1.

7 The Madzimbamuto Case

1.7.1 Before the General Division
43. The legality of the Unilateral Declaration of Independence was challenged in the General Division of
the High Court of Rhodesia. In Madzimbamuto v Lardner-Burke, NO1 the facts were that the husband of the
applicant had been detained on November 6 1965 on terms of an order to that effect issued by the Minister of
Justice, Mr Lardner-Burke. The Minister was acting under emergency regulations made under section 4 of the
Emergency Powers Act, which came into force when the State of Emergency was proclaimed on 5 November
1965. The State of Emergency (which had been lawfully proclaimed) came to an end after the expiry of three
months (i.e. on 4 February 1966). It could not be lawfully extended without a resolution of the Legislative
Assembly. The members of the Legislative Assembly, ignoring the prohibition of their legislative activities
contained in the Order in Council, met and purported to extend the emergency. On this basis new regulations
were created authorising Mr Madzimbamuto’s continued detention.

44. The applicant contended that Mr Madzimbamuto’s continued detention after 4 February 1966 was
illegal because it was authorised by unlawful regulations. In the first place, the purported Minister of Justice, Mr
Lardner-Burke, had been dismissed from office, along with his colleagues, by the Governor. Because he was
not a Minister it followed that he could not utilise regulations under enabling legislation that purported to
empower the Minister to issue detention orders. Secondly, the Emergency Powers Regulations had been made
by the ‘Officer Administering the Government’. This office was not provided for in the 1961 Constitution but
was created by the 1965 ‘Constitution’ for the purpose of replacing the office of the Governor. 75 Because the
British Order in Council had stated that the 1965 Constitution was void and of no effect, it followed that,
legally, the office of Officer Administering the Government did not exist. Therefore, the ‘Officer Administering
the Government’ could not make lawful regulations. Finally, and more importantly, the British Government and
Parliament had enacted legislation which deprived the Southern Rhodesian Legislative Assembly of its power to
legislate. Accordingly, the applicant argued that the State of Emergency had not been lawfully extended and that
her husband’s detention was therefore unlawful.

45. Counsel for the respondent, Mr Lardner-Burke, attempted to argue that the Rhodesian regime was in
fact the de jure Government of Rhodesia. His alternative submission was that the regime was at least the de
facto Government, since it alone was in effective control of the country. On this basis its ‘laws’ were valid, at
least to the extent that they were necessary for the maintenance of law and order.

46. In the court of first instance, the General Division of the High Court, Lewis and Goldin JJ both held
that the Unilateral Declaration of Independence had been illegal and that the 1965 ‘Constitution’ was not
Rhodesia’s lawful Constitution. They added that Mr Smith’s regime was not the lawful Government of
Rhodesia. However, they also held that, on the basis of the doctrine of necessity, a certain degree of validity
attached to the Emergency Powers Regulations. The detention of Mr Madzimbamuto was therefore, in their
opinion, lawful. Lewis J said: ‘The [Smith regime] is ... the only effective Government of the county, and
therefore on the basis of necessity and in order to avoid chaos and a vacuum in the law, this court should give
effect to such measures of the effective Government, both legislative and administrative, as could lawfully have
been taken by the lawful Government under the 1961 Constitution for the preservation of peace and good
government and the maintenance of law and order.’76

47. During the hearing counsel for the applicant produced a certificate form the British Secretary of State
for Commonwealth Relations, Mr Arthur Bottomley. This was dated June 21, 1966 and stated:

Rhodesian Constitutional cases’, 1968 RLJ 138; Claire Palley, ‘The Judicial Process: UDI and the Southern

1 1966 (2) RLR 756 (GD), also reported in 1966 (2) SA 445 (R). For a discussion of the General Divisions decision see A.
J. G. Lang, ‘Madzimbamuto’s and Baron’s case at First Instance’, 1965 RLJ 65; A. J. E. Jaffey, ‘The
 Rhodesia Judiciary’, (1967) 30 MLR 265; R. S. Welsh, ‘The Constitutional Case in Southern Rhodesia’, (1967) 83 LQR
64; J. M. Eekelaar, ‘Splitting the Grundnorm’, (1967) 30 MLR 156; A. M. Honoré, ‘Reflections on Revolutions’, (1967) 2
Irish Jurist 268; Alan Wharam, ‘Treason in Rhodesia’, 1967 CLJ 189.
75
When UDI was declared the regime did not purport to transform the country into a republic and it continued,
nominally, as a Monarchy, under Queen Elizabeth II of Britain. However, she declined to accept any position under
the 1965 Constitution, and this led eventually to the Declaration of Republican Status in 1969. 76 Madzimbamuto v
Lardner-Burke NO and Another (GD) (supra), at 848.
‘(A) Southern Rhodesia has since 1923 been and continues to be a colony within Her
Majesty’s Dominions and the Government and Parliament of the United Kingdom have
responsibility for and jurisdiction over it.
(B)Her Majesty’s Government in the United Kingdom does not recognise Southern
Rhodesia or Rhodesia as a state either de facto or de jure.
(C)Her Majesty’s Government in the United Kingdom does not recognise any persons
whomsoever as Ministers of the Government of Southern Rhodesia either de facto or
de jure.’

