Ackim Chakana and 14 Others v Malawi Revenue Authority (IRC Matter Number 39 of 2026) [2026] MWIRC 15 (7 April 2026)

sA REPUBLIC OF MALAWI IN THE INDUSTRIAL RELATIONS COURT OF MALAWI PRINCIPAL REGISTRY IRC MATTER NUMBER 39 OF 2026 BETWEEN: ACKIM CHAKANA & 14 OTHERS……………………..………………………………...APPLICANTS AND MALAWI REVENUE AUTHORITY………….……………..………..………………..RESPONDENT

Coram

WYSON CHAMDIMBA NKHATA (DEPUTY CHAIRPERSON) Mr. Msuku- of Counsel for the Applicants Mr. Kambumwa- of Counsel for the Respondent Mr. Zakaria- Court Clerk and Official Interpreter RULING ON MOTION TO DISPOSE MATTER ON A POINT OF LAW

Introduction

This is a ruling on a motion brought by the Applicants seeking to dispose of this matter on a point of law. The motion arises in proceedings commenced before this Court in which the Applicants challenge the termination of their employment by the Respondent, the Malawi Revenue Authority. In their originating process, the Applicants seek, among other relief, reinstatement to their former positions and compensation for what they allege to be unfair labour practices. The matter has not followed a straightforward path. Shortly after the commencement of the action, the Applicants obtained an ex parte order of injunction restraining the Respondent from enforcing the termination of their employment, effecting transfers, and recruiting for the positions previously held by the Applicants. The Respondent reacted by entering a defence and by initiating interlocutory proceedings aimed at staying and setting aside that injunction. Those processes have remained pending, their determination having been delayed following adjournment of the scheduled inter partes hearing. It is against that procedural backdrop that the present motion was brought. By their application, the Applicants invite this Court to determine the dispute in limine, on the basis that the material facts are either admitted or not genuinely in dispute, and that what remains for determination are questions of law which do not require ventilation through a full trial. Put differently, the Applicants contend that the case is ripe for final disposal without the need for oral evidence. Ackim Chakana & 14 Others v Malawi Revenue Authority, IRC Matter No. 39 of 2026 Page 1

The Respondent opposes that course. It contends that the threshold for disposing of a matter on a point of law has not been met. In its view, there remain issues, both factual and legal, which are contested and which ought properly to be resolved at trial. It further raises a procedural objection, arguing that there are prior interlocutory processes still pending before the Court, and that it would be inappropriate to determine the substantive dispute while those matters remain unresolved. The Court is therefore called upon to determine, at this stage, whether this is an appropriate case for disposal on a point of law. That inquiry requires the Court to consider not only the nature of the issues raised in the pleadings and affidavits, but also the procedural posture of the matter and whether the interests of justice favour an early determination or a full trial. It is to that question that the Court now turns. The Applicants’ Case in Support of the Motion The Applicants’ case in support of the motion is presented through the affidavit sworn by Counsel Leton Mauya Msuku in support of the motion, the skeleton arguments filed on their behalf, the pleadings already on record, and the oral submissions made at the hearing. Read together, the Applicants’ position is that this is a proper case for disposal on a point of law because the material facts giving rise to the dispute are either expressly admitted by the Respondent or are otherwise not genuinely contested, and that what remains for the Court’s determination are legal questions that do not require resolution through oral evidence at trial. In his affidavit, Counsel Msuku begins by stating that the Applicants commenced the proceedings claiming unfair dismissal. He then explains that, after filing the matter, the Applicants sought interim relief and placed before the Court affidavit evidence setting out the factual basis of their claim. He further notes that the Respondent later filed its own applications directed at discharging the interim order and, in doing so, also placed affidavit evidence before the Court. It is at that point that he deposes that through the affidavits filed by the Respondent in the interlocutory proceedings, the Respondent has in substance admitted the factual narrative originally advanced by the Applicants. In particular, his position is that the Respondent’s affidavit evidence confirms the recruitment process, the Applicants’ participation in that process, their successful interviews, their engagement on probationary employment, the subsequent termination of that employment, and the later advertisement of the very positions they had occupied. On the basis of those matters, he states that he verily believes there is no dispute as regards the facts of the present case. He then expressly repeats that position and says that even the pleadings support it. On that footing, he deposes that this is a proper case for the Court to dispose of without trial and further states his belief that, on the facts of the case, the Applicants have established the claim as prayed