1 See sec 2(1)(i) of the 1966 constitution.

2 See Nzunda, MS “The quickening of judicial control of administrative action in Malawi 1992–1994” in Phiri, KM and Ross, KR (eds) Democratization in Malawi: A Stocktaking (1998, CLAIM) 283Google Scholar.

3 1994 constitution, sec 12(vi).

4 Id, sec 12(ii).

5 Id, sec 12(iii).

6 [1994] 18 MLR 72.

7 This dictum has been reiterated in a number of other judgments. See for example: Mbewe v Registered Trustees of Blantyre Adventist Hospital [1997] 20(1) MLR 403 at 416–17; State v Attorney General, ex parte Abdul Pillane constitutional case no 6 of 2005 (unreported) (judgment of Mkandawire J).

8 Attorney General v Lunguzi and Another [1996] 19 MLR 8 at 11.

9 MCSA civil appeal no 18 of 2000 (unreported).

10 In the Botswana case of State v Eugene Moyo and Another civil cause no 6 of 1988 (unreported), Hallchurch J defined inherent powers as “those powers reasonably necessary for the Administration of Justice and … powers over and beyond those explicitly granted in the Constitution”: quoted in Nsereko, DDNConstitutional Law in Botswana (2002, Pula Press) at 306Google Scholar.

11 See for example: Mhango and Others v Council of the University of Malawi [1993] 16(2) MLR 605; Taulo and Others v Attorney General and Circle Plumbing Ltd civil cause no 152 of 1993 (unreported); Buliyani v Malawi Book Service [1994] 17 MLR 24. For a discussion of the limits of ultra vires as a basis for judicial review, see Cane, PAn Introduction to Administrative Law (1996, Clarendon Press) at 348–52Google Scholar; Breitenbach, A “The justification for judicial review” (1992) 8 South African Journal on Human Rights 512Google Scholar.

12 However, courts have continued to consider these as the grounds for judicial review in Malawi. See for example Mobile Malawi Ltd v MACRA civil cause no 1365 of 2005 (unreported); State v Attorney General, ex parte Abdul Pillane, above at note 7 (especially the judgments of Potani J and Mkandawire J); State v Rigtone Nzima and Malawi Electoral Commission misc civil cause no 11 of 2004 (unreported); Fayaz Ibrahim v State and Commissioner General of MRA misc civil cause no 164 of 2003 (unreported); Burnet OM Mkandawire v State and Secretary for Housing misc civil cause no 148 of 2003 (unreported).

13 For comparative jurisprudence, see Pharmaceutical Manufacturers Association of SA: In re: ex parte President of the Republic of South Africa 2000 (2) SA 674 (CC) at para 33.

14 See secs 4, 5, 8 and 48(2) of the constitution.

15 See further discussion under the section headed “constitutional legality” below.

16 See for example Malawi Law Society and Others v State and Others misc civil cause no 78 of 2002 (unreported); Mkandawire and Others v Attorney General [1997] 20(2) MLR 1 at 11.

17 The case of Ridge v Baldwin [1964] AC 40 is credited with abolishing the application of natural justice rules based on a classification of functions, while the introduction of the broader notion of the duty to act fairly is ascribed to the case of In re HK (An Infant) [1967] 2 QB 617.

18 Craig, PPAdministrative Law (2003, Sweet & Maxwell) at 409Google Scholar; Hoexter, CThe New Constitutional and Administrative Law (2002, Juta & Company Ltd) at 190 and 206Google Scholar.

19 Ibid.

20 Determination decisions relate to applications for a new right to be granted, such as licensing decisions, tender awards, or social security or insurance eligibility decisions. See Mureinik, E “Reconsidering review: Participation and accountability” (1993) Acta Juridica 35 at 36Google Scholar.

21 See Carephone (Pty) Ltd v Marcus NO 1998 (11) BLLR 1093 (LAC) at para 32; Roman v Williams NO 1998 (1) SA 270 (C).

22 State v Malawi Development Corporation, ex parte Nathan Mpinganjira misc civil cause no 63 of 2003 (unreported); R v JZU Tembo and Others criminal case no 2 of 1997 (unreported).

23 [1996] 19 MLR 80.

