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Constitutional Mimicry and Common Law Reform in a Rights-Based Post-Colonial Setting: The Case of South Africa and Malawi
Published online by Cambridge University Press: 23 March 2009
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.
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- Copyright © School of Oriental and African Studies 2009
References
1 The Bill of Rights constitutes chapter IV of the Republic of Malawi (Constitution) Act (no 20 of 1994) (the Malawi Constitution).
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9 Sec 200 provides that unless “inconsistent with this Constitution, all Acts of Parliament, common law and customary law in force on the appointed day shall continue to have force of law”.
10 Sec 11(2)(b) of the Malawi Constitution stipulates that in the interpretation of law a court must take full account of the Fundamental Principles and the Bill of Rights incorporated in chaps III and IV respectively of the constitution.
11 Id, sec 11(1) requires courts to develop appropriate principles for interpreting the constitution which show “its unique character”. See also Fagan “Determining the stakes”, above at note 3; and Weinrib, LE and Weinrib, EJ “Constitutional values and private law in Canada” in Friedman, D and Barak-Erez, D (eds) Human Rights, above at note 3, 43Google Scholar.
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26 For the chairman it was relevant that the employees were not culpable.
27 Liquidator, above at note 7.
28 An issue here is that in either case the chairman would be exceeding his jurisdiction as noted on appeal by the High Court.
29 Liquidator, above at note 7. An established position across many common law jurisdictions including Malawi would hold that, since the contract of employment was constituted while the Employment Act 1964 was in force, the relevant provisions must be taken as saved by the Employment Act 1999. See Hamilton v Hamilton [1982] IR 466 at 480–81.
30 Liquidator, above at note 7. This statement muddies the water. “Trite proposition of law” implies that the principle is well established and continues to be effective.
31 While the chairman did not clarify whether there was a distinction between recruited workers and workers engaged in an ordinary way, the High Court appeared to make this distinction and suggested that only recruited workers could be repatriated.
32 The difference here is that the appellant is given a choice either to effect repatriation or simply to meet its cost.
33 Liquidator, above at note 7.
34 For examples of explicit elaboration, see notes 7, 8, 9, 10 and 11 above.
35 Barry J in Barber v Manchester Regional Hospital Board [1958] 1 ALL ER 322 at 329 and adopted in Malawi in Mwalwanda v Press (Holdings) Ltd (1981–83) 10 MLR 321.
36 Mwaungulu J cited Tomlinson v London, Midland and Scottish Railway Co [1944] 1 ALL ER 1278.
37 The section permits termination only for “a valid reason connected with the capacity or conduct of the employee or based on the operational requirements of the undertaking”.
38 Granger Nkhwazi, above at note 16.
39 See notes 10, 11, 12, 13 and 14 above.
40 Republic of Malawi Ministry of Lands, Housing, Physical Planning and Surveys Malawi National Land Policy (2002) at 1.1.3–1.1.4 and 2.3–2.4, available at <http://www.malawi.gov.mw/publications/landpol.htm> (last accessed 20 March 2007).
41 A bill to regulate the tenant worker's contract independently from the land reform process has been in the legislative process for the last ten years.
42 Banda “Land law reform”, above at note 2 at 201.
43 No 12 of 1962.
44 Banda “Land law reform”, above at note 2 at 211 (footnote 53).
45 Sec 25 of the Private Estates Act provides: “(1) Any owner may enter into a written special agreement with any African [who] … is entitled to reside on the estate of such owner; (2) … an African who enters into such agreement shall be required to work for the owner of the estate for such period during the year as may be agreed upon; Provided that: … (b) no agreement shall be approved by the minister as a special agreement unless he is satisfied that it provides for adequate security of tenure … and is fair and equitable in all circumstances.” (Emphasis added)
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49 Granger Nkhwazi, above at note 16.
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59 Id at para 31.
60 Id at para 30.
61 Van der Walt “Progressive indirect horizontal application”, above at note 57 at 352.
62 Roederer “The transformation of South African private law”, above at note 57 at 503.
63 The general constitutional limitation provision under sec 36 of the South African Constitution.
64 Van der Westhuizen J presided over the first instance hearing of Holomisa v Khumalo 2002 (3) SA 38 (T). Roederer “Post-matrix legal reasoning”, above at note 57 at 62–70 and Van der Walt “Progressive indirect horizontal application”, above at note 57 at 346.
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70 2005 (3) SA 179 (SCA), available at <http://www.supremecourtofappeal.gov.za/judgments/sca_judg/sca_2004/45603.pdf> (last accessed 21 March 2008).
71 Case CCT 52/04 (CC 13 June 2005), available at <http://www.constitutionalcourt.org.za/uhtbin/hyperion-image/J-CCT52-04> (last accessed 21 March 2008).
72 The civil law concept of “delict” is broadly comparable to the common law concept of “tort”. See Roederer “The transformation of South African private law”, above at note 57 at 460–67.
73 Kern SCA, above at note 70 at para 5.
74 Id at para 4.
75 Id at para 8.
76 Roederer “The transformation of South African private law”, above at note 57 at note 263, quoting Roederer, CJ “Law of delict” (2000) Annual Survey of South African Law 281 at 282Google Scholar: “whether the common law and its development comport with the values of the Bill of Rights is a thorny and contentious one. Without the aid of good advocacy it is understandably difficult for judges in the High Court and Supreme Court of Appeal to address the issue adequately” due to heavy case load, the adversarial system and lack of researchers.
77 Kern SCA, above at note 70 at para 10.
78 Roederer “Post-matrix legal reasoning”, above at note 57 at 74.
79 Van der Walt “Progressive indirect horizontal application”, above at note 57 at 349.
80 Kern CC, above at note 71 at para 14.
81 Id at para 14. More specifically the appellant based her argument on the rights: to be free from all forms of violence from either public or private sources (sec 12); to dignity (sec 10); to privacy (sec 14); and to substantive equality (sec 9).
82 Id at para 15.
83 Ibid.
84 2003 (6) SA 505 (CC); 2003 (10) BCLR 1100 (CC) para 28; and Kern CC id at para 16.
85 Kern CC ibid.
86 Id at para 16.
87 Id at paras 45–58.
88 Id at para 18.
89 Id at paras 18 and 52.
90 Id at para 22.
91 Id at paras 51–58.
92 See text above at note 78.
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98 1931 TPD 476. Traditionally a landowner was simply required to establish ownership of land and possession of the land by the occupier.
99 Keightley “The impact of the Extension of Security of Tenure Act”, above at note 95.
100 Van der Walt “Exclusivity of ownership”, above at note 57 at 399.
101 Id at 373–74.
102 2004 (4) SA 469 (W).
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104 Id at 399.
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109 Ibid.
110 Kern CC, above at note 71 at para 16.
111 Case CCT 31/ 99, available at: <http://www.constitutionalcourt.org.za/Archimages/1461.PDF> (last accessed 21 March 2008) at para 44.
112 Sec 13(e) is a Principle of National Policy, by which organs of the state are directed to abide. The “state” here includes the judiciary in accordance with sec 15(1) of the Malawi Constitution.
113 For example, the distinction between “deprivation” and “expropriation” of property in secs 28(2) and 44(4) or the “property clauses” in the Malawi Constitution.
114 See HJ Snijders “Privacy of contract” in Zeigler (ed) Human Rights and Private Law, above at note 14 at 105 for a European perspective on contract and horizontality based privacy.
115 Freedom is here understood in a negative sense as the absence of interference or constraint, and in the positive sense as facilitation of autonomy through the removal of interference or constraint.
116 Sec 12(iv) is a fundamental principle of the Malawi Constitution and thus an important value.
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