48. International relations is a field that is normally managed by the executive and not the judiciary. For
this reason ‘executive’ or ‘ministerial’ certificates may be issued by the executive for the purpose of excluding
issues concerning international relations from the jurisdiction of the courts. Stephen Guest has noted that ‘the
effect of an executive certificate is that it is conclusive of the lack of de facto or de jure status of the
Government concerned.’2

49. However, Lewis J held that the effect of the certificate before him was limited to excluding United
Kingdom courts from ruling on the status of Southern Rhodesia. Because, in his opinion, Rhodesian courts were
not United Kingdom courts, it followed that they were not bound to adhere to the contents of the certificate.
Moreover, both Lewis J and Goldin J found that the certificate was not an accurate statement of the factual
situation prevailing in Rhodesia at the time, and therefore also could not be taken into account for this additional
reason. Lewis J said: ‘It would be ludicrous if this court were obliged to take judicial notice of what the
Secretary of State for Commonwealth Relations, six thousand miles away, said was the factual position in this
country and to regard that as conclusive, if in reality it was the exact opposite of what the court itself noticed to
be the true factual position.’3

50. It would appear though that Lewis J misunderstood the purpose of the certificate, which was not to
state what the factual situation was but rather, as indicated earlier, to stop the court from inquiring into
something that the executive wished to exclude from the court’s jurisdiction.4 As for the argument that
Rhodesia was not a United Kingdom court, Guest has noted that
‘... it was held in Civil Air Transport Inc. v Central Air Transport Corp.5 that such executive
certificates were binding not only on all courts within the United Kingdom but also on all
courts of those countries falling within the sovereignty of the United Kingdom. So to argue
that the Rhodesian courts did not fall within United Kingdom sovereignty was to beg the
question that the Rhodesian revolution ha[d] been successful in breaking ties of sovereignty
with the United Kingdom.’6

2 Stephen Guest, ‘Revolution and the Position of the Judiciary,’ [1980] PL 168, at page 177.
3 Madzimbamuto v Lardner-Burke NO and Another (GD) (supra), at 804.
4 Guest, op. cit., at page 180.
5 [1953] AC 70.
6 Guest, op. cit., page 177.
1.7.2 Before the Appellate Division
51. The Madzimbamuto case then went on appeal 7 to the Appellate Division of the High Court, where, by a
majority, the decision of the General Division was upheld. The five Appellate Division judges who heard
the case produced long and elaborate judgements that cannot be summarised in detail here. What follows
therefore is a consideration of some of the main points advanced by the judges in justifying their
conclusions.
52. With regard to the issue of the status of Rhodesia prior to the Unilateral Declaration of Independence,
Beadle CJ (Javis AJA concurring) held that it ‘... was a semi independent state which enjoyed internal
sovereignty and also a large measure of external sovereignty, and her subjects, by virtue of the internal
sovereignty she enjoyed, owed allegiance to her, but they also owed a residual allegiance to the United
Kingdom by virtue of the external sovereignty which that country enjoyed.’8

53. In arriving at this conclusion Beadle CJ attached great importance to the fact that the 1961 Constitution
gave the Southern Rhodesian legislature the power to make laws having extra-territorial operation. 9 He said
that ‘the significance of this power is considerable, as it is a power that is not compatible with what may be
called “colonial status”’.10 The learned Chief Justice referred with approval to the words of Professor De
Smith who in his book The New Commonwealth and Its Institutions said (at page 43): ‘Southern Rhodesia
[under the 1961 Constitution was] in a constitutional position not significantly different from that of a
Dominion in, say, 1918.’11 Beadle CJ noted that it was not until 1931 that Dominions 12 acquired the power
to legislate extra-territorially, as a result of the coming into force of section 3 of the Statute of Westminster.
This led him to observe that ‘to this extent, therefore, Southern Rhodesia possesse[d] internally, perhaps
greater political autonomy than did the great dominions before the Statute of Westminster.’ 13 In support of
this view14 reliance was also placed by the learned Chief Justice on what he called ‘the public recognition
by the United Kingdom Government ... that the
Parliament of the United Kingdom [would] not legislate for a matter within the competence of the Southern
Rhodesia legislature except with the consent of the Southern Rhodesian Government.’ 15

54. Beadle CJ acknowledged that the Unilateral Declaration of Independence was an illegal act and that the
regime maintained itself in power through unconstitutional means. However, he took the view that because
it was in effective control of the country it could be regarded as Rhodesia’s de facto Government. As far as
he was concerned the regime would only qualify as the country’s de jure Government if it was able to
firmly establish and maintain its control over the country for a further period of time. 16 In other words,
Beadle CJ saw the transition from de facto to de jure status as a kind of evolutionary process in which the
decisive consideration was whether the regime was able to establish itself in power firmly and permanently.
In his opinion there was no inherent distinction between the terms ‘de facto’ and ‘de jure’. They simply
marked different stages in a government’s constitutional history.