24 Id at 87.

25 Id at 88.

26 See also In the Matter of the Ministry of Finance, ex parte SGS Malawi Ltd misc civil application no 40 of 2003 (unreported); DDP v Lilongwe Chief Resident Magistrate's Court, ex parte Dr Cassim Chilumpha misc civil cause no 315 of 2005 (unreported); State v The President and Others, ex parte Dr Cassim Chilumpha misc civil cause no 22 of 2006 (unreported); Rigtone Nzima case, above at note 12.

27 In Germany, the concept of “administrative act” has been used since the early 19th century. Initially, it was understood as an “authoritative pronouncement of the administration which in an individual case determines the rights of a subject”. Its current definition, as reflected in sec 35 of the Law of Administrative Procedure of 1976, reads: “Administrative act is every order, decision, or other sovereign measure taken by an authority for the regulation of a particular case in the sphere of public law and directed at immediate external legal consequences”. See Singh, MPGerman Administrative Law in Common Law Perspective (1985, Springer-Verlag) at 32–40Google Scholar. In Australia, sec 3 of the Administrative Decisions (Judicial Review) Act 1977 provides that a reviewable decision is one which is “of an administrative character proposed to be made, or required to be made, as the case may be … under an enactment”; see Douglas, RDouglas and Jones's Administrative Law (2002, The Federation Press) at 337–43Google Scholar.

28 See for example President of the RSA v SARFU (1999) 10 BCLR 1059 (CC); Fedsure Life Assurance v Greater Transitional Metropolitan Council 1998 (12) BCLR 1458 (CC); New Clicks South Africa (Pty) Ltd v Shabalala-Msimang NO 2005 (2) SA 530 (C); Sidumo and Another v Rustenburg Platinum Mines Ltd and Others 2007 (12) BLLR 1097 (CC).

29 See Hoexter, C “‘Administrative action’ in the courts” (2006) Acta Juridica 303Google Scholar.

30 See for example Malawi Broadcasting Corporation v Ombudsman misc civil cause no 53 of 1999 (unreported). See also Air Malawi Ltd v Ombudsman MSCA civil appeal no 1 of 2000 (unreported).

31 [1995] 18(2) MLR 669.

32 Above at note 9.

33 Misc application no 47 of 1992 (unreported).

34 An approach that looks to the functionary rather than to the function is also reflected in Fayaz Ibrahim v State and Commissioner General of MRA misc civil cause no 164 of 2003 (unreported).

35 [1993] 16(2) MLR 666 at 673.

36 Above at note 23. This was a proper case to be decided on the meaning of administrative action, but the court proceeded to determine it on the basis of Order 53, even though the principles it enunciated are valid for the meaning of this term.

37 Id at 91.

38 Above at note 26.

39 See for example Umfolozi Transport (Edms) Bpk v Minister van Vervoer [1997] 2 B All SA 548 (SCA); Transnet Ltd v Goodman Brothers (Pty) Ltd 2001 (1) SA 853 (SCA); Logbo Properties CC v Bedderson NO 2003 (2) SA 460 (SCA); R v Legal Aid Board, ex parte Donn & Co [1996] 3 All ER 1.

40 [1996] 19 MLR 109.

41 Id at 111. For a similar view, see Mangani v Trustees of Malamulo School of Medical Sciences civil cause no 356 of 1992 (unreported).

42 Above at note 23 at 91.

43 R v Panel on Take-overs and Mergers, ex parte Datafin Plc [1987] QB 815 at 847 paras A–B (per Lloyd LJ).

44 Examples include the Datafin case, id at 826 para C.

45 Above at note 40. See also Sumaili and Others v Michiru View Secondary School civil cause no 2702 of 1998 (unreported).

46 See for example: R v Advertising Standards Authority, ex parte The Insurance Services plc [1990] COD 42; Bank of Scotland v Investment Management Regulatory Organisation Ltd 1989 SLT 432; R v Financial Intermediaries Managers and Brokers Regulatory Association, ex parte Cochrane [1990] COD 33; R v BBC and ITC, ex parte Referendum Party [1997] COD 459; Aston Cantlow, Wilmcote and Billesley Parochial Church Council v Wallbank [2001] 3 WLR 1323; Dawnlaan Beleggings (Edms) Bpk v Johannesburg Stock Exchange 1983 (3) SA 344 (W); Coetzee v Comitis 2001 (1) SA 1254 (C); AAA Investments (Pty) Ltd v Micro Finance Regulatory Council 2006 (11) BCLR 1255 (CC).

