Malawi Law Examination cheat sheet

The Constitution of Malawi (1994, as amended) is supreme; under s 5 any law inconsistent with it is void to the extent of the inconsistency, and s 199(1) requires courts to interpret it so as to give effect to its principles.

Sources of law in hierarchy: Constitution; Acts of Parliament; subsidiary legislation; common law and equity (received English law under the British Central Africa/ Nyasaland Orders and the General Interpretation Act); customary law, which applies only where not repugnant to justice, morality or order.

The Constitution requires an amendment by referendum for certain entrenched provisions; most amendments require a two-thirds majority of the National Assembly (s 196), and s 196(3) lists provisions amendable only by referendum.

Chapter IV Bill of Rights (ss 15-46) binds the legislature, executive, judiciary and all persons; rights may be limited only by laws of general application and to the extent reasonable and justifiable in an open and democratic society (s 44).

Section 41(2)-(3): a person detained must be brought before a court within 48 hours; s 42 guarantees fair trial including the presumption of innocence and the right to legal representation at the State's expense where substantial injustice would otherwise occur.

Judicial review of administrative action is anchored in s 43 (access to justice) and s 108(2) (courts' inherent power to review); the High Court has supervisory jurisdiction over inferior tribunals.

The judiciary is independent under s 103; judicial officers may be removed only for incapacity or misbehaviour following the procedure in ss 119-120 (investigation by a tribunal and address by the National Assembly).

The office of the Director of Public Prosecutions (s 99) has power to institute and discontinue criminal proceedings; the Attorney General (s 98) is principal legal adviser to the Government.

Section 12 of the Constitution sets out constitutional principles (national unity, rule of law, accountability), which courts may use as interpretive aids but which do not by themselves create enforceable individual rights.

The Criminal Procedure and Evidence Code (Cap 8:01) governs arrest, bail, committal, trial and appeal; the Penal Code (Cap 7:01) defines offences such as murder (s 209), manslaughter, theft (s 278), robbery (s 300) and defilement.

Murder requires unlawful killing with malice aforethought; the mandatory sentence is death, though the courts have held that the mandatory death penalty for murder is unconstitutional in so far as it removes judicial discretion (Kafantayeni v Attorney General).

Bail: s 42(2)(e) of the Constitution creates a right to bail; the court may refuse bail where there are compelling reasons (e.g., risk of absconding, interference with witnesses, or the accused is charged with a serious offence).

Burden of proof in criminal cases rests on the prosecution throughout; the standard is proof beyond reasonable doubt; the accused need only raise a reasonable doubt (Woolmington principle, received into Malawian law).

Arrest requires informing the arrested person of the reason (s 42(1)(a)); a suspect must be brought before a court within 48 hours; confessions are admissible only if voluntary, and a caution must be administered.

The right to silence and the privilege against self-incrimination are protected; adverse inferences cannot be drawn from silence, and identification parades must follow fair procedures.

Criminal appeals lie from subordinate courts to the High Court and from the High Court to the Supreme Court of Appeal; the High Court has revisional powers over subordinate courts under the Criminal Procedure and Evidence Code.

Juvenile justice: the Child Care, Protection and Justice Act (2010) sets the age of criminal responsibility at 10 and provides for juvenile courts, diversion and non-custodial sentences; a child under 10 cannot be criminally liable.

Sentencing principles: the court considers aggravating and mitigating factors, proportionality, and the objectives of punishment, deterrence, rehabilitation and protection of society; the Sentencing Guidelines assist consistency.

Formation requires offer, acceptance, consideration, intention to create legal relations and capacity; acceptance must be communicated and must correspond exactly with the offer (the mirror image rule).

Consideration must be sufficient but need not be adequate; past consideration is generally not good consideration; performance of an existing duty owed to a third party can be good consideration (as in the received English authority).

The Contracts Act (Cap 46:01) codifies aspects of contract law; the Sale of Goods Act (Cap 48:01) governs sale of goods and implies terms as to title, description, fitness for purpose and merchantable quality.

Doctrine of frustration: a contract is discharged where performance becomes impossible or radically different due to an unforeseen event; the Contracts Act provides for adjustment of rights on frustration.

Misrepresentation (fraudulent, negligent or innocent) may entitle the innocent party to rescission and/or damages; the Misrepresentation Act principles apply, and rescission is barred where restitutio in integrum is impossible.

