The Malawi Gazette Supplement dated 30th April, 1999, containing Regulations, Rules, etc.

(No. 10A)

GOVERNMENT NOTICE No. 16

LABOUR RELATIONS ACT. 1996

(No. 16 OF 1996)

INDUSTRIAL RELATIONS COURT (PROCEDURE) RULES, 1999

IN EXERCISE of the power conferred by section 71 (1) of the Labour Relations Act, I,
RICHARD ALLEN BANDA, Chief Justice, acting on the advice of the Chairperson of the Industrial
Relations Court, make the following Rules-

1. These Rules may be cited as the Industrial Relations Court (Procedure) Citation
Rules, 1999

2. In these Rules, unless the context otherwise requires- Interpretation

“Court” means the Industrial Relations Court established under section

110 (2) of the Constitution and includes any person authorised to preside
over or to serve as a member of the Court in terms of section 66;

“Chairperson” means the Chairperson of he Court appointed in terms of

section 66;

“Deputy Chairperson” means the Deputy Chairperson of the Court

appointed in terms of section 66;

“day” means any day other than a Saturday, Sunday of public holiday;

“notice” means a written notice;

“party” means any party to Court proceedings and includes a person

representing a party;

“process” means any document or form required to be served or filed in

terms of the Act:

“public holiday” has the same meaning as in the Public Holidays Act: Cap. 18:05

“Registrar” means the Registrar of the Court appointed in terms of

section 69 (1) and includes any other person authorised to act in the place
of the Registrar.
 30th April 1999

3 – (1) The office of the Registrar shall be open every Monday to Friday, Office hours
excluding public holidays, from 9.30am to 12.oo noon and from 2.00pm to
4.00pm.
(2) Notwithstanding subrule (1), the Court or the Registrar may direct that
any document be filed on any day and at any time.

4. The address and other relevant particulars of the Registrar shall be as Address of the
Registrar
follows-

(a) physical address-

The Registrar, Industrial Relations Court, Livingstone Avenue,

Limbe, Malawi.

(b) postal address-

The Registrar, Industrial Relations Court, P.O. Box 5596, Limbe,

Malawi.

5. – (1) The Registrar shall number applications consecutively and the Duties of the
Registrar
number of each application shall include the year in which it is filed.

(2) The Registrar may advise and assist a litigant, who in the opinion of
the Registrar is indigent, to process any matter.

(3) The Registrar may, if requested to do so by the parties, and shall, if

directed to do so by the Court, endeavour to assist the parties in any matter
pending in the Court to arrive at a settlement.

(4) The Registrar may preside at any pre-hearing conference if directed

to do so by the Court.

(5) In carrying out his functions under subrules (3) and (4), the Registrar
may act as a conciliator.

(6) Without prejudice to t he general duty of being responsible for the

administrative functions of the Court, the Registrar shall-

(a) only accept a form or other document if the form or document is

filled as permitted in terms of these Rules;

(b) only accept and list a matter which substantially complies with
the requirements for listing provided for in these Rules;

(c) unless otherwise directed by the Court, list any matter on a list
appropriate to the nature of the matter and in the order in which the matter
became ready for a hearing after the close of pleadings;
 30th April 1999

(d) only on the direction of the Court, remove any matter from the list
or restore any matter to the list;

(e) issue such process or documentation as may be necessary for

a party to enforce any decision or order of he Court in terms of section 75;

(f) send any notice to parties which he deems necessary in

achieving the objects of and in compliance with the provisions of the Act; and

(g) carry out or see to it that all directions and orders of the Court
are carried out promptly.

(7) The registrar shall perform his duties under the supervision of the
Chairperson or Deputy Chairperson.

6. – (1) Documents may be filled with the Registrar by- Filing of documents
(a) handing the document to the Registrar;
(b) sending a copy of he document by registered post;
(c) telegram; or
(d) faxing the document or using other electronically printed
transmission.

(2) A document shall be deemed to have been filed with Registrar-

(a) on the date on which the document is handed to the Registrar;
(b) on the date on which the document sent by registered post or
telegram is received by the Registrar; or
(c) on completion of he whole of the transmission of the facsimile or
other electronically printed transmission.

(3) The Court shall, in respect of any document filed with the Court,
Levy a filing fee at the scale applicable in the High Court.