47 Criminal application no 1 of 1995 (unreported).

48 Sec 1(ff) of South Africa's Promotion of Administrative Justice Act 3 of 2000 (PAJA) also excludes a decision to institute or continue a prosecution from the scope of administrative action.

49 Above at note 26.

50 MSCA civil appeal no 22 of 1996 (unreported).

51 Parliamentary privileges are intended to protect the legislative competence of Parliament. See Attorney General v Nseula and MCP [1997] 20(2) MLR 50 at 52–53; Attorney General v Mapopa Chipeta MSCA civil appeal no 33 of 1994 (unreported).

52 See for example Tembo and Kainja v Speaker of the National Assembly MSCA civil appeal no 1 of 2003 (unreported), confirmed in later proceedings of the same case in MSCA civil appeal no 23 of 2003 (unreported); Mkandawire case, above at note 16.

53 Ibid.

54 Id at 12.

55 For comparative jurisprudence, see President of the Republic of South Africa v South African Rugby Football Union 2000 (1) SA 1 (CC); Pharmaceutical Manufacturers case, above at note 13.

56 Civil cause no 60 of 1997 (unreported).

57 Id at 8.

58 Above at note 8.

59 Misc civil cause no 82 of 1997 (unreported).

60 Misc civil cause no 11 of 1998 (unreported).

61 Chap 15:03 of the Laws of Malawi.

62 These are the powers conferred on these bodies in secs 7–9 of the constitution respectively.

63 For scholarship on constitutional legality, see: Hoexter The New Constitutional and Administrative Law, above at note 18 at 83–85; Michelman, FI “The rule of law, legality and the supremacy of the constitution” in Chaskalson, M et al. (eds) Constitutional Law of South Africa (2nd ed, 2005, Juta & Company Ltd) 11-i at 11-1 – 11-14Google Scholar.

64 Constitutional cause no 13 of 2005 (unreported).

65 MSCA civil appeal no 28 of 1998 (unreported).

66 Above at note 56.

67 Misc civil cause no 155 of 1993 (unreported).

68 Above at note 65. However, Unyolo J also held, obiter, that the resolution was passed without hearing the respondents. The basis on which the judge arrived at this conclusion is difficult to establish.

69 SARFU case, above at note 28 at para 148.

70 Pharmaceutical Manufacturers case, above at note 13 at para 85.

71 See for example: Mbewe case, above at note 7; Kalinda v Limbe Leaf Tobacco Ltd civil cause no 542 of 1995 (unreported); HH Ngwenya and FG Gondwe v Automotive Products IRC matter no 180 of 2000 (unreported).

72 Ibid.

73 Id at 417.

74 Ibid.

75 Chisa case, above at note 23; SGS Malawi case, above at note 26.

76 Above at note 71.

77 See for example: sec 31 which provides that every person has the right to “fair and labour practices” and guarantees organizational rights and the right to fair wages and equal remuneration; and sec 29 which provides that every person has the right “freely to engage in economic activity, to work and to pursue a livelihood anywhere in Malawi”.

78 Employment Act No 16 of 2000; Labour Relations Act No 16 of 1996.

79 In Guwende v AON Malawi Ltd misc civil cause no 25 of 2000 (unreported), it was held that termination of employment by an employer by giving contractual notice without reasons, does not amount to an unfair labour practice. However, sec 57(1) of the Employment Act suggests that employment can only be terminated on grounds of operational requirements or incompetence. Furthermore, this section expressly recognizes the right of an employee to a hearing before being dismissal.

80 Misc civil cause no 47 of 2002 (unreported).

81 Above at note 22. See also Sawerengeka v ADMARC civil cause no 231 of 1993 (unreported).

82 Nathan Mpinganjira case, id.

83 Misc civil cause no 20 of 1992 (unreported).

84 Above at note 31.

85 Above at note 8.

86 Sec 154(1).

87 Sec 154(4) of the constitution lists the following grounds: incompetence, incapacitation, retirement and lack of impartiality.

88 Civil cause no 407 of 2005 (unreported).

89 It must be noted that the court in this case purported to disagree with the principle laid down in the Richard WJ Chikoja case, above at note 80, but there is no inconsistency between the views of Chimasula J and those adopted in this case.

90 Above at note 59.

91 Civil cause no of 80 of 1997 (unreported).

92 Curiously, even in English administrative law, an employee has to prove that his or her case has a sufficiently public component to warrant judicial review. See for example: R v British Broadcasting Corporation, ex parte Lavelle [1983] 1 WLR 23; R v East Berkshire Health Authority, ex parte Walsh [1985] QB 152; McLaren v Home Office [1990] ICR 824; R v Secretary of State for the Home Department, ex parte Benwell [1985] QB 554.

93 Civil cause no 681 of 1994 (unreported).

94 MSCA civil appeal no 33 of 1994 (unreported).

95 Ibid.

96 [1981–83] 10 MLR 264, 270.

97 See for example, the Impeachment Procedures case, above at note 64.

98 Constitutional cause no 6 of 2006 (unreported).

99 Above at note 64.

100 State v Attorney General, ex parte Abdul Pillane, above at note 7; Mchawi case, above at note 59; Burnet OM Mkandawire v State and Secretary for Housing, above at note 12; Leonard Zodetsa and Others v Council of the University of Malawi, above at note 93; Lilongwe v Attorney General misc civil cause no 48 of 1991 (unreported); Kapile and Others v Council of the University of Malawi misc civil cause nos 47 and 48 of 1992 (unreported); Kondowe v Malawi National Council of Sports, misc civil cause no 68 of 1993 (unreported).

101 Abdul Pillane case, id per Mkandawire J.

102 Mbewe case, above at note 7.

103 Above at note 101.

104 Above at note 7 at 415.

105 See for example: sec 4 of PAJA, above at note 48; Fedsure Life Assurance Ltd and Others v Greater Johannesburg Transitional Metropolitan Council and Others 1999 (1) SA 374 (CC), 1998 (12) BCLR 1458 (CC) at paras 26–27; New Clicks South Africa case, above at note 28 (especially the judgment of Chaskalson CJ, Sachs J dissenting); Strauss, PLAn Introduction to Administrative Justice in the United States (1989, Carolina Academic Press) at 155–89Google Scholar.

106 Lord Diplock in Council of Civil Service Unions and Others v Minister of the Civil Service [1985] 1 AC 374 at 410.

107 See Lord Green in Associated Provincial Picture House Ltd v Wednesbury Corporation (1947) 2 All ER 680 at 683.

108 See sec 24(d) of the interim South African Constitution.

109 See for example: Carephone (Pty) Ltd v Murcus NO 1998 (11) BCLR 1093 (LAC) paras 31–37; Roman v Williams NO 1998 (1) SA 270 (C) 281.

110 See for example: Fayaz Ibrahim v State v Commissioner General of MRA misc civil cause no 164 of 2003 (unreported); Peter von Knips v Attorney General, above at note 60; Abdul Pillane case, above at note 7 (per Potani J).

111 Above at note 60.

112 Misc civil cause no 10 of 1993 (unreported).

113 See Hoexter, CAdministrative Law in South Africa (2007, Juta & Company Ltd) at 303Google Scholar, citing de Waal, J et al. The Bill of Rights Handbook (3rd ed, 2000, Juta & Company Ltd) at 473Google Scholar; Claaren, J and Penford, G “Just administrative action” in Chaskalson, M et al. (eds) Constitutional Law of South Africa (2^nd ed, original service 2001, 2005, Juta & Company Ltd) 63-i at 63-33 – 63-34Google Scholar.

114 See for example: Carephone case, above at note 109; Roman v Williams, above at note 109. In Malawi, this term has been defined in the context of limitations to rights. See for example: Friday A Jumbe and Humphrey C Mvula v Attorney General constitutional cases nos 1 and 2 of 2005 (unreported).

115 See Roman v Williams, id at paras 281–82; Craig Administrative Law, above at note 18 at para 166; de Ville, JRJudicial Review of Administrative Action in South Africa (2003, Butterworths) at 203Google Scholar. Again, in Malawi this term has been defined in connection with the limitations inquiry under sec 44(2) of the constitution. See for example: Maggie Kaunda v R criminal appeal no 8 of 2001 (unreported); JZU Tembo and Kate Kainja v Attorney General civil appeal case no 50 of 2003 (unreported).

116 See for example: Rustenburg Platinum Mines v CCMA 2007 (1) SA 576 (SCA); Trinity Broadcasting (Ciskie) v Independent Communications Authority of SA 2004 (3) SA 346 (SCA).

117 Craig Administrative Law, above at note 18 at 624.