1 The Bill of Rights constitutes chapter IV of the Republic of Malawi (Constitution) Act (no 20 of 1994) (the Malawi Constitution).

2 Banda, S “Land law reform: A comparative analysis of South Africa's labour tenancy contract and Malawi's tenant worker's contract” (2006) 6(2) Oxford University Commonwealth Law Journal 201Google Scholar. Also known as “tenant sharecropper”; the term “tenant sharecropper” appears in sec 3 of Malawi's Employment Act 1999 (no 6 of 2000).

3 The Bill of Rights provides a framework that coheres with, or a foundation that expressly authorizes, the enhancement of the common law position of specific classes. Fagan, A “Determining the stakes: Binding and non-binding bills of rights” in Friedmann, D and Barak-Erez, D (eds) Human Rights in Private Law (2001, Hart) 73 at 94–95Google Scholar.

4 The Constitution of the Republic of South Africa Act no 108 of 1996 (the South African Constitution) and its predecessor the Constitution of the Republic of South Africa, Act no 200 of 1993 (Interim Constitution).

5 Gloppen, S and Kanyongolo, FE “Courts and the poor in Malawi: Economic marginalization, vulnerability and the law” (2007) 5 International Journal of Constitutional Law 258 at 264CrossRefGoogle Scholar (giving reasons why litigation around the Bill of Rights is unsatisfactory).

6 Hathaway, OA “Path dependence in the law: The course and pattern of legal change in a common law legal system” (2001) 86 Iowa Law Review 601Google Scholar.

7 Benson, P “Equality of opportunity and private law” in Friedman, and Barak-Erez, (eds) Human Rights, above at note 3, 201 at 205Google Scholar. See discussion below on Liquidator, Import and Export (Mw) Limited v JL Kankhwangwa and Others, High Court of Malawi, principle registry, civil appeal no 52 of 2003 (unreported), available at: <http://www.saflii.org/mw/cases/MWHC/2003/92.html> (last accessed 1 September 2007).

8 Benson, ibid.

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.

12 Chirwa, DM “A full loaf is better than half: The constitutional protection of economic, social and cultural rights in Malawi” (2005) 49(2) Journal of African Law 207 at 236CrossRefGoogle Scholar.

13 Id at 236 (footnote omitted). In relation to Ireland, Chirwa cites the leading text on Irish Constitutional Law: G Hogan and G Whyte The Irish Constitution (JM Kelly) (1994, Butterworths) at 777 and the cases of Hanrahan v Merck Sharp and Dohme (Ireland) Ltd [1988] ILRM 629 and Meskell v CIE [1973] 1 IR 121.

14 Generally judges and legal practitioners in common law jurisdictions are reluctant to use human rights law to develop private common law due to “constitutional” and “institutional” reasons. Bagshaw, R “Privacy and tort design” in Zeigler, KS (ed) Human Rights and Private Law: Privacy as Autonomy (2007, Hart) 79 at 80Google Scholar and McMahon, B and Binchy, WLaw of Torts (3rd ed, 2000, Butterworths) at paras 122–30Google Scholar.

15 Young, AL “Horizontality and the Human Rights Act, 1998” in Zeigler, KS (ed) Human Rights and Private Law, above at note 14, 35 at 39–41Google Scholar.

16 This is recognized in Granger Nkhwazi v Commercial Bank of Malawi Limited civil cause no 233 of 1999 (21 November 2003) (unreported), available at <http://www.saflii.org/mw/cases/MWHC/2003/81.html> (last accessed 1 September 2007).

17 Chirwa “A full loaf”, above at note 12 at 236.

18 In South Africa sec 39(2). For Malawi, see note 10 above.

19 See notes 10 and 11 above. On the nature of principles, see Tridimas, TThe General Principles of EC Law (1999, Oxford University Press) at 1–4Google Scholar.

20 In Ireland, Irish academics point out that courts have not dealt with this in a comprehensive manner. See B McMahon and W Binchy Law of Torts, above at note 14 at para 1.17–1.73; O'Cinneide, C “Grasping the nettle, Irish constitutional law and direct horizontal effect” in Fedtke, J and Oliver, D (eds) Human Rights in the Private Sphere: A Comparative Study (2007, Routledge-Cavendish) 213Google Scholar.

21 Davis, DM “Constitutional borrowing: The influence of legal culture and local history in the reconstitution of comparative influence: The South African experience” (2003) 1 International Journal of Constitutional Law 181CrossRefGoogle Scholar.

22 See above at notes 7 and 16. The Bill of Rights and private common law link appears to have mostly been dealt with in the area of labour law. See Ng'ong'ola, C “Recent labour law reforms in Malawi: A review” (2002) 46(2) Journal of African Law 167CrossRefGoogle Scholar.

23 Freund, BThe African Worker (1988, Cambridge University Press)Google Scholar.

24 A recruited worker's link with family or the social security systems of their communities of origin is tenuous. Given the ineffectiveness of the state funded social security system, a recruited worker may not manage or avoid the risk resulting from termination.

25 Ng'ong'ola “Recent labour law reforms”, above at note 22 at 184 (footnote 76).

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)

46 McAuslan, P “Making law work: Restructuring land relations in Africa” (1998) 29 Development and Change 525 at 528CrossRefGoogle Scholar.

47 Gloppen and Kanyongolo “Courts and the poor in Malawi”, above at note 5.

48 For example Tørres, L (ed) The Smoking Business: Tobacco Workers in Malawi (2000, Fafo) at chap 3Google Scholar; Institute for Applied Social Science, Oslo Fafo Report No 39: “Tobacco tenants in Malawi”, available at <http://www.fafo.no/pub/rapp/339/> (last accessed 8 September 2007) at 339 (explaining these risks in the particular case of Malawian tobacco tenant workers).

