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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Nothing in the Constitution can be construed as intending that the constitutional madzimbmauto between the Sovereign and the Colony should be governed by Roman-Dutch law, cf.
Detention without trial can never be necessary for the preservation of peace and good order, on the mere ipse dixit of a rebel Minister. Her Majesty and the Government of the United Kingdom have not relinquished Sovereignty and continue to be responsible for and have jurisdiction over the Colony.
A grant of representative institutions once made, without reserving a power of concurrent legislation, precludes the exercise of the Royal Prerogative so long as the legislative institutions continue to exist. On the same day the Governor issued this statement: They are based on the inequity of refusing to recognise transactions which had governed the day-today life of the population in the rebel states and the impossibility of unravelling and nullifying what had been done.
Her Majesty was therefore entitled to dismiss them on November 11, Where there is a written constitution the judges derive their authority from the constitution, they do not sit in vacuo, nor do they derive their authority from “Divine Right. Dictum of Innes C.
For these reasons the Board should declare that the Appellate Division’s determination was wrong, and the detention of the appellant’s husband illegal. By an order made by the respondent, Mr. The probable consequences have been exaggerated and the common law still exists, which can deal with them. But it must be noted that section 56 provides that the law to be administered by the courts shall 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.
In so far as Grotius, Suarez, Lessius, Victoria and Pufendorf state that the laws of a usurper are to be obeyed, it is on an implied mandate from the Sovereign, who would, it was said, probably prefer that they should be obeyed, rather than that the state should be exposed to chaos and anarchy. Accordingly the doctrine of necessity or implied mandate applied and the appeal should be dismissed post, pp.
If the Board should hold that the Appellate Division was wrong on that point it should grant leave irrespective of the prospects of success. The Board’s decision should be based on the latest state of facts ascertainable on the record, i. If it were open for judges to decide, from day to day, who was exercising the Sovereign power, all objectivity would go. Lord Advocate where Lord Radcliffe referred with approval to Grotius and to Van Bynkershoek and where Lord Upjohn stated that the writings of the civilians were of great persuasive force.
The Governor’s message makes clear that the Ministers are no longer recognised, and calls upon the judiciary, the armed services, the police and the public service to carry on with their normal.
The respondent did not appear. On March 27,the Privy Council, when granting leave to appeal, reserved until the hearing the question of the competency of and necessity for madzimbamuti such grant. Attorney-General34 where the same approach is adopted. The principle which seems to be established by the Statute was that an individual citizen who was called upon to perform services for a usurper, committed no wrong in so doing.
Madzimbamuto v Lardner-Burke
It adds nothing to the Order in Council. It is not for the court to govern, nor is it its duty to assess whether or not the revolution has been successful. On the question whether special leave is necessary where the Appellate Division has wrongly refused to make the declaration sought, see Madzibmamuto v. The Statute of Treason,was passed at the end of the Wars of the Roses, and its object appears to have been to cast a veil over the past, but there are those who think that it was intended to apply to the future so that faithful service to the King should not be classed as treason, if it were subsequently found that he was not the King.
Madzimbamuto v Lardner-Burke – Pindula
No doubt Southern Rhodesia was very far advanced along the road to independence, in Novemberbut it had not yet achieved it. Hunter a guardian invested his ward’s money in Confederate bonds, there was no other way in which he could have invested it, and it was held not wrong; an enquiry into motive would have resulted in chaos. The leading case on this subject is Texas v. They may alter the laws, but only so far as is necessary.
Borden 79 was clearly distinguished in Uganda v. The Governor continues to occupy Government House and asserts the rights of the legitimate Government. Barnard 16 had been wrongly decided was granted. As to the meaning of “aggrieved,” see also Attorney-General of the Gambia v. It also contravenes his constitutional rights under section 58 of the Constitution of Rhodesia, 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 prior to the coming mdzimbamuto 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 madziimbamuto be sought in the Constitution itself.
It does not deal with dual citizenship. Such recognition was necessary in February,and it has remained so ever since.
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But that convention can have no application to the events of U. Smithper Chase C.