in the statement of claim. At the hearing, Counsel began by addressing the legal threshold applicable to a motion of this nature. He submitted that the Court’s jurisdiction to determine a matter on a point of law without full trial is engaged where all the necessary and material facts relating to the subject matter have either been proved or admitted, with the result that no genuine dispute remains as to the relevant facts. In support of that proposition, Counsel referred the Court to several authorities, placing particular reliance on Charles Nsaliwa v Malawi Communications Regulatory Authority, Civil Appeal No. 13 of 2015. His submission, drawn from those cases, was that a matter is fit for disposal on a point of law where the dispute is truly legal in character and not merely presented as factual in order to resist early determination. Ackim Chakana & 14 Others v Malawi Revenue Authority, IRC Matter No. 39 of 2026 Page 2 A recurring theme in Counsel’s submissions was that the Court must look to material facts, and not to issues which a party merely seeks to multiply in order to create the appearance of dispute. He argued that what matters is not whether a respondent has said many things in its defence or affidavits, but whether those things amount to a real and relevant factual controversy on the issues that actually fall for determination. On his argument, the Respondent had not shown any such controversy. Counsel then turned to the factual record and submitted that, if one examined the pleadings and the Respondent’s affidavits, there was no genuine dispute as to the sequence of events. He submitted that the Respondent’s own deponent, Yanjanani Kandoje, had in the affidavit material confirmed that the Commissioner General approved the recruitment of fifteen drivers, that the Applicants applied for those positions, attended interviews, were successful, and were thereafter offered employment. He further submitted that the same deponent confirmed that whilst the Applicants were still on probation, the Respondent terminated their employment, and that shortly thereafter the Respondent advertised for the same positions again. In Counsel’s submission, these were the central facts upon which the case rests and they were not denied in any meaningful sense. The significance of that, he argued, was that the factual background was already fixed and the Court was therefore not being invited to resolve conflicting evidence but only to determine the legal consequences that flow from those facts. From that starting point, Counsel contended that the issues raised by the Respondent are matters of law rather than fact. He referred specifically to paragraph 3(j) of the Respondent’s defence, which he described as containing the heart of the Respondent’s case. He submitted that the defence there advances three propositions: first, that under the Conditions of Service the Respondent could terminate probationary employment by giving seven days’ notice; second, that the Applicants, being probationers, were not entitled to be heard; and third, that reinstatement is not an attainable or automatic remedy in the circumstances. In Counsel’s submission, each of those propositions raises a legal question. He therefore argued that the Respondent had not pointed to any factual issue that required trial, but had instead raised interpretive and legal arguments which this Court is competent to determine at this stage. The Applicants’ case also took issue with the Respondent’s repeated reliance on its Conditions of Service. Counsel submitted that the Respondent had invoked those Conditions across several affidavits, both in the injunction-related proceedings and in opposition to the present motion, yet had never exhibited them. In his submission, this omission was not trivial. He argued that where a party seeks to rely on a document as the foundation of its defence, fairness and ordinary evidentiary principle require that the document be placed before the Court. He submitted that it was striking that despite repeated reference to provisions said to justify termination on notice and to regulate appeal rights, the Conditions themselves had not been annexed. Counsel suggested that the Court was therefore entitled to treat the Respondent’s assertions with caution and not to accept that the mere allegation of a contractual provision amounted to evidence of its existence or content. Closely connected to that argument was the Applicants’ submission that, even assuming that the Conditions of Service contain the provisions alleged by the Respondent, such provisions could not override the statute. Counsel argued that the Respondent was, in effect, relying on its internal conditions to justify a course of action which the Employment Act does not permit. In support of that proposition, Counsel referred the Court to several authorities, placing particular reliance on Mary Mbwana v Blantyre Sports Club , Civil Cause No. 1430 of 2009. The submission drawn from those cases was that parties cannot contract out of statutory protections and that an internal term inconsistent with statutory or constitutional guarantees Ackim Chakana & 14 Others v Malawi Revenue Authority, IRC Matter No. 39 of 2026 Page 3 cannot be enforced by the Court. On that footing, the Applicants reduced the Respondent’s Conditions of Service argument to a further question of law, namely whether internal terms can lawfully authorise what the statute forbids. The Applicants’ submissions also addressed directly the question whether probationary employment may lawfully be terminated without valid reason and without affording the employee a hearing. Counsel argued that section 26(2) of the Employment Act deals only with notice and does not displace the broader requirements of fairness in termination. To support that proposition, he referred the Court to Linna Sheha v Malawi Revenue Authority, Matter No. 113 of 2002 , a case involving the same Respondent, where, according to Counsel, this Court had already made clear that probationary employees are not excluded from the general protections against unfair termination and that section 26(2) concerns the issue of notice rather than the existence of a valid reason or the requirement of procedural fairness. Counsel submitted that the Respondent was now advancing, in substance, the very same argument which had been rejected in that earlier case. He further referred to ILD Diamonds Namibia (Pty) Limited v Pilatus Thobias, Case No. LCA 34 of 2008 and Lovemore Chisale v University of Malawi (College of Medicine), Matter No. 516 of 2018 to support the proposition that probation does not place the employee outside the law’s protection against arbitrary termination. Another aspect of the Applicants’ case concerned the Respondent’s suggestion that the Applicants ought first to have pursued an appeal to the Commissioner General. Counsel challenged both the evidentiary and legal foundations of that submission. On the evidentiary side, he repeated that no Conditions of Service had been exhibited to establish the scope, procedure, or even existence of the alleged appeal right. On the practical side, he submitted that an appeal presupposes that there is a decision with an intelligible basis capable of challenge. Here, he argued, the Applicants were simply terminated without being given any reason. In those circumstances, he asked rhetorically what exactly they were supposed to appeal against. He also submitted that the existence of an internal appeal mechanism does not, in any event, bar an employee from approaching this Court to challenge an unfair dismissal, particularly where no statutory provision requires exhaustion of that process as a condition precedent. The Applicants further addressed the question of remedy, especially reinstatement. Counsel submitted that the facts as admitted by the Respondent itself show that the need for drivers did not disappear after the Applicants’ termination. Rather, the Respondent re-advertised the positions shortly thereafter. In his submission, that fact is highly material because it shows that the services previously provided by the Applicants were still required. On that basis, he argued that this is a proper case for reinstatement. At the same time, Counsel accepted that reinstatement has a discretionary aspect. He therefore submitted in the alternative that if the Court were not minded to order reinstatement, it should grant compensation, and further that where reinstatement is refused or not complied with the law provides for additional relief. The Applicants’ position, therefore, was not that the Court was confined to one remedy, but that the entitlement to relief on liability could and should be determined now. Counsel also resisted the Respondent’s attempt to widen the scope of factual dispute by focusing on notice. In reply, he submitted that the Applicants’ case, as framed in the statement of claim, was not that the dismissal was unfair because notice was not given. Rather, the pleaded unfairness lay in termination without valid reason and without hearing, together with the unfair labour practice said to arise from the transfers followed by dismissal and the later re-advertisement of the positions. His point was that the Respondent could not manufacture a triable issue simply by elevating a fact not relied upon by the Ackim Chakana & 14 Others v Malawi Revenue Authority, IRC Matter No. 39 of 2026 Page 4 Applicants as a ground of unfairness into the central controversy of the case. The Court, he submitted, should look at the material facts as they arise from the Applicants’ pleaded case, not at disputes which the Respondent itself seeks to enlarge beyond the true issues. In advancing that proposition, Counsel also relied on the reasoning in The Registered Trustees of Seventh Day Adventist Church v James Kidney, Mrs Kidney and Persons Unknown, Civil Cause No. 2483 of 2008, where the Court cautioned against treating every issue raised by a defendant as sufficient to defeat summary disposition and emphasised that only substantial disputes of genuine complexity should send a matter to trial. He further referred to the House of Lords decision in Ashmore v Corporation of Lloyd’s [1992] 2 All ER 486, which, as cited in the Applicants’ skeleton arguments, was used to support the broader proposition that parties ought to assist the Court by simplifying and concentrating issues rather than multiplying arguments in the hope that one might suffice to defeat early determination. He submitted that the Respondent’s approach in the present matter fell into the very pattern that those authorities discourage. The Applicants’ case, taken at its highest, is therefore a tightly framed one. It is that the recruitment, employment, termination and re-advertisement of the positions are all admitted. The Respondent’s defence, in the Applicants’ view, does not create real factual controversy but rests on legal contentions about probation, notice, hearing, appeal, and remedy. For that reason, the Applicants say the matter is ripe for final determination on a point of law. They therefore urge the Court to proceed without trial and to grant the relief sought in the statement of claim, whether by way of reinstatement or such other final relief as the Court considers appropriate on the law and the admitted facts. The Respondent’s Case in Opposition to the Motion The Respondent’s opposition to the motion is set out in the affidavit sworn by Yanjanani Kandoje in opposition to the motion to dispose of the matter on a point of law, in the notice of preliminary objection and supporting affidavit sworn by James Bay Kambumwa, in the Respondent’s skeleton arguments, and in the oral submissions made on its behalf at the hearing. Read as a whole, the Respondent’s position is that this is not a proper case for disposal on a point of law because, first, there are material disputes requiring trial and, second, the Applicants have sought to move the Court to final determination while earlier interlocutory processes remain pending before it. In her affidavit in opposition, Yanjanani Kandoje identifies herself as the Human Resources Business Partner in the employment of the Respondent. She begins by setting out what the Respondent regards as the contractual and regulatory framework governing the relationship between the parties. She states that the Applicants entered into contracts of employment as drivers with the Respondent on 12 th September 2025 and that those contracts were terminated on 15th December 2025. She further states that the termination was effected with notice. In the same affidavit, she places emphasis on the Respondent’s Conditions of Service and the internal procedures said to govern the employment relationship. She deposes that, under those Conditions of Service, a probationary contract may be terminated before expiry of the probationary period, that an employee who has been dismissed has a right of appeal to the Commissioner General under the disciplinary and grievance procedures, that the Respondent has the right to transfer employees between working stations under its transfer and rotation policy, and that it also retains the right to conduct interviews for prospective candidates under its recruitment policy. Ackim Chakana & 14 Others v Malawi Revenue Authority, IRC Matter No. 39 of 2026 Page 5 The affidavit then goes on to state what the deponent understands to be the general legal position. She asserts that the law does not permit termination without valid reason and that ordinarily an employee ought to be afforded an opportunity to be heard on matters touching capacity, conduct or operational requirements, unless the employer cannot reasonably provide such an opportunity. But she does not present that as disposing of the matter. Rather, the Respondent’s case, as it emerges from the affidavit as a whole, is that the present dispute must still be examined in the light of the Applicants’ probationary status, the notice that was allegedly given, and the contractual framework under which they were engaged. The deponent then turns to the procedural developments in this case. She confirms that the Applicants filed IRC Form 1 on 20 January 2026 and that, in that claim, they sought reinstatement and compensation for unfair labour practices. She also confirms that, on the same date, the Applicants obtained an injunction which, in effect, restrained the Respondent from enforcing the termination, from transferring the Applicants and from conducting interviews for recruitment of new drivers. She exhibits the statement of claim and the injunction order. She further deposes that on 22 January 2026 the Respondent filed IRC Form 2 in reply and served it on the Applicants on 29 January 2026. In that pleading, she states, the Respondent denied the allegations made by the Applicants and specifically pleaded that the probationary contracts had been terminated with notice, that the Applicants did not appeal against the termination before coming to Court, and that they could not have been automatically reinstated merely because they had filed proceedings. She exhibits the defence as part of the Respondent’s case. The affidavit continues by tracing what happened after the injunction was granted. The deponent states that on 22 January 2026 the Respondent also brought motions seeking stay or suspension of the injunction and the setting aside of that order on the basis that it had been irregularly obtained. She further states that the Court directed that the stay application be heard on 29 January 2026, and that following that hearing the Court declined to grant stay and instead directed that the pending motions of both parties should proceed together and be determined omnibus on 6 February 2026. She exhibits the ruling dated 2 February 2026. She then states that on 6 February 2026 the matter was adjourned because counsel appearing for both parties did not have valid practising licences, and that the Court