Malawi Law Examination flashcards

32 cards. Read the term and the definition here. The deck at the top of this page is optional.

Section 5 supremacy clause

Section 5 of the Malawi Constitution declares the Constitution supreme and voids any law inconsistent with it to the extent of the inconsistency.

Section 42 fair trial

Section 42 guarantees fair trial rights including the presumption of innocence, adequate time to prepare a defence, and legal representation where substantial injustice would otherwise result.

48-hour court appearance

Under section 41(2) of the Constitution, a person arrested or detained must be brought before a court within 48 hours of arrest or detention.

Murder definition Malawi

Under section 209 of the Penal Code, murder is unlawful killing with malice aforethought; the mandatory death sentence has been held unconstitutional for removing judicial discretion.

Bail right and refusal

Section 42(2)(e) creates a right to bail, which may be refused only where compelling reasons exist, such as flight risk or interference with witnesses.

Proof beyond reasonable doubt

In criminal cases the prosecution bears the burden of proving every element of the offence beyond reasonable doubt; the accused need only raise a reasonable doubt.

Mirror image rule

An acceptance must correspond exactly with the terms of the offer; a purported acceptance introducing new terms operates as a counter-offer, not an acceptance.

Consideration rule

Consideration must be sufficient but need not be adequate; it must be given in exchange for the promise and cannot be past consideration.

Frustration doctrine

A contract is discharged by frustration where an unforeseen event renders performance impossible or radically different from what was originally contemplated.

Negligence duty test

A duty of care arises where harm is foreseeable, there is proximity between the parties, and it is fair, just and reasonable to impose the duty.

Contributory negligence effect

Where a claimant's own negligence contributes to the harm, damages are reduced according to the claimant's share of responsibility under the Law Reform (Miscellaneous Provisions) Act.

Defamation elements

A defamatory statement must be published to a third party, refer to the plaintiff, and tend to lower the plaintiff in the estimation of right-thinking members of society.

Torrens system Malawi

Under the Registered Land Act, title is registered and indefeasible; the register is conclusive evidence of title, subject to overriding interests and fraud.

Customary land conversion

Customary land may be converted to private land through adjudication, survey and registration, after which it is held under the Registered Land Act.

Joint tenancy survivorship

A joint tenancy carries the right of survivorship, so on the death of one joint tenant the interest passes to the surviving joint tenants, not under the will.

Land sale writing requirement

A contract for the sale of land must be evidenced in writing and signed by the parties or their authorised agents to be enforceable.

Registration priority rule

Under the Registered Land Act, priority of interests in registered land is determined by the date of registration, not by the date of execution of the instrument.

Stamp duty on transfers

Stamp duty is payable on instruments of transfer and leases at rates prescribed by the Stamp Duty Act; unstamped instruments are inadmissible in evidence until stamped.

Balance of probabilities

In civil proceedings the party bearing the burden must prove the facts on the balance of probabilities, meaning it is more likely than not that the fact is true.

Legal professional privilege

Confidential communications between a client and legal adviser for the purpose of obtaining legal advice are privileged and cannot be disclosed without the client's consent.

Interlocutory injunction test

The court grants an interlocutory injunction where there is a serious question to be tried and the balance of convenience favours preserving the status quo.

Sale of goods implied terms

The Sale of Goods Act implies conditions as to title, description, fitness for purpose and merchantable quality; breach of condition entitles the buyer to reject the goods.

Uberrimae fidei insurance

Insurance contracts require utmost good faith; the insured must disclose all material facts, and non-disclosure entitles the insurer to avoid the policy.

Holder in due course

A holder in due course takes a negotiable instrument in good faith, for value, without notice of defects, and takes free from most defences.

Separate legal personality

A company is a separate legal person from its shareholders and directors, with perpetual succession and liability limited to its own assets.

Compulsory winding up ground

A company may be wound up compulsorily on a creditor's petition where it is unable to pay its debts or on just and equitable grounds.

Preferential debts order

In liquidation, preferential debts such as employee wages and certain statutory taxes rank ahead of unsecured creditors but behind secured creditors and liquidation expenses.

Wills Act formalities

A will must be in writing, signed by the testator or by someone in the testator's presence and direction, and attested by two witnesses.

Best interests of child

Under the Constitution and the Child Care, Protection and Justice Act, the best interests of the child are paramount in all decisions affecting children.

Wednesbury unreasonableness

A decision is irrational where it is so unreasonable that no reasonable decision-maker, properly directing itself on the relevant material, could have reached it.

Audi alteram partem

The rule requires that a person affected by a decision be given notice of the case and a fair opportunity to be heard before the decision is made.

Client account rule

Client money must be held in a separate client account, kept distinct from the practitioner's own funds, and accounted for accurately to the client.