Two months after former Ministry of Finance budget director Paul Mphwiyo thought he had hit a ‘jackpot’, the Industrial Relations Court (IRC) in Lilongwe has set aside a default judgement in his favour.
The court’s decision followed a challenge by Attorney General (AG) Thabo Chakaka Nyirenda.
Delivering his judgement dated November 8 2021, IRC deputy chairperson Howard Pemba said in his view, the AG had defence on merits and “has to be tested at trial”.
He said: “Suffice to say that looking at this respondent’s [AG] purported defence and the respondent having stated that they have a counter-claim for the sum of K2.4 billion which is related to the criminal charges that the applicant [Mphwiyo] is answering in the High Court, this court has all reasonable belief that this is a defence that carries with it prospects of success when only the allegations in it is considered.
“It is, therefore, the ruling of this court that the default judgement that was entered in favour of the applicant dated 1st September 2021 be and is hereby set aside on the ground that the respondent has a defence on merit.”
Mphwiyo commenced legal action against the Malawi Government in March this year, seeking, among others, to be reinstated on the payroll and that he be paid his withheld wages. He argued that his interdiction was unlawful, unfair and unjustified.
The former budget director was interdicted from the civil service in 2014 pending conclusion of his criminal trial alongside 18 others involving theft and money laundering of K2.4 billion public funds.
Mphwiyo obtained a default judgement in his favour on September 1 2021 after the AG’s office allegedly initially failed to defend the matter.
But Nyirenda challenged the default judgement describing it as irregular because Mphwiyo failed to give the AG’s office the mandatory three-month notice before commencing his action.
He also argued that there was nothing wrong with government interdicting Mphwiyo without pay because his employment was regulated by the Malawi Public Service Commission Regulations and that regulation 40(1)(a) of it empowers government to interdict without pay a civil servant who has been charged with a criminal offence before competent court of law.
The AG further argued his office had a defence on merits and a valid counter-claim which ought to set off or extinguish Mphwiyo’s payment claim.
In opposing the application, Mphwiyo argued that the mandatory three-month notice was served on the AG’s office in March 2021, an undertaking which the court also proved.
He also argued the default judgement was regularly obtained and needed not to be set aside because he proceeded with it as he had no option, having observed the AG’s office failure to respond to his notice to sue government.
In a brief interview, Nyirenda said his office was happy with the ruling of the court.
Mphwiyo’s lawyer was not available for comment.
The court’s refusal to grant Mphwiyo his wish is one of the many setbacks he has suffered since his case started in 2014.
The most recent example is the May 2021 rebuff in which the High Court sitting in Lilongwe threw out an application he made alongside 18 others in the infamous Cashgate case for the court to nullify the trial and submitting that presiding Judge Esme Chombo recuse herself in the case as she was due for retirement.
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