advised counsel to regularise that position and thereafter obtain a fresh hearing date for the pending motions. She adds that on 12 February 2026 the Respondent filed a notice of adjournment in relation to the hearing of its motion to set aside the injunction, and says that, up to the time of swearing the affidavit, that motion had not yet been given a new date. It is at that point that the Respondent frames its core complaint against the present motion. Ms Kandoje deposes that, to the Respondent’s surprise, it was thereafter served with the Applicants’ motion to determine the matter on a point of law. Her concern, which is echoed more expressly in the affidavit of Mr Kambumwa in support of the preliminary objection, is that the Applicants had now moved for final disposal of the matter when there were already pending interlocutory motions before the Court that had not yet been heard because of adjournment. The Respondent’s complaint is not merely that the Applicants have chosen an inconvenient procedure. It is that the Applicants are, in the Respondent’s view, attempting to bypass the order in which the matter was supposed to proceed following the earlier ruling of the Court. In paragraph 12 of the affidavit, the deponent says the Respondent believes that the chronology and order of events should have followed the Court’s ruling of 2 February 2026 and the directions given on 6 February 2026. In the next paragraphs she states that the proper order would have been first to hear the pending motions, determine them omnibus, and then leave the parties to decide how to proceed depending on the result. She says that the present state of affairs creates uncertainty because the Respondent does not know what became of the Court’s earlier directions and the pending notice of adjournment. She describes the Applicants’ Ackim Chakana & 14 Others v Malawi Revenue Authority, IRC Matter No. 39 of 2026 Page 6 motion as an attempt to “short-circuit the procedure” and says the Court ought to be vigilant. On that basis, she prays that the motion to determine the matter on a point of law should be stayed or set aside pending the hearing of the earlier motions. That procedural strand was reinforced in the notice of preliminary objection and in the affidavit sworn by James Bay Kambumwa. There, the Respondent puts the matter more directly. It states that there are pending motions before the Court, namely the motion to set aside the injunction and the motion concerning continuation of the injunction, and that the interests of justice require those previously filed motions to be heard first before the Applicants’ present motion is entertained. In that way, the Respondent seeks to present the matter not only as one involving disputed questions of law and fact, but also as one in which orderly case management and procedural discipline require the Court to refuse to proceed with the motion in its present form. At the hearing, counsel for the Respondent adopted the affidavit of Yanjanani Kandoje and the filed skeleton arguments and indicated that he would rely on them fully. His oral argument then developed the Respondent’s position in more pointed terms. He submitted that the principles applicable to a motion of this kind are analogous to those governing summary judgment or judgment on admission, and that before such a motion can succeed the Court must be satisfied that the defendant has no defence, that no issue has been raised requiring investigation at trial, that there is no reason warranting trial, and that any admissions relied on are unequivocal. In support of that framework, the Respondent’s skeleton arguments relied on Standard Bank of Malawi v Maone Oil Mills Limited & 5 Others, MSCA Civil Appeal No. 94 of 2018 [2024] MWSC 6, where the Supreme Court declined summary judgment on the footing that there were questions of fact and law incapable of resolution without trial. The skeleton arguments also drew from Standard Bank Ltd v Tourism Investments Ltd & Euro Industries Ltd, MSCA Civil Appeal No. 17 of 2018 and Illovo Sugar Plc v Ecobank Malawi Ltd, MSCA Civil Appeal No. 4 of 2020 , as authorities emphasising that summary determination is only proper where there is plainly no defence and no issue fit for trial. That framework became the lens through which the Respondent asked the Court to examine the Applicants’ motion. Counsel then submitted that this standard had not been met. He argued that the Respondent had indeed raised triable issues in IRC Form 2 and in the affidavit material. One such issue, in his submission, was that the Applicants were on probation and that their contracts were terminated with notice in accordance with section 26(2) of the Employment Act and the Respondent’s Conditions of Service. Counsel stressed that the Applicants were not confirmed employees but probationers, and he maintained that this feature of the case was not incidental. Rather, it lay at the heart of the Respondent’s defence. In his argument, the legal consequences of probationary status, especially when read together with section 26(2), were not matters that could simply be swept aside as already settled in the Applicants’ favour. Counsel also submitted that section 57 of the Employment Act, which the Applicants relied upon in relation to the right to be heard, was not absolute in the