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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Madzimbamuto v Lardner-Burke

Where there is a written casw the judges derive their authority from the constitution, they do not sit madzimbamtuo vacuo, nor do madzimbamkto derive their authority from “Divine Right. The doctrine of necessity. All continued to act much as they had done before November In that case 17 a new trial was pending, which is not the case here; nevertheless the result would be the same if the appellant were not regarded as an “aggrieved” person, since no new attempt could be made to obtain an order that the appellant’s husband be set at liberty.

Clearly the judges of the Appellate Division did not regard their remarks as obiter dicta, but as a constitutionally binding decision 4: It presupposes the continuance of lawful government, and, in order for it still to apply, it would be necessary to read into it such words as “even if the Colony goes into rebellion,” a proposition which only needs to be stated to be shown to be ridiculous.

The mafzimbamuto of those writers have a weight comparable to the decisions of the courts, or of the limited number of books of authority” in English law.

Applying the rules laid down in Baldy v. If Parliament chose to do any of them the Courts could not hold the Act of Parliament invalid. How can a civil servant carry on his normal tasks, if there is no one in the country who is in fact entitled to give the required ministerial direction?

In accordance with practice a new commission was issued to every judge, so that for those who accepted, there was no conflict.

Madzimbamuto v Lardner-Burke – Wikipedia

Government his words cannot be taken even to be those of a Minister of the Crown for the United Kingdom. Leave to appeal to the Privy Council. Rhodesia – Constitution – Declaration of Independence – Revocation by United Kingdom of Legislative Assembly’s powers – Transfer of legislative and executive powers to Her Majesty in Council – Adoption by Legislative Assembly of new constitution – Validity of emergency regulations – Governor’s directive requiring judges “to maintain law and order Valliappa Cheshire22 it is too widely stated where there is a statutory right of appeal.


In November,a state of emergency was validly proclaimed by the Governor and regulations were made under section 4 of the Act of So long as this section is in operation, monies may be issued from the Consolidated Revenue Fund on the authority of a warrant issued by a Secretary of State, or by the Governor in pursuance of instructions from Her Majesty through a Secretary of State, directed to an officer of the treasury of the Government of Southern Rhodesia.

Confiscation of property was not upheld, and, a priori, detention would not have been upheld. The normal task of the judiciary is to administer the law not to stretch it. It was just a political message and can have no legislative effect. Under English law the executive has no power to direct the judiciary what law is to be applied. Tonkin49 per Innes C.

The old law has gone; how then are they to maintain law and order? If it were open for judges to decide, from day to day, who was exercising the Sovereign power, all objectivity would go.

Promulgation is achieved, nowadays, by publication in a printed form.

The cases of Uganda v. The Adelaide Steamship Co. The Board’s decision should be based on the latest state of facts ascertainable on the record, i.

The revocation of the Constitution cannot be attacked as being illegal. For these reasons the Board should declare that the Appellate Division’s determination was wrong, and the detention of the appellant’s husband illegal.

It is not for the court to govern, nor is it its duty to assess whether or not the revolution has been successful. But if the proclamation cannot be upheld, the case falls to the ground. Section 71 provides methods by which any person alleging contravention of any of any provisions of sections 57 to 68 can apply for redress, and subsection 5 provides “Any person aggrieved by any determination of the High Court under this section may appeal therefrom to Her Majesty in Council.


The only other part of the Constitution to which reference need be made is Chapter IX, entitled “Amendment of the Constitution. Your client is here as a matter of right. DurantLord Coleridge C. On the question whether special leave is necessary where the Appellate Division has wrongly refused to make the declaration sought, see Davis v.

Chancy23 if the Board is satisfied that the court below is wrong, it should be as a matter of right and not of discretion that an appeal is granted. Two reasons advanced by Beadle C. Promulgation is sufficiently achieved by publication in the capital or the country having the legislative power: The High Court of Rhodesia must therefore accept that the only reason for its existence is the Constitution granted by the Queen, and it cannot consider whether or not the rebel Government has become a lawful one.

As the Governor’s statement was made in advance of the Order in Council there is no objection to its use for the purpose of interpreting the Order. Jones a trial for treason against the Confederacy was held to be a nullity.

Attorney-Generalper Lord Denning M. Per Lord Pearce dissenting. The persons so appointed likewise hold office during Her Majesty’s pleasure: In madzimbzmuto case the same necessity would have existed to preserve law and order.

By section 22 of the Order full authority was reserved to Her Majesty to amend, add to or revoke the Order, by another Order in Council, at any time dase to the coming into force of the Constitution, but once the Constitution was in operation Her Majesty’s general powers to amend or revoke under Royal Prerogative ceased, and thereafter any power that remained in Her Majesty in Council must be sought in the Constitution itself.

The certificate of H.

Blom-Cooper of the English bar for the appellant.