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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Under English law the executive has no power to direct the judiciary what law is to be applied. This is an appeal from a determination contained in a judgment of the Appellate Division of the High Court of Southern Rhodesia dated January 29, On March 27,the Privy Council, when granting leave to appeal, reserved until the hearing the question of the competency of and necessity for any such grant.

Ian Smith and other persons holding office as Ministers of the Government of Southern Rhodesia or as Deputy Ministers cease to hold office. Sydney Kentridge and Louis Blom-Cooper appeared for the appellant. Section 1 of the Constitution calls Southern Rhodesia a Colony, and such it remains. Chapter V deals with the judicature. In any case its effect would be overridden by the Southern Rhodesia Act of Smith being distinguished.

Mulcasterstates that allegiance cannot be got rid of, except by a treaty, to which the Crown is a party, by which the Crown’s claim to allegiance is relinquished.

It was possible to apply the Texas v. The same thing is not possible in Rhodesia. There is no rule of Roman-Dutch law which permits a court to override a statute.

Chapter IX of the Constitution, containing sections tois extremely important since it deals with amendments to the Constitution. Two reasons advanced by Beadle C.


Madzimbamuto v Lardner-Burke – Wikipedia

The relevance of what has happened since November 11,is that, when one remembers the Governor’s direction, it is fair to infer that the lawful authorities have acquiesced in some measure of recognition being given by csse police, the armed services, the civil service and the judiciary, to the acts of the unlawful authorities. This conclusion is so far madzimbamutl from legal principles that it is its own refutation. He then quoted from a statement made by the United Kingdom Government in 4: Bruffy where a statute of the Confederacy which purported to.

There is always the reservation that no act should be recognised which impairs the just right of citizens under the Constitution.

In the colony was granted a Constitution where under, inter alia, its legislature had power to make laws for the peace, order and good government of Madzkmbamuto Rhodesia and “the madzimbamuho authority There is no doubt whatever, that the British Nationality Act,places Southern Rhodesia in an unprecedented position, since while remaining a Colony it is treated similarly to the Dominions.

Her Majesty and the Government of the United Kingdom have not relinquished Madzmbamuto and continue to be responsible for and have jurisdiction over the Colony. Section 3 1 means only that if a citizen of Southern Rhodesia commits treason in Southern Rhodesia it is not to be considered as an offence against the laws of the United Kingdom and Colonies, as defined, but that is not to stop it being treason in Southern Rhodesia.

Madzimbamuto v Lardner-Burke – Pindula

It was stated that the executive, judicial casse legislative acts of the state governments or their departments so far as they did not impair or tend to. There are passages in the judgments which express the view that, even before U. The High Court of Australia had held that Rookes v. The majority of the judges, all but Field-send A. This conclusion is not permissible. Finally in Rahimbhoy Hibibhoy v.


Madzimbamuto v Lardner-Burke

It should be borne in mind that the fighting was over and the principle involved seems to have been to avoid unnecessary hardship on individual citizens and to preserve their vested rights.

Detention under any other proclamation would infringe constitutional rights.

Such representatives must necessarily have dealings with the illegal Government, and with the Ministers Furthermore the British Government maintains a residual mission, a fragment of the former High Commission. The decisions in South Africa on constitutional law have always been based on English constitutional law: Indeed, Voet and Grotius, when speaking of a usurper, speak of him as a man who “ad ministers justice,” and not merely as the one who wields executive power, Beadle C.

The court will not examine the treaty or grant under which the Crown acquired jurisdiction. That dictum shows that the doctrine could never have been applied during the war. But, as in the Civil War cases, the doctrine applies to private rights. Her Majesty’s Government may have good reasons of public policy for failing to do so.

While in a limited sense the states were entitled to deal with threats to peace and good order, it is clear that the Confederate states never had any right to try for treason.

If there is no lawful means of altering the Constitution and if the vast majority are dissatisfied with the existing government, must it be czse war or is there any legal solution for the people?

If he decides to do otherwise it is a personal political decision, not a legal one.