been construed as requiring physical presence of the petitioning lawyers within the territory of the Republic of Malawi not remotely during the presentation of the petitions. We looked at the definition of territory in section 3 of the Constitution- the Bar and the Bench agreed that an embassy (the Petitioners were at Malawi embassy in South Africa remotely following the proceedings) is not a territory though it enjoys some diplomatic immunities.
Through Counsel, the petitioners applied for waiver of the requirement for physical presence of the Petitioners given the travel restrictions on account of corona virus pandemic. They asked that the Petitioners be present through video~conferencing because of Ord. 1 r. 5 CPR-which encourages the use of technology.
On our part as MLS we objected the request for waiver given that section 25(c) as construed is a statutory requirement laying background to the signature of the roll and the taking of oath under under section 29 if an admission were to be granted. So while Ord.1 r.5 CPR encourages use of technology, it is is subsidiary legislation not directly consistent with the statutory scheme under the LELPA.
The Honourable the Chief Justice has said, at law, he had no Petitioners for admission before him. He thus rejected the Petitions that way. He made no order as to costs.
Kindly note and be advised as to events in Court today.
Best regards. Thank you.