7. A document that is required to be served on any person may be served in Mode of service of
documents
any one of the following ways, namely-

(a) by handing a copy of he document to the person;

(b) by leaving a copy of the document at the person’s reputed place
of residence or business with any other person who is apparently at least 16
years old and in charge of the premises at the time;
(c) by leaving a copy of he document at the person’s reputed place of
employment with any person who is apparently at least 16 years old and
apparently in authority;
(d) by faxing a copy of the document to the person, it the person has a
facsimile number or using other electronically printed transmission;
(e) by handing a copy of the document to any representative
authorised in writing to accept service on behalf of he person; and
(f) if the person has chosen an address or facsimile number for
service, by leaving a copy of he document at tehat address or by faxing it to
that facsimile number.
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8. Officers on whom service shall be affected where the person to be served Designation of
officers of a
is a company, trade union, partnership, firm, association, municipality, statutory company, firm, etc,
body or Government shall be as follows- to accept service

(a) if the person is a company or other body corporate, by serving a

copy of the document on a responsible employee of he company or body
corporate at its registered office or its principal place of business within the
district in which the dispute first arose or, if there is no employee willing to
accept service, by affixing a copy of he document to the main door of he office
or place of business;
(b) if the person is a trade union or employers’ organisation, by
serving a copy of he document on a responsible employee who at the time of
service is apparently in charge of the reputed main office of the union or
employers’ organisation, the union’s or employers’ organisation’s office within
the district in which the dispute first arose or the reputed office of the union or
employers’ organisation or, if there is no person willing to accept service, by
affixing a copy of the document to the main door of the office.
(c) if the person is a partnership, firm or association, by serving a copy
of he document on a person who at the time of service is apparently in charge
of the premises and apparently at least 16 years of age at the reputed place of
business of such partnership, firm or association or, if such partnership, firm or
association has no place of business by serving a copy of the document on a
partner, the owner of the firm, the chairperson, secretary of he manager or the
other controlling body of the partnership, film or association, as the case may
be;
(d) if the person is a municipality, by serving a copy of the document
on the town clerk, assistant town clerk or any person acting on behalf of he
town clerk or assistant town clerk.
(e) if the person is a statutory body, by serving a copy on the secretary
or similar officer, a member of the board or committee of the body or any
person acting on behalf of he body; or
(f) if the person is the Government, by serving a copy at the office of
the Arney General or other person authorised to act on behalf of the
Government in respect of such proceedings.

9. Notwithstanding rules 7 and 8, a document that is required to be served Other means of

service of
on any person may be served by any other means authorised by the Court. documents

10. - (1) Service shall be proved in Court in any one of the following ways-

(a) by an affidavit by the person who effected service;

(b) if service was effected by facsimile or other electronically printed
transmission by an affidavit of he person who effected service which must
provide proof of the correct facsimile number and confirmation that the whole of
the transmission was completed; or
(c) if the person on whom the document has been served is already n
record as a party, by a signed acknowledgement or receipt by the party on
whom the document was served.
 30th April 1999

(2) If the Court is not satisfied that service has taken place in accordance
with this rule, it may make any order as to service that it deems fit.

11. A document initiating proceedings known as a “statement of claim”, may

follow the form set out in IRC Form 1 and shall-

(a) have a heading containing the following information-

(i) the title of the matter;
(ii) the case number assigned by the Registrar tot he matter;
(iii) an address of the party delivering the document at which the
party will accept notices and service of all documents in the proceedings; and
(iv) a notice advising the other party if the party intends to oppose
the matter, he must deliver a response in terms of rule 12 within 14 days of
service of the statement of claim, failing which the matter may be heard in the
party’s absence and an order as to costs may be made against the party;

(b) have a substantive part containing the following information-

(i) the names, description and addresses of the parties;
(ii) a clear and concise statement of the material facts, in
chronological order, on which the party relies, which statement must be
sufficiently particular to enable any opposing party to reply to the document;
(iii) a clear and concise statement of the legal issues that arise from
the material facts which statement must be sufficiently particular to enable any
opposing party to reply to the document; and
(iv) the relief sought;

(c) be signed by the party to the proceedings or by his representative;

(d) express all dates, sums and numbers contained in the document in
figures; and

(e) be accompanied by a schedule listing the documents that are material

and relevant to the claim.