55. This meant, according to the learned Chief Justice, that the regime ‘... having effectively usurped the
Governmental powers granted Rhodesia under the 1961 Constitution, [could] now lawfully do anything
7 Madzimbamuto v Lardner-Burke NO and Another 1968 (2) SA 284 (RAD).
8 Madzimbamuto v Lardner-Burke NO and Another, (RAD) SA, op. cit., at page 359.
9 Section 20 (2) of the 1961 Constitution.
10 At page 299 of the judgement.
11 Quoted by Beadle CJ at 299 of the judgement. In his book, on the same page, De Smith adds that ‘in purely constitutional
terms a grant of independence at that point would not [have] greatly enhance[d] the control exercisable by Southern
Rhodesia over its domestic affairs.’
12 In 1931 the Dominions were Canada, South Africa, Australia and New Zealand.
13 At page 299 of the judgement.
14 Which Beadle CJ saw, at 299 as further entrenching what he called ‘the internal independence of Southern Rhodesia ...’
15 Ibid. at 299. As will be seen, his reliance on the convention did not find favour with the Privy Council when the case
went on appeal.
16 Ibid. at 359.
 which its predecessors could lawfully have done.’ 17 However, until the 1965 ‘Constitution’ evolved into a
‘de jure’ Constitution, Beadle CJ held that the regime’s administrative and legislative acts must conform to
the 1961 Constitution.93 His point was that until the 1965 Constitution became the country’s lawful
Constitution, it could not be regarded as a source of authority for the enactment of laws.
56. 18 This issue led inevitably to the question of where the court itself derived its authority from. The learned
Chief Justice noted that it ‘... originated from the 1961 Constitution and ... it was only because it happened
to be here as a court appointed under that Constitution at the time of the outbreak of the revolution that it
was permitted to continue.’19 However, he added that ‘the 1961 Constitution ... certainly in Rhodesia, is
now either completely defunct or at least entirely suspended; and ... it seems likely to remain so. The court
therefore can no longer derive its authority from its original source. On the other hand, until the 1965
Constitution is recognised by the court as the de jure Constitution ... the court cannot derive its authority
from ... [it] either.’20 The fact remained, nevertheless, that the court continued to operate and its orders were
still enforced. The learned Chief Justice came to the conclusion that the court’s authority arose from the fact
that the regime allowed it to function and allowed its officials to enforce its orders. He said that this did ‘not
amount to a “repudiation” by the court of the 1961 Constitution which gave it birth’ 21 but was simply ‘a
“recognition” by the court of the factual situation under which it now [sat] which is a different thing from
repudiation.’22

57. With regard to the question of the significance of the certificate issued by the British Secretary of
State for Commonwealth Affairs, Beadle CJ said it was

‘... undoubtedly evidence of the “status” of the [Rhodesian] Government, but whether it must
be regarded as decisive evidence seems to depend on the particular court which is
considering it. Here, I think, the approach of an English court might well be different from
that of this court, which is a Rhodesian and not an English court and which is sitting as a
domestic court in mediis rebus and is not merely considering the validity of a law of another
country.’23

He came to the conclusion that an English court would probably be bound by the certificate because a failure to
accept its contents might lead to the court recognising a Government or a State that was not recognised by the
United Kingdom executive. Obviously, within the United Kingdom, the courts and the executive must be seen
to be speaking with one voice on matters of this kind.24

58. Like the judges in the General Division, Beadle CJ appears to have ‘put the cart before the horse’ in stating
that Rhodesian courts were not United Kingdom courts. The status of Rhodesia in relation to United
Kingdom sovereignty was after all the very issue in contention. If Rhodesia fell within United Kingdom
sovereignty, surely its courts ought not to speak with a different voice from the lawful executive, namely
the United Kingdom executive? In the event the learned Chief Justice simply said that the certificate was
evidence of the fact that the United Kingdom did not recognise the Rhodesian regime. As such it would be
weighed up with all the other evidence in the course of arriving at a decision about the status of the
regime.25

17 Ibid. at pages 359-360.

18 Ibid. at 360.
19 Ibid. at 331.
20 Ibid.
21 Ibid.
22 Ibid.
23 At page 309 of the judgement.
24 Ibid. at page 310.
25 Ibid. See Guest, op. cit., at page 179, who is critical of Beadle CJ’s reasoning on this point.
59. Beadle CJ dealt only briefly - and, it is submitted, quite inadequately - with the issue of the validity within
Rhodesia of British legislation, such as the Southern Rhodesia Act 1965, and the various Orders in Council
created under its authority. He invoked the convention that the British Parliament would not legislate on
matters falling within the competence of the Southern Rhodesian Legislature, except at the request of the
Southern Rhodesian Government. Any British legislation that was passed in defiance of the convention
would, he suggested, ‘be regarded by local [i.e. Rhodesian] courts as ultra vires the powers of the United
Kingdom Parliament’26 and therefore invalid. He also said that because British Orders in Council had not
been promulgated in Rhodesia, it could be argued that they were invalid on that basis as well.

60. With respect, it is submitted that the idea of invalidating legislation on the ground that it has been enacted
in defiance of a constitutional convention, is not good law. As has been said already, constitutional
conventions are not rules of law and cannot crystallise into law. They do not therefore impose legally
binding obligations upon anyone or restrict the powers of legislative bodies like the United Kingdom
Parliament.27 It may be that Beadle CJ himself thought better of this line of reasoning, because he did not
pursue it further. He said: ‘I do not ... propose to examine the validity of any of these measures ... because I
do not think their validity or applicability has any significant bearing on the law to be applied in Rhodesia
today, in the revolutionary situation in which we find ourselves.’28

61. On the basis of the control that the regime actually wielded, Beadle CJ (Quenet JP, MacDonald JA and
Jarvis AJA concurring) held that the various Emergency Powers Regulations created by it were valid. 29 He
did state though that had the court still been sitting under the 1961 Constitution it would not have been
permissible for it to validate the regulations on the basis of necessity.30 In justifying this conclusion he said:
‘In the first place I cannot turn a blind eye to the fundamental principle of the doctrine of
necessity that “nobody may take advantage of a necessity of his own making.” In the second
place, this doctrine or the maxim salus populi suprema lex is so imprecise in its application
that if the court had to judge the validity of “all” the present government’s legislation by this
yardstick it would in effect be usurping the function of the legislature, because it would then
be charged with the authority of determining not merely whether one particular controversial
measure was valid, but with the general authority to review the whole field of governmental
legislation and to decide in its discretion which individual measure was necessary in the
public interest and which was not.’31

With respect, it is submitted that the difficulties cited by the learned former Chief Justice were somewhat
exaggerated. After all, determining the validity of impugned legislation is a task that all courts in countries in
which written Constitutions are supreme, are accustomed to. There was therefore nothing particularly novel
about a court reviewing legislation in order to see whether it conformed to the doctrine of necessity or not. (The
doctrine of necessity is considered in more detail later, in the course of examining Fieldsend AJA’s judgement).

62. Of the judges who concurred with Beadle CJ in finding that the regulations were valid, Quenet JP based his
decision on the fact that the United Kingdom Government, after securing the enactment of the Southern
Rhodesia Act 1965, failed to pass any legislation to provide for the internal maintenance of public order and
good government in Rhodesia. The regime in control, on the other hand was actually passing ‘laws’ and

26 At page 334 of the judgement.

27 This point has been reiterated more recently in the United Kingdom by the Court of Appeal in Manuel v AttorneyGeneral
[1983] 1 CH 77 and in Canada by that country’s Supreme Court in Reference Re Amendment of the Constitution of
Canada (1982) 125 DLR (3d)1.
28 Ibid.
29 Ibid. at page 356. However, the Appellate Division held that, on a technicality, the regulation under which Mr
Madzimbamuto was detained was invalid (being ultra vires the Enabling Act). This was soon corrected and Mr
Madzimbamuto remained in detention.
30 Ibid. at page 330.
31 Ibid. at pages 330 - 331.
 exercising executive administrative powers.32 The learned Judge President referred 33 with approval to the old
South African case of Rex v Christian34 where Sir James Rose-Innes said: ‘A law making and law enforcing
authority is essential to the very existence of a state.’ 35 Quenet JP commented: ‘[Rose-Innes] meant, I have
no doubt, that [the law making and enforcing authority] would exercise its authority. In a civilised society
every man has the right to peace, order and good government. A correlative duty rests upon the governing
power. If it is resigned, order and, with it, liberty, come to an end.’ 36 The learned Judge President’s point
was that the British Government, by failing to enforce its laws within Rhodesia, had ceased to qualify as the
de facto government of the country.

63. The most far reaching of the judgements delivered in favour of the validity of the regulations, was that of
MacDonald JA. As far as he was concerned, there is no distinction between de facto and de jure
governments. A regime that is in effective control of a state, automatically qualifies as the de jure
government.37 It is submitted that the judgement of MacDonald JA is not an accurate statement of the law
with regard to the meaning of de facto and de jure governments. Clearly, they are not synonymous terms,
since the former is a term that describes the factual power of a regime while the term de jure is indicative of
the lawful status of a regime.

