The High Court in Blantyre on Wednesday granted leave to allow a private firm to file an application to commit to prison a Cabinet minister and the police boss for failing to comply with a court order.
The High Court is now expected to set a date for the commencement of committal to prison proceedings of Minister of Home Affairs and Internal Security Grace Chiumia and Inspector General of Police Lexten Kachama.
This means if the Attorney General (AG) fails to successfully defend the two, they could be jailed.
Chiumia and the IG defied a Malawi Supreme Court of Appeal order issued in September 2016, requiring them to facilitate movement of police uniforms stuck in Mozambique, which the local company, Africa Commercial Agency, imported from China.
AG Kalekeni Kaphale, who sent a representative to court on Wednesday pleaded for an adjournment when the matter came for inter-partes hearing to allow both parties to argue whether leave for committal to prison should be granted.
But lawyers for the firm, led by Lusungu Gondwe, objected the plea to have the matter adjourned, arguing reasons for the adjournment were not convincing.
He said application for committal is brought ex-partes anyway and that the AG filed no skeleton arguments or any affidavit in opposition, among other reasons.
The lawyers argued that in any case, the AG may have an opportunity to bring up whatever issues he may have when committal to prison proceedings begin.
AG representative, Jean Piriminta, told the court that the lawyer handling the matter, Apoche Itimu, was outside the country.
When the presiding judge Healy Potani heard the matter in chamber, he asked for comments on the stand taken by the applicants to oppose the adjournment.
Piriminta said she had no technical knowledge about the matter and was only sent to seek adjournment.
In his ruling, Potani agreed with arguments the applicants raised and granted leave, effectively allowing Africa Commercial Agency lawyers to start the court process to convince the court that Chiumia and the IG be jailed for disobeying the order.
The initial appearance of the two was supposed to take place on January 31, but failed because Kaphale was in Mzuzu where he was representing former minister of Agriculture, Irrigation and Water Development George Chaponda, who was also facing a contempt of court charge.
Chiumia and Kachama risked being jailed for failing to comply with the court order which Supreme Court judge Lovemore Chikopa gave on August 23 2016, ordering the two to undertake some steps within 21 days to facilitate movement of the goods from Mozambique to Malawi, duty-free.
Africa Commercial Agency entered into a contract with Malawi Government to supply uniforms for Malawi Police Service (MPS), according to court records.
The court learnt that the firm has over the years been delivering goods to MPS. The procedure, according to them, was that when the goods were required, the Quartermaster would indicate the quantum and nature thereof to the company.
The applicant then would make the goods available, invoice MPS and would be paid accordingly.
The goods were brought into Malawi duty-free and it was at all material time the duty of MPS to facilitate the duty free importation.
The court learnt that all along the applicant imported some goods from China to be brought into Malawi through Mozambique.
As it was, the court learnt, MPS was supposed to facilitate duty-free importation and police wrote Malawi Revenue Authority on August 24 2015 asking for duty waiver, and MRA granted the waiver.
But the consignment, which was loaded in two containers, coincided with lack of peace in Mozambique last year and new procedures were introduced by Mozambican authorities such that demanded documentation from their Malawian counterparts certifying that the goods were indeed intended for use by the MPS.