12. - (1) Any party on whom a statement of claim is served may deliver a Response
response to the statement.

(2) The response may follow the form set out in IRC Form 2.

(3) A response is required to be delivered within 14 days of he date on

which the statement of claim is delivered.

13. - (1) The parties shall, when requested by the Court to do so, hold an Pre-hearing
conference
informal conference at a mutually convenient time, date and place prior to the
hearing of any matter.

(2) At the conference referred to in subrule (1), without prejudice to the

rights of the parties, consideration may be given to the following matters-
 30th April 1999

(a) any means whereby the dispute may be settled, inclusive of such
previous endeavours, if any, made by parties to settle the dispute by
agreement or otherwise;
(b) any agreements as to nature and extent of the unresolved issue;
(c) such facts as are common cause or are admitted by any party;
(d) any steps which may shorten the hearing;
(e) discovery or exchange of document;
(d) the manner in which documentary evidence is to be dealt with;
(f) the manner in which documentary evidence is to be dealt with;
(g) whether evidence on affidavit is to be admitted with or without
cross examination of he document;
(h) which party shall begin presenting his case;
(i) the necessity or otherwise for an on-the-spot inspection;
(j) securing the presence at Court of any witness; and
(k) any other matter or means whereby the proceedings may be
shortened.

(3) Notwithstanding subrule (1), any party may on reasonable notice require
the other party or parties, as the case may be, to attend a conference at a
mutually convenient time, date and venue to attempt to agree on such matters
referred to in subrule (2) as may be relevant.

(4) Notwithstanding subrules (1) and (3) the parties shall, when directed by
the Court to do so, hold a further conference in chambers prior tot he hearing
of any matter during which the Chairperson, Deputy Chairperson or Registrar
may preside.

(5) In exercising his functions under subrule (4), the presiding officer may
also act as conciliator.

(6) The parties shall draw up and sign minutes recording the matters agreed
to at the conferences referred to in subrules (1) and (3) as well as the matters
still in dispute and the party initiating the proceedings shall ensure that a copy
thereof is filed with the Registrar at least 3 days prior tot he hearing.

(7) The Court may refuse to commence the hearing of the matter on the date
set down if the pre-hearing minutes have not yet been filed and the Court may
makes such order as it deems fir in the circumstances.

14. - (1) A document or tape recording not disclosed may not, except with the Discovery of
documents
leave of the Court granted on whatever terms the Court deems fit, be used for
any purpose at the hearing by the person who was obliged to disclose it except
that the document or tape recording may be used by a person other than the
person who was obliged to disclose it.

(2) If the parties can not reach an agreement regarding the discovery of
documents and tape recordings, either party may apply to the Court for an
appropriate order.
 30th April 1999

(3) For the purpose of this rule, a tape recording includes a soundtrack,
film, magnetic tape, record or any other material on which visual images sound
or other information can be recorded.

15. -(1) Any party intending to call an expert witness shall deliver a notice to Expert witnesses
that effect together with a summary of the evidence of the expert witness to
both the Registrar and the other party at least 14 days before the date of the
hearing.

(2) If a party fails to comply with subrule (1), the Court may-
(a) decline to admit the evidence of he expert witness; or
(b) admit the evidence of the expert witness if it is satisfied that the
failure was due to a good reason.

16.-(1) An interlocutory application or other application incidental to any Interlocutory

applications and
proceedings pending before the Court in respect of which no procedure has matters not covered
been provided for by the Act or by these Rules shall be brought by a party on by these Rules
notice of motion which shall, as near as possible, be in the form set out in IRC
Form 3.

(2) The applications referred to in subrule (1) shall be supported by an

affidavit;
Provided that-
(a) applications as to procedural aspects need not be supported by
affidavit; and
(b) depending on the nature of the apllication, the Court may dispense
with such notice.

17.-(1) Whenever a matter is settled out of Court or when parties agree to Postponements and
withdraws
postpone a matter, the party who placed the matter on the list shall forthwith
notify the Registrar by delivering a notice of postponement or withdraw, as the
case may be.

(2) Parties shall not, without the leave of Court, postpone or remove a
matter from the list within 2 weeks of the hearing date unless such matter has
been settled.