64. More controversial still was MacDonald JA’s finding that the British Government had acted
unconstitutionally in dismissing Mr Smith and his colleagues from office and securing the passage of the
Southern Rhodesia Act 1965. The learned Judge of Appeal held that the actions of the British
Government involved ‘the breach of established convention’. 113 With respect, it is clear that MacDonald JA
erred on this point because, as has already been made clear, constitutional conventions are not legally
enforceable because they are not rules of law. 38 As will be seen later, the views of MacDonald JA on this point
were criticised by Lord Reid when the case went on appeal to the Privy Council.

65. The only dissenting judicial voice in the Appellate Division was that of Fieldsend AJA. He acknowledged
that executive and legislative control was firmly in the hands of the usurping authorities. 115 However, he
found that the regime had not usurped the judicial function, since they had allowed the existing judiciary to
continue functioning. This was important because it meant that the regime was ‘... not, therefore,
administering the laws in the sense necessary to constitute [it] a fully de facto government or sovereign.’39 It
would appear that the learned Acting Judge of Appeal regarded a de facto government, properly so called,
as consisting of three elements: an executive, a legislature, and a judiciary. Because the regime had only
usurped the first two elements, it could not be regarded as a full or proper de facto government. It was at
most two thirds of a de facto government. This meant in turn that the Appellate Division remained a court
constituted by and deriving its authority from, the 1961 Constitution.

66. It was on this basis that Fieldsend AJA approached the problem before the court. He said:

32 Ibid. at page 363.

33 Ibid.
34 1924 AD 101.
35 Ibid. at page 106.
36 at page 363 of the judgement.
37 Ibid. at page
416. 113 Ibid. at
page 413.
38 See J. M. Eekelaar, ‘Rhodesia: The Abdication of Constitutionalism’ (1969) 32 MLR 19, at 20-21, for a
critical discussion of the views of MacDonald JA and Beadle CJ on this point. According to Eekelaar ‘this is but
the first instance of the underlying confusion between the executive power and the properly constituted
legislature which permeates the majority Appellate Division judgements.’ 115 Ibid. at page 425.
39 Ibid. at page 428.
 ‘Judges appointed to office under a written Constitution, which provides certain fundamental
laws and restricts the manner in which those laws can be altered, must not allow rights under
that Constitution to be violated. This is a lasting duty for so long as they hold office, whether
the violation be by peaceful or revolutionary means. [A court must] … stand in the way of a
blatantly illegal attempt to tear up a constitution. If to do this is to be characterised as
counterrevolutionary, surely an acquiescence in illegality must equally be revolutionary.
Nothing can encourage instability more than for any revolutionary movement to know that, if
it succeeds in snatching power, it will be entitled ipso facto to the complete support of the
pre-existing judiciary in their judicial capacity. It may be a vain hope that the judgement of a
court will deter a usurper, or have the effect of restoring legality, but for a court to be
deterred by fear of failure is merely to acquiesce in illegality. It may be that the court’s mere
presence exercises some check on a usurper who prefers to avoid a confrontation with it.’ 40

He added that ‘… a court created by a written Constitution can have no independent existence apart from that
Constitution; it does not receive its powers from the common law and declare what its own powers are; it is not
a creature of Frankenstein which once created can turn and destroy its maker.’ 41

67. According to Fieldsend AJA the impugned provisions had not been lawfully created. He said:
‘A court which derives its existence and jurisdiction from a written Constitution cannot give
effect to anything which is not law when judged by that Constitution. To hold otherwise is to
abandon a stable anchorage and to set sail into uncharted and, indeed, unchartable seas. The
law to be administered by a municipal court is not an abstract concept, determined by
general and theoretical jurisprudential principles; it is something concrete determined solely
by the set of norms prescribed by the legal order upon which the court considering the case is
founded.’42

He was, however, prepared to accept that, in spite of this, certain acts performed by the regime could be deemed
valid on the basis of the doctrine of necessity. The learned Acting Judge of Appeal said: ‘... the normal law of
the land may, on occasions, have to give way before necessity. This is ... the case ... particularly in a situation
where the welfare of the state and its people might be at stake. In a proper case, I think it would be the court’s
duty to recognise such a situation and to act upon the principle salus populi suprema lex despite the express
provisions of the Constitution. Any departure from these express provisions must, however, be fully justified
especially where personal liberty is at stake.’43

68. The whole point of the doctrine of necessity is to prevent an administrative vacuum that would lead to
chaos. Unless at least some of the acts and ‘legislation’ of a usurping regime are accepted as valid, no
means would exist for maintaining hospitals or dealing with natural disasters, to give just two examples. On
the other hand, when invoking the doctrine of necessity, courts obviously have to consider whether doing so
would have the effect of assisting or legitimising the illegal regime.

