Constitutional mimicry and common law reform in a rights-based post-colonial setting: the case of South Africa and Malawi

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Periodical article

Title:	Constitutional mimicry and common law reform in a rights-based post-colonial setting: the case of South Africa and Malawi
Author:	Banda, Sibo
Year:	2009
Periodical:	Journal of African Law
Volume:	53
Issue:	1
Pages:	142-170
Language:	English
Geographic terms:	Malawi South Africa
Subjects:	Bill of Rights common law systems private law tenancy jurisprudence
Abstract:	Competent courts in Malawi must, as courts have done in South Africa, undertake a radical path in order to enhance the common law position of distinct categories of persons. This article discusses judicial appreciation of the common law-changing function of a bill of rights and its associated values, and judicial understanding as to when such a function may be brought into play. The article examines approaches taken by courts in South Africa in determining the circumstances in which the South African Bill of Rights applies to private relationships, when private parties owe each other duties arising out of the Bill of Rights and the scope of a court's authority to amend the common law in that regard. The article projects the debate, analysis and critique of these approaches onto the Malawian legal landscape through a discussion of the tenant worker contracted on the Malawi private estate. Notes, ref., sum. [Journal abstract]