18.-(1) Without prejudice to section 71, the Court may permit the parties Evidence
together with or in lieu of other evidence to-
(a) adduce evidence by way of affidavit;
(b) argue a matter on a stated case; or
(c) argue a matter on the record of some other proceedings.

(2) The Court shall decide in its discretion which party shall commence
leading evidence.

19. The Court may at any time before, during or alter a hearing and in any Heads of
arguments
matter call upon the parties to deliver a concise statement of the main points
which the parties respectively intend to argue and a list of authorities intended
 30th April 1999

to be referred to and shall specify the date by which those documents shall be
delivered and the number of copies required.

20.-(1) The language to be employed in the Court shall be English and the Language to be
employed in Court
evidence, all processes and all the records of proceedings in the Court shall be
English.

(2) If any of the parties or witnesses in proceedings before the Court does
not understand English, then the proceedings shall be interpreted from English
into the language understood by the parties or the witnesses concerned, as the
case may be, and vice versa.

21.-(1) Before any interpreter may interpret in Court, he shall take an oath or Oath of office
make an affirmation in the following form-

“I, ……………………………………………………………………………………
(Full names)
do hereby swear/solemnly and sincerely affirm and declare that whenever I
may be called upon to perform the functions of an interpreter in any
proceedings in the Court, I shall truly and correctly and to the best of my ability
interpret from the language I am called upon to interpret into English and vice
versa”

(2) Any appointed member of the Court shall not perform any function of
the Court unless he has taken an oath or made an affirmation in the following
form-
“I, ……………………………………………………………………………………
(Full names)
do hereby swear/solemnly and sincerely affirm and declare that I will in my
capacity as an appointed member of the Industrial Relations Court administer
justice to all persons alike without fear, favour or prejudice”

22.-(1) Costs shall be taxed by the registrar in accordance with the scale Costs
employed by the High Court for the time being.

(2) Costs taxed by the Registrar shall be subject to review by the

Chairperson or Deputy Chairperson on application by one or more of the
parties on notice to all other parties within 14 days of such taxation.

(3) An application for review under subrule (2) shall identify each dispute
item or part of an item together with the grounds of objection to the allowance
or disallowance thereof:

(4) Any party may within 14 days of receipt of an application under such rule
(2) submit written contentions, including ones not advanced at the taxation , on
each item sought to be reviewed and thereafter the Registrar shall frame his
report and supply a copy to each party who may within 7 days of receipt
thereof submit further contentions.
 30th April 1999

(5) The Registrar shall submit the document under subrules (2) and (4) to
the Chairperson or Deputy Chairperson who may decide the matter-
(a) on the documents alone;
(b) on the documents and such information as he may require from the
Registrar; or
(c) if he deems fit, after hearing the parties in chambers.

23.-(1) The Court shall keep a record of- Court records

(a) any judgement or ruling given by the Court
(b) any evidence given in Court
(c) any objection made to any evidence received or tendered;
(d) any on-the-spot inspection and any matter recorded as a result
thereof; and
(e) the proceedings of the Court generally:

Provided that the Court may direct that argument need not be recorded.

(2) Records of he Court shall be kept by such means, including hand

written notes, shorthand notes or electronic recording as the Court may deem
expedient.

(3) Hand-written notes, shorthand notes and electronic recordings shall be

filed with the Registrar after they have been certified as correct by the person
who made them.

(4) A transcript of he notes or record or a part thereof may be made on

request of the Court or any of the parties upon payment of such fees as may
be prescribed from time to time.

(5) After the person who made the transcription has certified it as correct,
the transcript together with the hand-written noted, shorthand notes or
electronic record shall be returned to the Registrar.

(6) The transcript of the hand written notes, shorthand notes or electronic
record certified as envisage in subrule (3) shall be deemed to be correct until
the contrary is proved.

24.-(1) A witness who attends the Court by order of the Court shall be paid an Witness attendance
and related costs
allowance towards attendance, travel and subsistence as provided in the Legal
Practitioners Remuneration, Taxation of Costs, and Allowances to Witnesses Cap. 3:02
Rules made under the Courts Act.