69. Bearing in mind these contending considerations, Fieldsend AJA decided that the court could only accept as
valid acts done or ‘laws’ ‘enacted’ by the usurping regime if the court was satisfied that -

‘(a) any administrative or legislative act [was] directed to and reasonably required for the
ordinary orderly running of the country;

(b) the just rights of citizens under the 1961 Constitution [were] not defeated; and (c) there

[was] no consideration of public policy which preclude [d] the court from upholding the act,

40 Ibid. at page 430.

41 Ibid.
42 Ibid. at page 432.
43 Ibid. at page 435.
 for instance if it were intended to or did in fact in its operation directly further or entrench
the usurpation.’44

When he subjected the provision in the regulations authorising Mr Madzimbamuto’s detention to the above test,
the learned Acting Judge of Appeal came to the conclusion that it was not reasonably required for the orderly
running of the country, since it provided for automatically continued detention. 45 In other words, the impugned
provision was not saved by the doctrine of necessity because its nature and effect was such that it did not fall
within the saving parameters of the doctrine.46

1.7.3 Before the Privy Council

70. Having had her appeal dismissed by the majority of the Appellate Division, Mrs Madzimbamuto then
applied47 to the same court for leave to appeal to the Privy Council in London, on the basis of section 71 (5)
of the 1961 Constitution. That provision provided that persons who were aggrieved by determinations made
by the Appellate Division in respect of any of the provisions in the Declaration of Rights had the right to
appeal to the Privy Council. However, the majority of the Appellate Division held that the court had not
made a determination in terms of section 71 (5). Writing for the majority, Beadle CJ said that ‘there [was]
nothing in [Mrs Madzimbamuto’s] original application in the constitutional case which refer[red] to section
71 (5) or to ... any ... section in the Declaration of Rights. [Similarly] there [was] nothing in her notice of
appeal to [the Appellate Division] which [made] any reference whatsoever to section 71 ... or any ... section
of the Declaration of Rights.’48 He added that

‘the substance of the constitutional case was that the actions of the Government violated the
whole of the 1961 Constitution and not simply an odd section of the Constitution. The mere
fact that the present Government, in contravening the 1961 Constitution as a whole, could not
avoid also contravening section 58 49 does not make the original application in substance a
case concerned with the provisions of section 58 or a determination by [the Appellate
Division] under section 71.’50

Accordingly, the majority held that Mrs Madzimbamuto did not, in the circumstances, have an automatic right
to appeal to the Privy Council.51 However, the court accepted that Mrs Madzimbamuto could still apply directly
to the Privy Council for leave to appeal to it, and this was in fact what she did.52

71. In a dissenting judgement MacDonald JA agreed with the finding of the majority that, in the circumstances,
no appeal as of right lay to the Privy Council. However, his reason for arriving at this conclusion was
different from theirs. Basically, he emphasised the fact that because the Appellate Division had found that
the 1965 Constitution was the de facto Constitution of Rhodesia, the provisions of that Constitution must
guide the court. Since the 1965 Constitution did not allow for appeals to the Privy Council, it followed that
the right to appeal to it did not exist. Moreover, because the Rhodesian regime had said that it would not
recognise any order made by the Privy Council, MacDonald JA said this meant that any decision arrived at
by the Privy Council would be a brutum fulmen.53

44 Ibid. at page 444, per Fieldsend AJA.

45 Ibid. In addition, Fieldsend AJA also found that the provision was ultra vires the Enabling Act.
46 A good discussion of the doctrine of necessity in the context of the Madzimbamuto case is contained in Tayyab Mahmud,
‘Jurisprudence of Successful Treason: Coup d’Etat and Common Law’, 27 Cornell Int’l L.J. 49 (1994), at 116-118.
47 Madzimbamuto v Lardner-Burke NO and Another, 1968 RLR 192 (AD).
48 Ibid. at page 198.
49 Section 58 of the 1961 Constitution was the provision in the Declaration of Rights concerned with the protection of the
right to personal liberty.
50 At page 198 of the judgement.
51 Ibid. at page 199.
52 Ibid. at page 200.
72. Mrs Madzimbamuto appealed to the Privy Council. 54 Lord Reid, writing for the majority, held that she had
a right to approach the Privy Council. He found that the Appellate Division’s interpretation of section 71
(5) had been too narrow. His Lordship said:
‘Section 58 provided that no person shall be deprived of his personal liberty save as may be
authorised by law. The appellant’s case has been throughout that her husband has been
deprived of his personal liberty in a manner not authorised by law. It has been determined
that the law under which he is now detained is a valid law and the appellant and her husband
are aggrieved by that determination. That is in their Lordships’ view sufficient to bring
section 71 (5) into operation.’55

73. Turning to consider the merits of the case, Lord Reid rejected what had been said by some of the Rhodesian
Appellate Division judges to the effect that sovereignty in Rhodesia was divided between the United
Kingdom and Rhodesia. Lord Reid said: ‘... when a colony is acquired or annexed following on conquest or
settlement, the sovereignty of the United Kingdom Parliament extends to that colony, and its powers over
that colony are the same as its powers in the United Kingdom. So in 1923 full sovereignty over the annexed
territory of Southern Rhodesia was acquired. That sovereignty was not diminished by the limited grant of
self-government that was then made.’ 56 Similarly, Lord Reid was not prepared to accept that the creation of
Southern Rhodesian citizenship meant that a limited form of sovereignty had been conferred upon
Rhodesia.134

