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.
|Published (Last):||20 April 2014|
|PDF File Size:||6.28 Mb|
|ePub File Size:||15.8 Mb|
|Price:||Free* [*Free Regsitration Required]|
Letters Patent of September 1,provided “Whereas we are minded to provide for the establishment of responsible government, subject to certain limitations hereinafter set forth Strickland Roman-Dutch law does not deal with the conception of a King in Parliament in the British sense at all.
In his judgment in the present case Beadle C.
The principle established by the American cases was that, in the circumstances with which the Supreme Madzimbamuti was dealing, a court of law ought to give a wide measure of recognition to the acts of an unlawful government. There is a possible doubt as to whether the Act and the Order were effective to amend the Constitution.
Madzimbamuto v Lardner-Burke
On appeal, the Appellate Division affirmed that decision in the madzibamuto, but held that the marzimbamuto regulation under which Madsimbamuto. The probable consequences have been exaggerated and the common law still exists, which can deal with them.
Section 1 of the Constitution calls Southern Rhodesia a Colony, and such it remains. Bruffy where a statute of the Confederacy which purported to. If it is invoked by a. Martial law, if proclaimed, does not depend for its validity upon the proclamation, but on the necessity which occasioned it: The true nature of the rule as to promulgation is one of interpretation of the Legislature’s intention, as is explained in Rex v. It could not be prolonged in accordance with the law as it existed on November 11,without a resolution of the Legislative Assembly.
In fact the Constitution followed closely the outlines of the Constitution, but it made no provision for any appeal to the Privy Council. The other is where you have an invader or usurper, who ought not to be there at all. The Order in Council suspending all further executive action in Rhodesia was similar to an Act of State, which the courts cannot question: But it was used in a different sense. They cannot say that it was due to the absence of any other government, since they themselves were responsible for the break-down of normal government.
It was only the legislation of the states that was ever upheld as such, although transactions in Confederate currency were sometimes upheld.
Madzimbamuto v Lardner-Burke – Pindula
It is only the latter’s application of the principle to the facts of this case that cas contested. His conclusions were that in English law when the lawful Sovereign can no longer give protection he forfeits.
Finally The Confederate Note case makes clear beyond doubt that the whole basis of these cases was the avoidance of hardship or injustice. The doctrine caae only be applied ex post facto and only in the private sector.
Lock and Keith v. Government his words cannot be taken even to be those of a Minister of the Crown for the United Kingdom. Kentridge argued that the American authorities applied only to acts within the ordinary criminal law, vase did not enable usurpers to take measures which they considered necessary for the preservation of law and order. It is clear that in modern Roman-Dutch law promulgation is a mere formality.
There madzimbakuto be no basis upon which a lawful court can come to terms with illegality. It cannot do justice in the abstract. Acts which could legitimately be recognised include those for the preservation of public order.
The new court took office and was staffed by Greek judges only. When the Governor communicated to the Ministers the withdrawal of Her Majesty’s pleasure his action was not a “dismissal” but merely the communication of an event maddzimbamuto operated automatically, cf.
Having reached an erroneous conclusion as to the Statute, Macdonald J. But that doctrine is one that is unknown to Madzikbamuto 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.
If it were open for judges to decide, from day to day, who was exercising the Sovereign power, all objectivity would go.
Insurgents would not acquire de facto status against their own Sovereign. 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, Although it might be amdzimbamuto for a civil servant to carry out his normal tasks, the courts should have had no difficulty in guiding them as to what was lawful and what was not.
Since the United Kingdom deprived the Southern Rhodesian legislature of its law-making powers through the Southern Rhodesia Actthe Emergency Regulations made by that legislature were invalid. There are passages in the judgments which express the view that, even before U. But the general power of legislation, under section 3 1 chas never been exercised at all.
In the end madzimbmauto 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 madzimmbamuto the position as it is in fact and that which exists in law. Harrison and Dryburgh  A. When exercising the Royal Prerogative of mercy, in Her Majesty’s name and on Her behalf, the Governor normally acts on the advice of the Governor’s Council.
The decisions in South Africa on constitutional law have always been based on English constitutional law: