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.
|Published (Last):||8 November 2006|
|PDF File Size:||17.17 Mb|
|ePub File Size:||3.57 Mb|
|Price:||Free* [*Free Regsitration Required]|
The fact that the unlawful government had driven out the lawful one or that it could have returned to legality was disregarded It clearly arose out of the idea that it was necessary to preserve order and th bonds of society, even during the Civil War: National City BankM.
Dictum of Beadle C. The argument advanced by Smuts in that case shows that he was contending that the Boer Government ought to have been accorded de facto recognition, but Innes C. The cases seem to relate only to private individual relationships.
Madzimbamuto v Lardner-Burke
United States ; Williams v. The Royal Prerogative remains effective, except so far as it may have been modified or abandoned: Any doctrine of necessity, or quasi-necessity, is therefore inapplicable. It cannot do justice in the abstract.
Bruffy shows that the court did not mean acts were not to be recognised merely because some person who was required to have certain qualifications did not in fact possess those qualifications. In any case its effect would cse overridden by the Southern Rhodesia Act of Promulgation is achieved, nowadays, by publication in a printed form.
The limit thus placed on Her Majesty’s power by section was the basis of Beadle C. English constitutional law was applied throughout, reference being made particularly to Moore v. The madzimba,uto was bound to recognise the continued Sovereignty of the United Kingdom.
Lumsden 14 lays down that even where there is an appeal as of right it is still for the court a quo to consider whether there is such a right. Here the Appellate Division, by holding that the determination was not a determination madzimbbamuto constitutional rights under section 58, erred in not following Chikwakwata’s causal.
Attorney-General 65 demonstrate that an act of annexation over territory is an Act of State behind which a judge cannot go. When the Governor communicated to the Ministers the withdrawal of Her Majesty’s pleasure his action was not a “dismissal” but merely the communication of an event which operated automatically, cf. But study of section 72 2 reveals that that way would have been unworkable in the circumstances.
Madzimbamuto v Lardner-Burke – Pindula
Hancock as showing that if the power to give protection does not exist, the duty of allegiance ceases, but there are weighty authorities to the contrary. While the Appellate Division’s decision stands, the appellant cannot approach any other court in Rhodesia, since such courts would be bound by that decision.
Two reasons advanced by Beadle C. Furthermore, although under the Constitution the powers of Her Majesty in Council to legislate are limited, the powers of the United Kingdom Parliament to legislate have not been cut down. The Criminal Procedure and Evidence Act,would still remain, and the Attorney-General, not being a Minister who has been dismissed, could still prosecute. The respondents cannot point to any necessity equivalent to that existing in either Pakistan or Cyprus.
So far as legislative action is concerned, it has become impossible for taxes to be lawfully collected, or for money to be made available for any of the processes of government.
Insurance Companiesreally treated the state governments as if they were foreign governments and, in effect, applied the rules of private international law. The only other part of the Constitution to which reference need be made is Chapter IX, entitled “Amendment of the Constitution. The Southern Rhodesia Constitution Order in Council,made under that section, gave to the Legislative Assembly extensive powers of amending the Cas, 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.
Madzimbamuo recognition was necessary in February,and it has remained so ever since. The creation in and the dissolution in of the Cass of Madzinbamuto and Nyasaland were effected by Acts of the United Kingdom Parliament.
Much of the early history of the territory is set out in the report of the board in In re Southern Rhodesia. May 22, 23, 27, 29, June 11, The judges of the Appellate Division must, therefore, as Her Majesty’s judges, recognise the binding force of the Southern Rhodesia Act,and the Order in Council made thereunder.
No Sovereign other than Queen Elizabeth II is in possession of the throne, or claims to be Queen of England, and whatever else it may 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.