74. Lord Reid made it clear that the statement of the United Kingdom Government in 1961, acknowledging the
existence of a convention that the British Parliament would not legislate in respect of Southern Rhodesia
without the prior consent of the Government of Southern Rhodesia, was of no legal significance. His
Lordship said:
‘That was a very important convention but it had no legal effect in limiting the legal power of
Parliament. It is often said that it would be unconstitutional for the United Kingdom
Parliament to do certain things, meaning that the moral, political and other reasons against
doing them are so strong that most people would regard it as highly improper if Parliament
did these things. But that does not mean that it is beyond the power of Parliament to do such
things. If Parliament chose to do any of them the courts could not hold the Act of Parliament
invalid. It may be that it would have been thought before 1965 that it would be
unconstitutional to disregard this convention. But it may also be that the Unilateral
Declaration of Independence released the United Kingdom from any obligation to observe the
convention.57 Their Lordships in declaring the law are not concerned with these matters. They
are only concerned with the legal powers of Parliament.’58
75. Because, in the opinion of the majority, there had been no grant of limited sovereignty and because the
convention was of no legal significance, it was held that the Southern Rhodesia Act 1965 and the
subsequent Order in Council had full legal force in Rhodesia.59

53 Ibid. at pages 200-201.

54 Madzimbamuto v Lardner-Burke and Another [1968] 3 ALL ER 561 (PC).
55 Ibid. at page 571.
56 Ibid. at page
572. 134 Ibid. at
page 573.
57 Lord Reid’s comments here echo those of De Smith, op. cit., who at pages 42-43 said that the United Kingdom was
bound to observe the convention ‘... in the absence of a fundamental change of circumstances.’ In other words, lawful and
constitutional behaviour on the part of Rhodesia was a necessary prerequisite for the continued existence of Britain’s
moral obligations under the convention. The Unilateral Declaration of Independence constituted a ‘fundamental change of
circumstances’ such as to relieve Britain of its moral obligation to respect the convention.
58 At page 573 of the judgement.
59 Ibid.
76. As far as the majority was concerned, the Rhodesian regime was neither the de facto nor the de jure
Government of Rhodesia. Indeed, Lord Reid said that the terms ‘de facto’ and ‘de jure’ were ‘...
conceptions of international law ... quite inappropriate [for] dealing with the legal position of a usurper
within the territory of which he has acquired control.’ 60 The majority took note of the fact that the lawful
sovereign - the British Government - had taken certain steps, including the imposition of economic
sanctions, in an effort to regain control in Rhodesia. Lord Reid said that it was impossible to predict
whether those efforts would succeed.61

77. The majority decided that, in the circumstances of the case, the doctrine of necessity was inapplicable, so
that the impugned Emergency Powers Regulations could not be saved by attempting to invoke it. The
decisive consideration for their Lordships was the fact that the British Parliament had enacted the Southern
Rhodesia Act 1965 and that the subsequent Order in Council had also been created. Lord Reid said:

‘Her Majesty’s judges [i.e. the Rhodesian judges] have been put in an extremely difficult
position. But the fact that the judges among others have been put in a very difficult position
cannot justify disregard of legislation passed or authorised by the United Kingdom
Parliament, by the introduction of a doctrine of necessity which in their Lordships’ judgement
cannot be reconciled with the terms of the Order in Council. It is for Parliament and
Parliament alone to determine whether the maintenance of law and order would justify giving
effect to laws made by the usurping Government, to such extent as may be necessary for that
purpose.’62

Because the Order in Council provided that ‘... any instrument made or other act done in purported promulgation
of any Constitution for Southern Rhodesia except as authorised by Act of Parliament is void and of no effect,’ 63
it followed that the 1965 Constitution created by the Rhodesian regime was void. Because the Emergency
Powers Regulations had been made by the ‘Officer Administering the Government’, an office created by the
illegal Constitution, the Regulations were invalid and without legal force. 64