way the Applicants suggested. He argued that the section itself envisages circumstances in which the employer may not be expected to provide an opportunity to be heard. Although the Respondent did not in oral argument fully unpack the factual circumstances said to bring the case within that exception, the point of the submission was to show that the question whether the Applicants were entitled to a hearing was not, in the Respondent’s view, an abstract issue of pure law. It was, rather, an issue requiring fuller interrogation in the context of the nature of the employment, the probationary setting, and the facts surrounding termination. Ackim Chakana & 14 Others v Malawi Revenue Authority, IRC Matter No. 39 of 2026 Page 7 A further point made by counsel was that the Applicants were presenting the matter as though there had been admissions sufficient to entitle them to judgment, when in fact the Respondent had consistently denied liability. Counsel submitted that IRC Form 2 expressly denied that the termination was unfair and expressly denied that reinstatement followed automatically. He also submitted that the Respondent had consistently challenged the ex parte injunction on the basis that it effectively granted reinstatement without notice and before trial. He therefore argued that there was no unequivocal admission upon which the Court could safely proceed to final judgment. Counsel further addressed the issue of remedy. He argued that reinstatement is a final remedy provided for under section 63 of the Employment Act and that it falls for consideration after trial and after a finding of unfair dismissal. In his submission, the Applicants were, in effect, attempting to obtain through a point of law motion what they had already sought through the injunction, namely restoration to employment, without the Court having heard the matter fully. He submitted that the Respondent had throughout objected to that approach and had made that objection clear in the stay proceedings, in the application to set aside the injunction, and in its defence. The Respondent’s skeleton arguments reinforced that position by reference to sections 63(1) and 63(6) of the Employment Act, contending that the structure of section 63 shows that reinstatement and any special award for non-compliance arise only after adjudication of liability. Another aspect of the Respondent’s oral argument was its insistence that some of the matters relied on by the Applicants were in truth contested. Counsel said, for example, that the Respondent’s position was that the Applicants were terminated with notice, whereas the Applicants were treating the question of termination as though only the absence of reason and hearing mattered. In the Respondent’s formulation, that itself demonstrated that there were disputes requiring investigation. Counsel therefore rejected the Applicants’ attempt to define the dispute narrowly and submitted that the Court was being invited to ignore parts of the Respondent’s defence in order to create an artificial picture of factual agreement. Although less developed than the affidavit material, counsel also maintained the Respondent’s position that the Applicants had an internal avenue of appeal which they did not utilise. This was not put merely as a procedural bar. Rather, it was used to reinforce the Respondent’s broader case that the matter had not reached a stage at which final judicial determination without trial was appropriate. The Respondent’s skeleton arguments also sought to anchor its position in the contractual framework governing the employment relationship. Reliance was placed on clause 8(2) of the Respondent’s Conditions of Service and section 26(2) of the Employment Act to contend that the Applicants’ probationary contracts were terminable with notice, and that what occurred was, from the Respondent’s perspective, consistent with those provisions. Further, the skeleton arguments emphasised that the Applicants had alternative statutory remedies under section 63 of the Employment Act in the event that unfair dismissal were ultimately established after trial. The Respondent’s point here was that the existence of those remedies itself militated against the Applicants’ insistence on immediate final determination, particularly where the Respondent says it has a defence on the merits. All in all, the essence of the Respondent’s case in opposition is twofold. First, it says that this matter is not fit for disposal on a point of law because the Applicants have not shown that all material facts are admitted or beyond controversy. On the Respondent’s case, probationary status, the giving of notice, the relevance of the Conditions of Service, the availability of internal appeal, and the entitlement to reinstatement all remain live matters requiring fuller adjudication. Second, the Respondent says that, even apart from the merits, the Ackim Chakana & 14 Others v Malawi Revenue Authority, IRC Matter No. 39 of 2026 Page 8 motion is procedurally out of sequence because it has been brought while earlier interlocutory motions, particularly those concerning the injunction, remain pending and unheard due to adjournment. It is for those reasons that the Respondent asks the Court to decline the motion and allow the dispute to proceed through the ordinary processes of the Court.