Industrial Relations Court chides AG’s office for failing thrice to attend court proceedings

Attorney General Thabo Chakaka Nyirenda

* For the laissez faire attitude when executing their work at the expense of tax payers resources

* Court services and orders must always be respected by the State

* I would urge officers responsible in the office of the Attorney General to ensure that this tendency is checked and put to rest

* Orders Government to pay Brian Banda over K103 million as compensation for unfair dismissal

By Duncan Mlanjira

In the matter in which journalist Brian Banda sued the government over unfair dismissal as State House press officer, the Attorney General’s office snubbed Industrial Relations Court (IRC) three times, forcing the case to proceed in their absence.

Delivered in chambers on December 22, 2023 in Blantyre, the court has since awarded Brian Banda MK103,316,418 as compensation for unfair dismissal and severance allowance and government has been ordered to pay within 30 days.

“The court would like to bemoan the tendency by counsel representing the [Attorney General’s office] for the laissez faire attitude when executing their work at the expense of tax payers resources,” said IRC deputy chairperson, Peter Kandulu.

“The service of the court’s documents were served on the representative of the State and evidence of receipt or acknowledgement was tendered in court.

“However, despite receipt they did not appear in court for several times. I would urge officers responsible in the office of the Attorney General to ensure that this tendency is checked and put to rest.

“Court services and orders must always be respected by the State. This would set a good example to all lawyers in this country since the Attorney General is head of the bar.”

The IRC Form 1 was filed on September 28, 2022 and was served to the AG’s office on October 26, 2022 at 14:45hrs, which was duly received as it was stamped with an official stamp acknowledging service.

But the AG’s office failed to file a reply within the prescribed period by law, hence Brian Banda’s counsel, Mauya Msuku obtained a default judgement on the November 7, 2022.

A notice of assessment of compensation was duly issued and served on the State on November 7, 2022 from which the AG filed a motion to set aside the default judgement.

The motion was scheduled to be heard on June 20, 2023 but on the date scheduled for hearing the motion, the AG or his legal representative did not appear in court and no reason was given to the court on their absence — thus the motion was dismissed.

The court issued a notice for the hearing of the assessment of compensation trial, which was served on August 11, 2023 at 13:50hrs and service was acknowledged by C. Chitsonga on behalf of the Attorney General.

The Attorney General’s Chambers filed an exparte motion for a stay of proceedings pending hearing of an application to set aside the default judgement to be heard on August 25, 2023 to hear the assessment of damages.

When the motion was called, the Attorney General’s office was not present in court while counsel for Brian Banda was present who addressed the court that this was the third time that the State was served or they initiated court proceedings but on the date scheduled, they never appeared or communicated with the court on the reasons for their failure to attend court’s proceedings.

Counsel for Brian Banda implored the court to dismiss the motion and proceed with the hearing of the assessment of damages which was the first to be issued before the motion.

The court was presented with evidence that the AG’s office was served with the said notices and having been satisfied that the AG was served and he acknowledged receipt of service, ordered the assessment of damages proceedings to proceed.

The court heard that Brian Banda got employed on August 7, 2020 on a three-year fixed contract and following his dismissal, his last salary was in February 2022.

He told the court that he was entitled to MK10,599,924 annually which as per article viii (1) of the contract was subject to increment at the end of every year and he was also entitled to a motor vehicle Toyota Fortuner at a daily rate of MK25,000.

He further had an average of 10 to 15 days out-of-duty assignments for the month for which he was entitled to MK50,000 for local assignments and US$450 per day for external trips.

He told the court that these allowances were exclusive of expenses which were borne by the State and that on average, he would put these off-duty station assignments as half internal and half external.

As per close XI (2) of his contract, Brian Banda was expected to receive  15% of his total salary as gratuity at the end of his contract.

As he was not cross-examined since the State had exercised their right not to attend the court proceedings despite receipt and acknowledgement of court services, the court regarded the evidence presented as the true version of the fixed contract agreement between Banda and the State “since the evidence of the applicant remains uncontroverted”.

Thus the court accepted Brian Banda’s application to be compensated the total sum award of MK103,316, 418 being the total sum of all the proposed awards as presented in court.