78. Lord Reid did not accept that a failure to give effect to the doctrine of necessity would mean that
Rhodesia was a place without laws. As far as he was concerned, the existence of the Southern Rhodesia
Act 1965 and the Order in Council meant that there was no legal vacuum in Southern Rhodesia. Lord Reid’s
recognition of these enactments as the law of Rhodesia has been criticised, and one academic has observed that
‘... the mere production of legislation by a legislature is not sufficient to transform the words used into law.’ 65 In
other words, the contention was that a statute does not qualify as law if it is not being enforced within the
territory in which it is supposed to apply. However, the main consideration as far as Lord Reid and the majority
were concerned, was to give effect to the cardinal principle of English Constitutional law that Parliament is
sovereign and supreme. The question of whether Parliament’s enactments were being enforced within Rhodesia
was not an issue that could be allowed to interfere with respecting the lawful supremacy of the United Kingdom
Parliament.
79. One of the Lords of the Privy Council, Lord Pearce, delivered a dissenting opinion. He agreed with much
that was said by the majority and accepted that the British Parliament had the power to alter the status of
Rhodesia to that of a colony governed directly from London. In addition Lord Pearce agreed that the
Unilateral Declaration of Independence was illegal, as were the Emergency Powers Regulations. He said:
‘The de facto status of sovereignty cannot be conceded to a rebel Government as against the true sovereign
in the latter’s courts of law. The judges under the 1961 Constitution therefore cannot acknowledge the
validity of an illegal Government set up in defiance of it.’66

60 Ibid.
61 Ibid. at page 575.
62 Ibid. at page 578.
63 Section 2 (1) of the Order in Council 1965, SI 1965 no. 1952.
64 At page 578 of the judgement.
65 R. H. Christie, ‘Practical Jurisprudence in Rhodesia’ (1969) 2 CILSA 206 at page 121.
66 At page 579 of the judgement.
80. Nevertheless, unlike the majority, Lord Pearce was prepared to accept that certain acts done by those
actually in control of Rhodesia (i.e. the illegal regime) could be recognised as valid by the court on the
basis of the doctrine of necessity. This was provided that the acts in question were ‘... reasonably required
for the ordinary orderly running of the state; ... [did] not impair the rights of citizens under the lawful
(1961) Constitution; and ... [were] not intended to and did not in fact directly help usurpation and [did] not
run contrary to the policy of the lawful sovereign.’67 In this regard Lord Pearce was in agreement with the
views expressed by Fieldsend AJA in the Appellate Division.

81. Lord Pearce did not believe that the Southern Rhodesia Act 1965 or the Order in Council excluded the
application of the doctrine of necessity. He attached great importance to the statement made by the
Governor, Sir Humphrey Gibbs on November 11, 1965 in which he said: ‘I call on the citizens of Rhodesia to
refrain from all acts which would further the objectives of the illegal authorities. Subject to that, it is the duty of
all citizens to maintain law and order in the country and to carry on with their normal tasks. This applies equally
to the judiciary, the armed services, the police, and the public service.’ 68 In a further statement issued on
November 14, 1965 the Governor added that the people must ‘... remain calm and ... assist the armed services
and the police to ... maintain law and order.’ 69 In effect, the Governor was stating that those commands of the
regime that were necessary to maintain order ought to be obeyed.

82. According to Lord Pearce there was

‘no indication in the Order in Council that it intended to exclude the doctrine of necessity ...
by enjoining (inconsistently with the Governor’s directive) continuing disobedience to every
act or command which had not the backing of lawful authority. Even had it done so, I feel
some doubt as to how far this is a possible conception when over a prolonged period no steps
are taken by the sovereign himself to do any acts of government and the result would produce
a pure and continuous chaos or vacuum. And even apart from the Governor’s directive I
would certainly not be prepared to infer such intention where it was not expressly stated.’ 70

83. By a majority, the Privy Council ruled in favour of the appellant, and ordered that her husband be released.
The Rhodesian regime refused to comply with the Privy Council order and Mr Madzimbamuto remained in
detention. Soon afterwards, in R v Ndhlovu71 the Rhodesian Appellate Division declared that the regime
had now become Rhodesia’s de jure Government and that the 1965 Constitution was now the country’s
lawful Constitution. The court did so on the basis that the regime had now fully established its control
throughout the country,72 and that this control was likely to continue.73

67 Ibid.
68 Quoted by Lord Pearce at pages 582-583 of the judgement.
69 Ibid.
70 Ibid. at page 587.
71 1968 (4) SA 515 (RAD).
72 Christie, op. cit., at page 217 says: ‘Beadle CJ’s abandonment of the conclusion he reached in Madzimbamuto, as soon as
the executive made it clear that they had reached the limit of obedience to orders of the court, would not generally be
described as good law.’ See also Goldin, The Judge, the Prince, and the Usurper - From UDI to Zimbabwe, 1990, New
York, Vantage Press, pages 114-117.
73 Lord Reid said in Madzimbamuto at 575 that the British Government was taking steps to regain control in
Rhodesia and that it was impossible to predict whether these efforts would be successful. In R v Ndhlovu the Appellate
Division held that the factual position had now changed and that it was now possible to conclude that economic sanctions
would not be successful in bringing about the regime’s downfall. The court concluded that the regime was therefore the de
jure Government. For a criticism of the reasoning adopted by the court see Donald Molteno, ‘The Rhodesian crisis and the
courts’, II CILSA, 1969, 254 at 258.