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 doubt Southern Rhodesia was very far advanced along the road to independence, in Novemberbut it had not yet achieved it.

Madzimbamuto v Lardner-Burke

That the United States Supreme Court in every case acted in favour of private rights and never “in favour of the rebel governments” is true in the sense that in no case was a rebel government ever a successful party to the proceedings, but the phrase “in favour of the rebel government” requires careful study.

Blom-Cooper of the English bar for the appellant.

The Statute of Treason, 11 Hen. If that determination is right he is lawfully detained. The appellant asked the Board to advise Her Majesty that a the above determination was wrong; and b that the following be substituted: Estate Whittaker 48 it is clear that though Roman-Dutch law was adopted to regulate the affairs of subjects in Natal inter se, the constitutional position of the Crown in regard to matters of government was unaffected.

Under section 3 of the Act of English courts lose their jurisdiction, so far as relates to Southern Rhodesia, over the acts of British subjects in Southern Rhodesia, save only as to high treason.

Insurance Companies makes it perfectly plain that the avoidance of hardship or injustice was really the basis of the doctrine and not necessity: Her Majesty was therefore entitled to dismiss them on November 11, On its face the Statute does not deal with the question who is the lawful Sovereign, it simply provides a specific defence to a specific charge of treason.

On appeal to the Privy Council against so much of the decision of the Appellate Division as determined that the regulation under which the existing detention order was made was valid and M. For reasons which will appear later their Lordships decided that the appellant has a right to appeal: In regard to Rhodesia, the right of the United Kingdom Parliament madzimbamutoo revoke madzimamuto Constitution and grant a new one was never questioned until the judgment in the court below. Furthermore, it does not protect one who owes allegiance to the lawful Sovereign, but who breaks that allegiance to serve another.


That statement of the rule is adopted. Smithper Chase C.

The authorities upon which he sought to rely, namely Kelsen, Lord Lloyd, Bryce and Salmond, may afford an accurate jurisprudential analysis of a change in the basic laws of a country but they are not authorities upon which an English court madzombamuto act.

Hunter the investment of funds by a guardian in Confederate bonds was held valid, Lamar v. He held that after November 11,a conflict of allegiance arose, in maddzimbamuto allegiance to Her Majesty as “Queen of the United Kingdom madizmbamuto Colonies” had to yield. It is for the litigant to account for something illegal, not for the judges to deviate from the law. You must assist us. The first is where there is no one who can put the state on its feet again in a lawful manner, and someone has therefore to come in to put things straight.

The Hague Regulations were merely declaratory of the pre-existing international law and therefore, even beforethe position would have been the same. Folliot and Dolder v.

The Southern Rhodesia Constitution Order in Council,made under that section, gave to the Legislative Assembly extensive powers of amending the Constitution, and in and a number of such amendments were made, but substantially the Constitution in force on November 11,was the Constitution, as amended by the Constitution Amendment Act, No. Briggs The Law of Nations, 2nd ed. National City Bank and M.

Madzimbamuto v. Lardner-Burke

Dosso 77 and Uganda v. Uren 15 the appellants succeeded in getting a verdict set aside and a new trial ordered. For these reasons no further submissions are advanced as to allegiance. Finally The Confederate Note case makes clear beyond doubt that the whole basis of these cases was the avoidance of hardship or injustice.


Madzimbamuto v Lardner-Burke – Pindula

Strickland36 but those cases do not in fact support his argument. Any doctrine of necessity, or quasi-necessity, is therefore inapplicable. The Greek members of Parliament took upon themselves to pass a “law” setting up a madzimbsmuto Supreme Court with no racial quorum, such as had been provided for by the Constitution. Cass question of allegiance may be of importance.

In Uganda there was throughout a completely independent Sovereign state, whereas in Rhodesia there has been no change of Sovereignty.

The mode of exercise was by executive act by the Governor. On November 11,Mr.

There is no reported instance of use being made of the Statute by anyone charged with treason. Whitethe fons et origo of the doctrine, the state of Texas was really treated as a foreign state. The detention of the appellant’s husband could therefore only be justified if it were necessary during a period of public emergency as defined in section 72 2. Although the appellant on her original application was technically successful, until a fresh detention order was made under a regulation which had been held not to be ultra vires she remained an “aggrieved person” within the meaning of section 71 5 of the Constitution, and the Privy Council is always prepared to entertain an appeal on matters of substance or of great public importance, particularly where the liberty of the subject is involved: 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.

It appears from the judgments of the learned judges in Southern Rhodesia that this case has been treated as a test case raising the whole question of the present constitutional position in Southern Rhodesia.

Clearly there are no concurrent powers of amendment; the sections which Her Majesty may amend or revoke may not be touched by the Government of Rhodesia at all under section