Herman R. Hahlo*. 1. Of the great cases decided since World War II, few can surpass the Rhodesian case of Madzimbamuto v. Lardner-Burke and Another1. Under section 45 (2) in cases where the Governor is required to act on his own . even accepting the judgment in the constitutional case of Madzimbamuto v. Rhodesia that this case has been treated as a test case raising the whole question of the present constitutional position in Southern Rhodesia. It is therefore.

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No arguments will be advanced on the power of the United Kingdom Parliament to legislate for Rhodesia, either before or after November madzimbamuot,and on the question of allegiance which is irrelevant, unless the Board thinks that submissions should be made. The law then in force in the Cape of Good Hope was Roman-Dutch law and the reason for that date is that in the time of the British South Africa Madzimbamutoo the law of Cape Colony was declared to be the law to be applicable in the territories under their control.

Before November 11,the lawful Government had repeatedly found it necessary to institute states of emergency for considerable periods.

Madzimbamuto v Lardner-Burke

Hancke and Mossopper Innes C. We are satisfied that the appellant has a right of appeal which cannot be taken away.

It is maszimbamuto to see what meaning was given to the words “did not impair the rights of citizens under the Constitution. The Board’s decision should be based on madzimbamuho latest state of facts ascertainable on the record, i. As to administrative action, section 42 of the Constitution, which provides that the executive authority is vested in Her Majesty, and may be exercised on Her behalf by the Governor, is unaffected by the repeal, by section 4 1 b of the Order in Council, of other sections of the Constitution.

The doctrine was referred to in both courts below. Any act necessary for the preservation of law and order should be recognised provided the necessity for the acts is established. Acts which could legitimately be recognised include those for the csse of public order. Subject to certain provisions as to customary law the law to be administered was to be the law in force in the Colony of the Cape of Good Hope on June 10,as modified by subsequent legislation having in Southern Rhodesia “the force of law.

Madzimbamuto v Lardner-Burke – Wikipedia

The existing law and the High Court were retained for all purposes, by sections 7 and 11, respectively of the Order in Council.

In the end the Board may feel obliged to take that strict view of the situation, but, on the other hand, to take that view is to acknowledge a complete divorce between the position as it is in fact and that which exists in law. Hunter the investment of funds by a guardian in Confederate bonds was held valid, Lamar v. It was contended that the “law,” being unconstitutional, was a nullity, but all three judges held that the “law” should be read into the Constitution, by applying the doctrine of necessity, and that the new court was duly constituted.

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Miller madzimhamuto referred to in Nyali Ltd. Sovereignty over Southern Rhodesia rested with the Crown of the United Kingdom and had not been affected by the unilateral declaration of independence.

Their Lordships must now refer to the Emergency Powers Act,which remained in force under the Constitution. It must either apply the law or capitulate. All continued to act much as they had done before November Of the seven judges in the courts below, only Macdonald J. No Sovereign other than Queen Elizabeth II is in possession of the throne, or claims to be Queen of England, and whatever else madzimbamuti may mean, it must refer to England only, and not to a particular part of Her Majesty’s Dominions, particularly not while she is still asserting Her authority.

The argument that the American cases are all based on hardship, and are therefore distinguishable from the present case, is not really tenable. Attorney-General ; ii in cases of martial law: Smithper Chase C. The Regulations expired in Barnard 16 had been wrongly decided was granted.

It is clear that in modern Roman-Dutch law acse is a mere formality.

The acts which were to be recognised were described as “acts necessary to peace and good order among citizens, such for example as acts sanctioning and protecting marriage and the domestic relations, governing the course of descents, regulating the conveyance and transfer of property.

Mercury Business Machines Co. In America for four years there had been no lawful courts, but in Rhodesia the lawful courts cxse still sitting.

White 7 Wallace74 U. Against this constitutional background, the illegality of the Unilateral Declaration of Independence U. Crown – Allegiance to – Usurpation – Colony – Southern Rhodesia – Usurping government in effective control – Temporary allegiance knife owed to usurping government – Applicability of doctrine of necessity – Statute of Treason, Commissioner of Prisons, Ex parte Matovu 80 on the ground that in that case there was a contest between two competing groups as to which should control Rhode Island.

Her Majesty was therefore entitled to dismiss them on November 11, During the American Civil War, litigants would. If it be suggested that the intention with which a person was acting should be considered, the answer is that that would result.


But that doctrine is one that is unknown to British constitutional law and, while it may be true that in the Dominions British subjects owe a divided allegiance to Her Majesty, nevertheless in Rhodesia, which is a colony, allegiance is owed to “The Queen of the United Kingdom and Colonies. That is not so because: That Order narrated that the territories were under the protection of His Majesty and provided by section 3.

They decided that once the ties binding a territory to the United Kingdom have been cut, that situation cannot be reversed by the United Madzijbamuto Parliament.

Although the action was taken by the lawfully appointed Governor-General the terms of his office did not authorise him to act as he did, and since he was doing something outside the scope of his constitutional powers, he was virtually in the position of a private individual: The only other part of the Constitution madzimamuto which reference need be made is Chapter IX, entitled “Amendment of the Constitution.

Further support for that proposition is derived from Van Deventer v. But even if that machinery has ceased to function it does not follow that Her Majesty’s authority over the territory has ceased, or that the judges are no longer Her Majesty’s judges.

White and Chiles it. The determination of the Appellate Division of the High Court of Southern Rhodesia against which the appellant appealed was as follows: The probable consequences have been exaggerated and the common law still exists, which can deal with them. On November 11,the Prime Minister of Southern Rhodesia madzijbamuto his colleagues issued a “Declaration of Independence” purporting to declare that Southern Rhodesia was no longer a Crown colony but was an independent sovereign state.

The construction of the Governor’s message. The sections, with which the Southern Rhodesian Legislature was precluded from dealing, concerned, inter alia, the office of Governor, his powers and duties maezimbamuto 1, 2, 3 and 5 madzimbamut, the constitution of the Legislature, consisting of Her Majesty and the Legislative Assembly section 6the assent to bills by Her Majesty or the Governor on Her behalf section 29the power to disallow bills section 32the vesting of executive authority madzimbamjto Her Majesty section 42 and the Prerogative of madzimbanuto section The court can give recognition in effect only to 1 statutes having legal effect in Southern Rhodesia, i.

Chancy 20 where Viscount Dunedin, after referring to E.