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Constitutional Mimicry and Common Law Reform in a Rights-Based Post-Colonial Setting: The Case of South Africa and Malawi

Banda, Sibo (2009) Constitutional Mimicry and Common Law Reform in a Rights-Based Post-Colonial Setting: The Case of South Africa and Malawi. Journal of African Law, 53 (1). pp. 142-170.

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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.

Item Type: Article
Keywords: Constitutional Mimicry; Common Law Reform; South Africa; Malawi;
Subjects: Social Sciences > Law
Item ID: 1892
Identification Number: 8866D6BDBC3142538EF8F35BE3992C07
Depositing User: Dr. Sibo Banda
Date Deposited: 22 Mar 2010 15:43
Journal or Publication Title: Journal of African Law
Publisher: School of Oriental and African Studies
Refereed: Yes
URI:

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