Remedies: damages are compensatory and aim to put the claimant in the position as if the contract had been performed (expectation measure), subject to remoteness (foreseeability) and mitigation; specific performance and injunction are discretionary equitable remedies.

Liquidated damages clauses are enforceable if they are a genuine pre-estimate of loss; penalties are unenforceable; the court looks at substance over form.

Exclusion clauses are construed contra proferentem and are subject to statutory controls; a party cannot exclude liability for its own fraud, and notice of the clause must be given before or at the time of contracting.

Capacity: minors (under 18) lack capacity except for necessaries and beneficial contracts of service; the Contracts Act and the Age of Majority Act govern.

Negligence requires a duty of care, breach, causation and damage; the duty test is foreseeability of harm plus proximity plus fairness, justice and reasonableness (Caparo-style analysis applied in Malawian courts).

The standard of care is that of the reasonable person; professionals are judged by the ordinary skilled member of their profession (Bolam principle).

Contributory negligence is governed by the Law Reform (Miscellaneous Provisions) Act; damages are reduced according to the claimant's share of responsibility.

Vicarious liability: an employer is liable for torts committed by an employee in the course of employment; the distinction between employee and independent contractor turns on control and integration tests.

Defamation: the plaintiff must show a defamatory statement, referring to the plaintiff, published to a third party; defences include truth (justification), fair comment (honest opinion), privilege (absolute and qualified) and consent.

Trespass to land is actionable per se without proof of damage; it requires unauthorised entry onto land in the possession of another; defences include licence, necessity and statutory authority.

Nuisance (private) requires unlawful interference with the use and enjoyment of land that is substantial and unreasonable; remedies include damages and injunction; the locality and sensitivity of the claimant are relevant.

The Occupiers' Liability Act imposes a duty on occupiers to take reasonable care for the safety of visitors; warnings may discharge the duty where adequate.

Damages in tort aim to restore the claimant to the position before the tort; special damages are pecuniary and must be pleaded specifically, general damages are at large; limitation periods apply (typically three years for personal injury, six years for other torts).

Land in Malawi is classified as public land, private land and customary land under the Land Act (Cap 57:01); customary land is held under customary law and may be converted to private land by adjudication and registration.

The Registered Land Act (Cap 58:01) introduced the Torrens system: title is registered and indefeasible, subject to overriding interests and fraud; the register is conclusive evidence of title.

Leases of customary land require consent of the Minister or the local authority; leases of private land exceeding a prescribed term must be registered.

The Land Acquisition Act allows the Government to compulsorily acquire land for public purposes, subject to payment of compensation; the Constitution (s 44) protects property rights subject to lawful acquisition.

Co-ownership may be joint tenancy (right of survivorship) or tenancy in common (distinct shares); severance of joint tenancy may occur by alienation, mutual agreement or operation of law.

Easements and profits à prendre are interests in land that may be registered; prescriptive easements require long uninterrupted use (the common law period applied).

Mortgages: a mortgagee's remedies include power of sale, foreclosure, appointment of receiver and possession; statutory notice requirements must be complied with before sale.

The Land Survey Act and the Physical Planning Act regulate subdivision and development; subdivision requires approval and survey before registration.

Customary land rights are recognised but not registrable in the same way; the Land Act provides for the recording of customary land rights and the establishment of land committees.

A contract for the sale of land must be in writing and signed by the parties or their agents (Law of Property Act / Statute of Frauds principles as received); the memorandum must contain the parties, property, price and other essential terms.

Conveyancing stages: agreement/offer, deposit, investigation of title, requisitions, drafting of deed of transfer, execution, stamping and registration at the Registrar of Lands.

The deed of transfer must be executed before a witness (often a Commissioner for Oaths or legal practitioner) and stamped; unstamped instruments are inadmissible in evidence until stamped.

The Registrar of Lands maintains the register; registration confers title under the Registered Land Act; priority is determined by the date of registration, not execution.

Searches: a purchaser's solicitor should conduct an official search at the Land Registry and a physical inspection; caveats may be lodged to protect unregistered interests.

Stamp duty is payable on transfers and leases at rates set by the Stamp Duty Act; failure to stamp attracts penalties and interest.

