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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By no stretch of the imagination can the proclamation of states of emergency with powers to detain without trial be included in the category of acts necessary for the existence of organised government as necessary to cas the bonds of society. Woodruff bonds issued by Arkansas were held void, Thorington v.
Clark the payment of taxes in Confederate notes was held valid. His conclusions were that in English law when the lawful Sovereign can no longer give protection he forfeits. When considering whether a government is a de facto government it would appear that the administration of justice is an important factor in the decision.
Madzimbamuto v Lardner-Burke
There is, in fact, no lawful government in existence in Rhodesia, since the lawful authorities have, for over two and a half years, made no attempt whatever to govern. Central Air Transport Corporation. McChlery 40 and Rex v.
Subject to the principle that it must not be actually in aid of the opposition power, it is immaterial in whose interest recognition is given. The creation in and the dissolution in of the Federation of Rhodesia and Nyasaland were effected by Acts of the United Kingdom Parliament. The other is where you have an invader or usurper, who ought not to be there at all. That can only be issued by the lawful Governor acting on the advice of lawful Ministers, who enjoy Her Majesty’s confidence, and on a resolution approved by the Legislative Assembly.
No Sovereign other than Queen Elizabeth II is in possession of the throne, or claims to be Queen of England, and whatever else it madaimbamuto mean, it must refer to England only, and not to a particular part of Her Majesty’s Dominions, particularly not while she is still asserting Her authority.
It follows that since Southern Rhodesia has remained a part of one realm the United Kingdom, the Colonies and Dominionswith one Sovereign at its head. As to administrative action, section 42 of the Constitution, which provides that the executive authority is vested in Her Majesty, and may be exercised on Her behalf by the Governor, is madzimbamuot by the repeal, by section 4 1 b of the Order in Council, of other sections of the Constitution.
The cases seem to relate only to private individual relationships. The Statute of Westminster,does not apply. In the paragraph referred to Blackstone was mazimbamuto of a natural-born subject.
Strickland36 but those cases do not in fact support his argument. It must either apply the law or capitulate.
Hancke and MossopSecretary of State for India v. The executive powers, in the physical sense, are being exercised by the rebel Ministers, but the High Court and the judges with one exception continue to recognise the Constitution. The relations between the Sovereign and a Colony are governed by English law, particularly in regard to the Royal Prerogative. Blackstone states that the natural-born subject of one prince to whom he owes allegiance may be entangled by subjecting himself absolutely to another, but it is his own act that brings him into these straits.
Le Quesne as amicus curiae.
The Governor’s message clearly contemplated that some degree of recognition should be granted. That application was refused, the decision in the madsimbamuto case 7 being applied. Therefore, the actions of the post Smith government, including the renewal of Madzimbamuto’s detention, were lawful.
Madzimbamuto v Lardner-Burke – Pindula
madsimbamuto The American courts looked at a system that had been operated and had passed away. Even if Her Majesty’s Government were to fail to fill the gap, by legislative action, most of the ordinary functions of government could still be continued. Jayatilake and Campbell v.
The sections, with which the Southern Rhodesian Legislature was precluded from dealing, concerned, inter alia, the office of Governor, his powers and duties sections 1, 2, 3 and 5the constitution of the Legislature, consisting of Her Majesty and the Legislative Assembly section 6the assent to bills by Her Majesty or the Governor on Her behalf section 29the power to disallow bills section 32the vesting of executive authority in Her Majesty section 42 and the Prerogative of mercy section The detention of the appellant’s husband subsequent to February 4,is, therefore, illegal.
Two reasons advanced by Beadle C. The court must form the best judgment it can as to whether the act in question was intended to or did in fact tend further to mazimbamuto the usurpation. This circumstance renders the situations comparable. This applies equally to the judiciary, the armed services, the police and the public service. Southern Rhodesia is still a colony today, and as such Her Majesty’s Government and the Parliament of Great Britain have responsibility for and jurisdiction over it.
Acts which were “not hostile in their purpose or mode of enforcement to the authority of the National Government” were valid: Where there is a written constitution the court’s powers must be exercised in accordance with that constitution: There is ample authority that the allegiance originally owed by a British subject to the Sovereign cannot be thrown off except with the Sovereign’s consent: Hancock as showing cas if the power to give protection does not exist, the duty madzimbamjto allegiance ceases, but there are weighty authorities to the contrary.