SADC loses appeal over unlawfully terminated contract with top tribunal official

20 August 2021 · Carmel Rickard

Claims by senior Malawian judge, Charles Mkandawire, that his position with the Southern African Development Community’s now defunct tribunal was unlawfully terminated have again been upheld. Three judges of the SADC Administrative Tribunal’s appeal panel have dismissed an appeal brought by SADC, testing last year’s decision in favour of Judge Mkandawire, the original tribunal’s first registrar. After SADC closed down the tribunal at the instance of Zimbabwe’s former President, Robert Mugabe, Judge Mkandawire ultimately returned to Malawi where he is now a member of the country’s apex court.

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The Southern African Development Community, having caved in to pressure from Zimbabwe’s former president, Robert Mugabe, to close down its Windhoek-based tribunal, has now been forced to face up to some of the financial and reputational consequences.

A senior staffer of the now-defunct SADC Tribunal, Judge Charles Mkandawire, litigated against SADC, claiming that his second contract with the tribunal was unlawfully terminated and that he should be paid compensation.

The SADC Administrative Tribunal (SADCAT) heard Judge Mkandawire’s claim last year and found in his favour. SADC appealed, however, and that appeal has now been finalised, with SADCAT’s appeals panel once again finding in favour of Judge Mkandawire.

Demise

Judge Mkandawire was the SADC Tribunal’s first registrar and he had a four-year contract, due to end on 30 November 2012. He applied for his contract to be renewed and was informed that it was approved for a further four years.

However, he was told some time later that his contract would only last until ‘the completion of the review of the role of the SADC Tribunal’. This was a reference to the ‘review’ that led to the demise of the tribunal at the prompting of Mugabe, apparently outraged at the decisions of the tribunal on Zimbabwe’s land seizures.

Despite the objections of Judge Mkandawire, he was ultimately given three months’ notice. His objections to the way he had been treated eventually led to a hearing before SADCAT which found that his contract had indeed been unlawfully terminated.

Mediation

In its decision last year, SADCAT ordered that, by way of compensation, he should be paid the amount agreed during an earlier attempt at mediation, less the judge’s earnings once he returned to Malawi after the original tribunal was closed. SADCAT also ordered that he should be paid interest of 10% from 30 November 2016.

SADC appealed to a SADCAT appeal panel of three judges and the matter was argued in March.

The appeal panel’s presiding officer, Judge Mbutfo Mamba of Eswatini, noted that SADC only decided more than a year into the (second) contract, that the contract ‘should be considered as having been extended until the completion of the review of the role of the SADC Tribunal’. Judge Mamba said the words used here were ‘telling’ and suggested a new stance or position.

‘Unmitigated breach’

‘That was tantamount to a unilateral imposition of a new contract …. In effect, Council said: “We accept that your contract was renewed for four years, but we shall not honour it but rather we shall treat or view it as having been extended for the duration of the relevant review.”

‘That is a clear and unmitigated breach of contract and is impermissible and unlawful,’ Judge Mamba said.

Another issue argued by SADC’s legal team was that Judge Mkandawire had ‘rendered himself redundant by declining to be redeployed to the secretariat’.

Skills

On this argument Judge Mamba, wrote: ‘I intend no disrespect to counsel if I do not spend as much time and space [on] this point as he did. The short answer … is that there was no post that was ever offered to [Mkandawire] at the secretariat. Therefore, there was nothing for him to decline. … Perforce, this point must fail’.

A second member of the appeal panel, Zambian judge Fulgency Chisanga, said that she agreed with the outcome, but that she reached it on different grounds. Among other issues, she also touched on the question of the ‘offer of deployment’ made to Judge Mkandawire and his refusal of the offer ‘considering his profile and qualifications’.

‘He cannot be faulted for this decision,’ wrote Judge Chisanga, ‘because the offer was vague’ and did not comply with the terms identified before mediation. She also pointed out that an international organisation was obliged to do its ‘utmost’ to find a post that matched the skills and level of responsibility of an official faced with redundancy.

Obligation

In this case, SADC had failed to show that it did its ‘utmost’ to find alternative suitable employment for Judge Mkandawire. Whenever such an organisation restructured its institutions ‘it bears an obligation to observe the rights and safeguards of its staff’, she noted. ‘Also, SADC bore a duty of care to [Judge Mkandawire] and was required to act in good faith in proposing to reassign him. This it did not do.’ She thus found SADC’s argument that Judge Mkandawire had ‘rendered himself redundant’, was ‘unsustainable’.

The third member of the appeal panel, Judge Pedro Sinai Nhatitima of Mozambique’s supreme court, agreed that the appeal should be dismissed.

Media in Malawi quote local labour law experts commenting on the outcome: ‘It teaches SADC to respect the terms and regulations governing employment between SADC and its employees.’

Carmel Rickard

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