Malawi Law Society objects to the admission of SA lawyers to join the Constitutional Appeal case

Maravi Express

The Malawi Law Society (MLS) has objected the Malawi Electoral Commission’s application to admit Dumisa Buhle Ntsebeza SC to be part of the legal team for the Constitutional Appeal Cause No. 1 of 2020.

In the sworn statement done in front of the High Court of Malawi, MLS secretary, Martha Kaukonde said, among other consideration, that while the Ntsebeza may have satisfied the professional qualification criteria in section 25(1)(a)-(e) of the Legal Education and Legal Practitioners Act, the transaction having involved the Electoral Commission, a public body, is illegal for non-compliance with public procurement laws. 

MLS says, it is therefore contrary to public interest that transaction be approved in the judicial process now before this Honourable Court as the underlying basis for admission of the Applicant in a specific cause.

And the Society also asks the Court to take judicial notice of COVID-19 and the state of the lockdown in South Africa from where the applicants are coming from.

MLS says it has examined the petition of Ntsebeza, its verifying sworn statement and the sworn statement of lawyer Tamando Chokotho in support of the application for the admission of the foreign lawyer to join the Constitutional Appeal case involving MEC, a public entity created under the Constitution of the Republic of Malawi.

“On 10th March 2020, the Applicant — through a firm of Legal Practitioners Messrs Churchill & Norris — presented a request to the Law Society for certification of the Applicant’s compliance with the qualification criteria in section 25 of the Legal Education and Legal Practitioners Act,” says Kaukonde in the statement.

“In exercise of its administrative function, my office examined the application then and duly issued a compliance certificate as shown by exhibit TLC 4 in the Sworn Statement of learned Counsel Tamando Lama Chokotho.

“On Friday 3rd April 2020, the Applicant served the Law Society with a formal application for admission of the Applicant returnable before this Court on 8th April 2020. The formal application has additional information which was not in the application that was submitted on 10 March 2020.”

Kaukonde further says that on 11th March 2020, the Public Procurement and Disposal of Assets Authority issued a No Objection to Single Sourcing for the Procurement of Legal Services in favour of the Electoral Commission at the price of $788,500 as shown by exhibit TLC 3 in the sworn statement of lawyer

“I notice that:

(i) the reason for the issue of such single sourcing method is not disclosed on the face of exhibit TLC 3 or at all on the record of the matter before Court as served on MLS.

(ii) exhibit TLC 3 and the entire record before the Court as served on MLS does not provide any proof of vetting of the transaction by the Anti-Comrption Bureau.

(iii) exhibit TLC 3 and the entire record before the Court as served on MLS does not disclose compliance of the quorum and minute taking requirements of the Authority prior to the issuance of exhibit TLC 3.

(iv) exhibit TLC 3 discloses that the Authority “relied on the professional judgment” of the Electoral Commission in determining the “reasonableness of the lump sum fee charged’ by the Applicant.

“In relation to my observation in paragraph 7(iv) above, I state that the criteria for determining solicitor-own client fees for legal services is set out in the Legal Education and Legal Practitioners Act. 

“The Malawi Law Society as a professional body regulating legal services was not consulted in relation to the reasonableness of the fee of $788,500 the work before the Supreme Court.

 

“I notice in paragraph 15 and 16 of the founding affidavit in support of the application for this admission that the appeal case before the Supreme Court in Constitutional Appeal Number I of 2020 between Professor Arthur Peter Mutharika and the Electoral Commission v. Dr Saulos Klaus Chilima and Dr. Lazarus McCarthy Chakwera is set for hearing before the Supreme Court on 15ft April 2020.

“I am aware that under the Legal Education and Legal Practitioners Act it is illegal and a criminal offence for any person who is not admitted to the Malawi Bar to do any act required to be done or charged for by a Legal Practitioner,” says Kaukonde’s statement.

As the appeal case before the Supreme Court in Constitutional Appeal Number 1 of 2020 is already set for hearing on 15th April 2020, the MLS takes cognizance that the only work to be done by the applicants largely relates to perusing the record of appeal and the written arguments and case authorities exchanged and filed in relation to the appeal and presenting the appeal before the Supreme for one hour or thereabouts on 15th April 2020 under Practice Direction Number 1 of 2018.

“On this account, the Law Society states that the sum of S788,500 is an unreasonably exorbitant charge on the public purse for the work to be done by the Applicant.

“In relation to paragraph 7(i), I state that as at 11th March 2020 when the Public Procurement and Disposal of Assets Authority issued exhibit TLC 3, the Law Society had 440 duly licenced members. 

“This includes Legal Practitioners with substantial experience on Malawi electoral laws and some of whom are Senior Counsel at the Malawi Bar. 

“By reason whereof I verily believe that there is no local shortage of technical capability or capacity to fulfill the procurement requirement for legal services in the appeal case concerned.

“Further I observe that the appeal was more than a month away on 6th- 11th March 2020 when exhibit TLC 3 was generated. There was thus no emergency need for the use of single-source method in procuring foreign legal services on the part of the Electoral Commission.

“THEREFORE, the Malawi Law Society objects to the admission of the Applicant in the specific cause applied for,” said the sworn statement from MLS.