(2) A party who requires a witness to attend Court shall be liable to pay the
witness an allowance towards attendance, travel and subsistence as provided
for int eh Legal Practitioners Remuneration, Taxation of Costs and Allowances
to Witnesses Rules made under the Courts Act. Cap. 3:02

(3) Any party who anticipates any problem or possible problem in securing
the attendance of a witness may request the Court to authorise the issue of a
 30th April 1999

subpoena for the witness to appear before Court on a date and at a time and
place specified in the subpoena.

Provided that the party shall satisfy the Court that, in his opinion, the
witness may be able to give material information concerning the alleged
dispute, or he suspects or believe that the witness has in his possession,
custody or under his control any book, document or thing which has any
bearing on the alleged dispute.

Provided further that the party shall also satisfy the Court as tot eh grounds
for anticipating any problem in securing the attendance of the witness:

Provided further that the provisions of subrule (2) shall apply in respect of
the attendance, travel and subsistence costs of the witness.

25.-(1) Without prejudice to the decision-making power of the Court under General powers
section 67, the Court may on application or its own motion at any time-

(a) before after the expiry of any period condone any failure to comply
with any rule including time periods save for the time within which an appeal
may be lodged with the High Court and may abridge any time prescribed by
these Rules;
(b) allow the allegation in any form to be amended at any time;
(c) if in any proceedings it appears that a party to the proceedings has
been incorrectly or defectively cited, correct the error or defect or order the
substitution of the party;
(d) join any other person as a party to the proceedings at any time on
any such terms and conditions as it deems fit;
(e) make an order consolidating the disputes pending before it in
separate proceedings where it deems such consolidation to be expedient and
just;
(f) allow any party at any time to amend his application or his opposition;
(g) grant any order in the absence of a party if it is satisfied that the
party had notice of the set hearing date;
(h) rescind on good cause being shown, any order made by it in the
absence of a party;
(i) order any person who fails to comply with any notice or directive
given in terms of these Rules to do so;
(j) order that any party who fails to comply with any notice or directive
shall not be entitled to any relief in such proceedings;
(k) set aside any irregular step which has been taken by another party
unless the party complaining of the irregular step has with knowledge of the
irregularity taken any further step in the proceedings;
(l) declare in the case of a partnership or film, that any person was at a
certain time or for a certain period a partner of a partnership or the proprietor of
a firm;
(m) grant-
(i) urgent interim relief pending a decision by the Court after a
hearing; and
 30th April 1999

(ii) an interdict or any other order in the case of any action that is
prohibited by law regarding any trade dispute;
(n) before or during a hearing, grant a rule nisi and confirm or discharge
a rule nisi on return date if appropriate unless the Act otherwise provides; and
(o) preside at any pre-hearing conference.

(2) In any application referred to in subrule (1), the Court may make such
orders as it deems fit.

(3) The Chairperson or, in his absence, the Deputy Chairperson shall, in his
direction, decide when and for how long the Court shall be in recess during any
year.

(4) The Court, in the exercise of its powers and discretion and in the
performance of its functions, may act in such manner as it may consider
expedient in the circumstances in order to achieve the objectives of the Act and
in so doing it shall have regard to substance rather than form, save as is
otherwise provided in the Act.

26.-(1) The Registrar shall enter judgement by default against a party if- Default judgement
(a) the party does not respond to a statement of claim or an application
within the prescribed time limit or any extension granted by the Court within
which to deliver a response; or
(b) directed to do so by the Court.

(2) Subrule (1) (a) shall not apply if the party initiating the proceedings
instructs the Registrar not to enter judgement by default.

(3) Notwithstanding that a default judgement has been entered, the person
initiating the proceedings may request the Registrar to have the matter
removed from the list if the matter from the list.

27. An appeal in terms of section 65 (2) shall be dealt in terms of Order Appeals
Cap. 3:02
XXXIII of the Subordinate Courts Rules made under the Courts Act.

28. Where an act is required to be done within a specified period of days Reckoning periods
of time
after or from a specified date, the number of days shall be calculated by
excluding the specified date and including the last day of the specified period of
days.

Provided that where the last day of the specified period of days falls on a
Saturday, Sunday or public holiday, the number of days shall be calculated by
excluding-
(a) the specified date; and
(b) the Saturday, Sunday or public holiday, as the case may be.
30th April 1999