49 Granger Nkhwazi, above at note 16.

50 See the South African case of De Jager v Sisana 1930 AD 71 at 84 and Banda “Land law reform”, above at note 2 at 209.

51 Sharma, KM “From ‘sanctity’ to ‘fairness’: An uneasy transition in the law of contracts?” (1999) 18 New York Law Journal of International and Comparative Law 95 at 115Google Scholar.

52 Rosenfeld, M “Contract and justice: The relation between classical contract law and social contract theory” (1985) 70 Iowa Law Review 769 at 778Google Scholar.

53 Lobban, M “Contractual fraud in law and equity c1750-c1850” (1997) 17 Oxford Journal of Legal Studies (OJLS) 441 at 441CrossRefGoogle Scholar.

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55 Lim, JS “Tongue-tied in the market: The relevance of contract law to racial-language minorities” (2003) 91 Californian Law Review 579 at 590Google Scholar.

56 Cane, P “Corrective justice and correlativity in private law” (1996) 16(3) OJLS 471Google Scholar; Weinrib, EJThe Idea of Private Law (1995, Harvard University Press)Google Scholar and Bigwood, R “Contracts by unfair advantage: From exploitation to transactional neglect” (2005) 25 OJLS 65Google Scholar.

57 Woolman, S and Davis, D “The last laugh: Du Plessis and Others v De Klerk and Another, classical liberalism and the application of fundamental rights under the interim and final constitutions” (1996) 12 South African Journal on Human Rights (SAJHR) 36Google Scholar; Van der Walt, AJ “Exclusivity of ownership, security of tenure and eviction orders: A critical evaluation of recent case law” (2002) 18 SAJHR 372Google Scholar; Van der Walt, J “Progressive indirect horizontal application of the Bill of Rights: Towards a co-operative relation between common-law and constitutional jurisprudence” (2001) 17(3) SAJHR 341Google Scholar; Roederer, CJ “Post-matrix legal reasoning: Horizontality and the rule of values in South African law” (2003) 19 SAJHR 57Google Scholar and Roederer, C “The transformation of South African private law after ten years of democracy: The role of torts (delict) in the consolidation of democracy” (2006) 37 Columbia Human Rights Law Review 447Google Scholar.

58 2002 (5) SA 401 CC 27, available at <http://www.constitutionalcourt.org.za/Archimages/9442.PDF> (last accessed 21 March 2008).

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.

65 Van der Walt id at 350–55 and Roederer id at 71–72. Roederer discusses the views of de Waal, J, Currie, I and Erasmus, GThe Bill of Rights Handbook (4th ed, 2001, Juta) at 63Google Scholar.

66 Van der Walt ibid and Roederer ibid.

67 Roederer id at 74.

68 Van der Walt “Progressive indirect horizontal application”, above at note 57 at 349 and Fagan “Determining the stakes”, above at note 3 at 84–90.

69 2002 (2) ALL SA 295 (SCA), available at <http://www.saflii.org//cgi-bin/disp.pl/za/cases/ZASCA/2001/92.html?query=%20Fedlife%20Assurance%20Ltd%20V.%20Wolfaardt> (last accessed 8 September 2007).

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.

93 Van der Walt “Exclusivity of ownership”, above at note 57 and Van der Walt, AJ “Exclusivity of ownership, security of tenure and eviction orders: A model to evaluate South African land reform legislation” (2002) Journal of South African Law 254Google Scholar.

94 Van der Walt “Exclusivity of ownership”, above at note 57 at 399.

95 Ibid.Keightley, R “The impact of the Extension of Security of Tenure Act on an owner's right to vindicate immovable property” (1999) 15 SAJHR 277Google Scholar; Van der Walt “Exclusivity of ownership”, above at note 57; and Van der Walt, A “Ownership and eviction: Constitutional rights in private law” (2005) 9 Edinburgh Law Review 32Google Scholar.

96 2000 (1) SA 589 (C); Keightley, R “When a home becomes a castle: A constitutional defence against common-law eviction proceedings: Ross v South Peninsula Municipality” (2000) 17 South African Law Journal 26Google Scholar and Van der Walt “Exclusivity of ownership”, above at note 57 at 394.

97 Keightley id at 27.

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).

103 Van der Walt “Exclusivity of ownership”, above at note 57 at 375.

104 Id at 399.

105 Fuller, LThe Morality of Law (1969, Yale University Press) especially chap II at 63Google Scholar.

106 2002 (4) 1 SCA.

107 See the discussion of The Liquidator's case and Granger Nkhwazi, above at notes 7 and 16 respectively.

108 Gloppen and Kanyongolo “Courts and the poor”, above at note 5 at 264.

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.

117 Schachter, O “Human dignity as a normative concept” (1983) 77 American Journal of International Law 848CrossRefGoogle Scholar.

118 Id at 851.

119 R Brownsword “Freedom of contract, human rights and human dignity” in D Friedmann and D Barak-Erez (eds) Human Rights in Private Law, above at note 3, 181 at 183.

120 K Gray “Property in common law systems” in GE van Maanen and AJ Van der Walt (eds) “Property law on the threshold of the 21st century” (proceedings of International Colloquium, Maastricht, 28–30 August 1996, published by Maklu) 235 at 247.

121 Roederer “Post-matrix legal reasoning”, above at note 57.

122 Yash, G “Law, development and African scholarship” (1987) 50 Modern Law Review 750 at 751Google Scholar.