The standard conditions of sale govern matters such as risk, insurance, completion date, and the vendor's obligation to give vacant possession; the Law Society of Malawi publishes standard conditions.

Capital gains tax and property tax obligations may arise on transfer; the Malawi Revenue Authority administers these; solicitors must advise clients on tax consequences.

Trusts and settlements: land may be held on trust; the trustee's powers and duties are governed by the Trustee Act and the trust instrument; registration of trusts is required for land held in trust.

Civil proceedings in the High Court are commenced by writ of summons or originating summons under the Courts Act and the High Court Rules; subordinate courts follow the Subordinate Court Rules.

Pleadings: a statement of claim must disclose a reasonable cause of action; a defence must respond specifically; amendments are allowed before trial to determine the real issues, subject to costs.

The Evidence Act (Cap 8:02) governs admissibility; relevant evidence is admissible unless excluded by an exclusionary rule; hearsay is generally inadmissible subject to exceptions.

Burden of proof in civil cases is on the balance of probabilities; the party who asserts a fact must prove it (he who asserts must prove).

Privilege: legal professional privilege protects confidential communications between client and legal adviser; without-prejudice communications are inadmissible in litigation.

The court may order discovery and inspection of documents; failure to comply may lead to striking out or adverse inferences.

Interlocutory applications (e.g., injunction, summary judgment, security for costs) are made by summons supported by affidavit; the test for an interlocutory injunction is a serious question to be tried plus balance of convenience.

Limitation periods: actions in contract and tort are generally barred after six years; personal injury claims after three years; land claims may have longer periods; limitation must be pleaded.

Appeals: from subordinate courts to the High Court; from the High Court to the Supreme Court of Appeal; leave may be required, and the notice of appeal must be filed within the prescribed time.

The Sale of Goods Act (Cap 48:01) implies conditions as to title, correspondence with description, fitness for purpose and merchantable quality; the buyer may reject goods for breach of condition.

Bills of exchange and cheques are governed by the Bills of Exchange Act (Cap 45:01); a cheque is a bill drawn on a banker payable on demand; the holder in due course takes free from defects.

The Hire Purchase Act regulates hire-purchase agreements; it requires disclosure of the cash price, credit terms and the right to terminate; certain formalities must be observed.

Agency: an agent can bind the principal where actual or apparent authority exists; the principal must ratify unauthorised acts to be bound; the agent owes fiduciary duties.

Insurance contracts are contracts of utmost good faith (uberrimae fidei); the insured must disclose all material facts; non-disclosure entitles the insurer to avoid the policy.

Competition and consumer protection: the Competition and Fair Trading Act prohibits anti-competitive practices and unfair trading; the Competition and Fair Trading Commission enforces it.

Negotiable instruments: endorsement and delivery transfer title; a forged endorsement passes no title; the collecting banker may be protected if it acted in good faith and without negligence.

Banking: the Banking Act and the Reserve Bank of Malawi regulate banking business; customer confidentiality is a duty, subject to statutory exceptions (e.g., money laundering reporting).

Electronic transactions: the Electronic Transactions and Cyber Security Act recognises electronic signatures and records where they meet reliability requirements.

The Companies Act (Cap 46:03, as amended) governs incorporation, management and winding up; a company is a separate legal person with perpetual succession and limited liability (Salomon principle).

Types: private company (restricted transfer, no public offer), public company (may offer shares to the public), and companies limited by guarantee; registration requires memorandum and articles and a certificate of incorporation.

Directors owe fiduciary duties (good faith, proper purpose, avoidance of conflict) and duties of care and skill; they may be liable for fraudulent or wrongful trading.

Share capital: shares may be ordinary or preference; allotment requires compliance with the Act; capital maintenance rules restrict distributions to shareholders except from distributable profits.

Meetings: annual general meeting requirements, notice periods and quorum rules are set by the Act and the articles; written resolutions may be used by private companies.

Insolvency: winding up may be compulsory (by court order, usually on a creditor's petition for a debt exceeding the statutory minimum) or voluntary (members' or creditors').

Grounds for compulsory winding up include inability to pay debts (cash flow or balance sheet insolvency), just and equitable grounds, and failure to commence business within a year.

Liquidation: the liquidator collects assets, adjudicates claims, and distributes the surplus; preferential debts (e.g., employee wages, certain taxes) rank ahead of unsecured creditors.

Receivership and administration: a secured creditor may appoint a receiver; administration aims to rescue the company as a going concern; the Insolvency Act principles apply alongside the Companies Act.

Marriage in Malawi may be contracted under the Marriage Act (monogamous), the African Marriage (Christian Rites) Act, customary law, or Islamic law; the type of marriage determines the matrimonial property regime.

The Constitution (s 22) recognises the family as the natural unit of society; s 24 protects the rights of children; s 23 protects the rights of women, including equality in marriage and its dissolution.

Divorce: the grounds are set out in the Marriage Act (e.g., adultery, cruelty, desertion, insanity); the court may order maintenance, division of matrimonial property and custody arrangements.

Matrimonial property: customary marriages are generally treated as community of property; monogamous marriages under the Marriage Act are presumed to be out of community unless otherwise agreed, though courts have developed equitable distribution principles.

Maintenance: the court considers the means of the parties, the needs of the children, and the standard of living during the marriage; maintenance orders may be varied on changed circumstances.

Succession: the Wills and Inheritance Act (Cap 10:02) governs testate and intestate succession; a will must be in writing, signed by the testator and attested by two witnesses.

Intestate succession: the Act sets out shares for the surviving spouse, children and dependants; the surviving spouse is entitled to a statutory share, and the family home may be protected.

Customary succession varies by ethnic group; the Act provides a uniform statutory scheme but allows customary law to apply in certain cases, subject to the repugnancy test and the Constitution.

Child maintenance and custody: the Child Care, Protection and Justice Act and the Constitution (s 23) require that the best interests of the child be paramount in all decisions affecting children.

Judicial review is concerned with the legality, rationality and procedural propriety of decisions, not the merits; the grounds are illegality, irrationality (Wednesbury unreasonableness) and procedural impropriety.

Natural justice: the right to a fair hearing (audi alteram partem) and the rule against bias (nemo judex in causa sua); bias may be actual or apparent (the fair-minded observer test).

Legitimate expectation: a person may have a procedural or substantive expectation arising from a promise or established practice; departure may be challenged if unfair.

The High Court's supervisory jurisdiction is exercised by judicial review proceedings; the applicant must have sufficient interest (standing) and must act promptly (typically within three months, subject to extension).

Remedies: certiorari (quashing), prohibition (preventing), mandamus (compelling performance), declaration, injunction and damages (where available); these are discretionary.

Error of law on the face of the record and excess of jurisdiction are reviewable; a decision-maker must not delegate powers unless authorised, and must exercise discretion properly without fettering.

The Constitution (s 43) guarantees access to justice and the right to a fair hearing; administrative bodies must comply with constitutional fair hearing requirements.

Public bodies must give reasons where required by statute or where fairness demands it; failure to give reasons may render a decision reviewable.

Ouster clauses are construed narrowly; the courts retain jurisdiction to review decisions for jurisdictional error and breach of natural justice.

The Legal Practitioners Act and the Law Society of Malawi's rules govern admission, discipline and professional conduct; a legal practitioner must be admitted and hold a current practising certificate.

Duty of confidentiality: a legal practitioner must not disclose client information without consent, except where required by law or to prevent serious harm; the duty survives termination of the retainer.

Conflict of interest: a practitioner must not act for two clients with conflicting interests, nor act against a former client in a related matter without informed consent; the duty is both fiduciary and professional.

Client money must be held in a separate client account; the practitioner must keep accurate accounts and render bills; misappropriation is a disciplinary offence and may constitute a criminal offence.

Fees: contingency fees are generally prohibited; fee agreements must be fair and disclosed; the practitioner may sue for fees but must account for client money.

Advocacy duties: a practitioner must not mislead the court, must cite adverse authorities, and must maintain the confidentiality of client information while ensuring the court is not deceived.

Professional negligence: a practitioner may be liable in contract and tort for negligence; the standard is that of a reasonably competent practitioner, and advocates may enjoy immunity for in-court work in limited circumstances.

Practice management: firms must maintain proper records, comply with anti-money-laundering obligations (Financial Intelligence Authority requirements), and ensure continuing professional development.

Discipline: complaints are investigated by the Law Society and may be referred to the Disciplinary Committee; sanctions include reprimand, suspension and striking off.