Rhodesia: The Abdication Of Constitutionalism
| Author | J. M. Eekelaar |
| Date | 01 January 1969 |
| DOI | http://doi.org/10.1111/j.1468-2230.1969.tb02281.x |
| Published date | 01 January 1969 |
RHODESIA
:
THE ABDICATION
OF
CONSTITUTIONALISM
THE Rhodesian Appellate Division has now fully recognised the
Rhodesian government as possessing
de jure
status in the country.
This is the latest
in
a complex series
of
decisions, and this article
will have served its purpose
if
it
clarifies the course of this mass of
litigation. Criticism will be confined to the major lines of argument
employed, although there are wider aspects of considerable interest.'
It
may be usefu1,to list in chronological order the judicial decisions
to be considered.
Madzimbamuto
v.
Lardner-Burke
N.O.
and Others; Baron
v.
Ayre
(a) General Division, High Court
of
Rhodesia, September 9,
(b) Appellate Division, High Court
of
Rhodesia, January 29,
Dhlamini and Others
v.
Carter
N.O.
and Another,
Appellate Divi-
Madzimbamuto
v.
Lardner-Burke N.O. and Another
(No.
a),
Appel-
Dhlamini and Others
v.
Carter
N.O.
and Another
(No.
a),
Appel-
Dhlamini and Others
v.,
Carter N.O. and Another
(No.
a),
Appel-
Madzimbamuto
v.
Lardner-Burke
N.O.
and Another,
Judicial
Archion Ndhlovu and Others
v.
The Queelt,
Appellate Division,
N.O.
and Others
1966.*
1968.s
sion, February
28,
1968.4
late Division, March
1,
196€L5
late Division, March
1,
196€L8
late Division, March
4,
1968.'
Committee of the Privy Council, July
23,
1968.*
September
18,
1968.O
1
Cj.
A.
M.
Honor6
"
Reflections
on
Revolutions
"
(1967)
2
Ir.Jur.(N.s.)
268.
2
Judgment GD/CIV/23/66;
cf.
(1967) 30 M.L.R. 156 (J. M. Eekelaar); (1967)
83
L.Q.R.
64
(R.
S.
Welsh); [1967] C.L.J.
5
(R. W.
M.
Dias); (1965)
6
Rhodesia
L.J.
65
(A.
J.
G. Lang); (1968)
7
Western Ontario L.R. 93
(8.
A.
de Smith); (1967)
Annual
Suroey
of
Commonwealth Law
89. Referred to
hereafter as
Madzimbamuto
(G.D.).
.
8
1968
(2)
S.A.
284.
Beadle C.J., Qu6net
J.P.,
Macdonald J.A., Jarvis and
Fieldsend A.JJ.A. Referred to hereafter as
Madzimbamuto
(A.D.).
4
1968
(2)
S.A.
445.
Beadle C.J., Qubnet
J.P.
and Macdonald J.A.
5
1968
(2)
S.A.
457.
Same court
as
in
Madzimbamutu
(A.D.). Hereafter referred
to
as
Madzimbamuto
(No.
2).
8
1968
(2)
S.A.
464.
Beadle C.J., Qu6net
J.P.
and Macdonald
J.A.
1968
(2)
S.A.
467.
Beadle C.J., Quhet
J.P.
and Macdonald J.A.
*
Privy Council Appeal
No.
13
of
1968. Lords Reid, Morris of Borth-y-Gest,
Pearce, 'Wilberforce and Pearson [1968]
3
All
E.R.
561. Referred to hereafter
as
Madzimbamuto
(P.C.).
9
Judgment A.D. 138/68, Government Printer, Salisbury, from
which
page
references are taken. Hereafter referred to as
Ndhlovu.
19
20
THE
MODERN
LAW
REVIEW
VOL.
32
On March
4,
1968,
Fieldsend A.J.A. resigned from the
Rhodesian Bench, and on August
13, 1968,
Dendy Young
J.
did
likewise.
In the
Madzimbamuto
case, the General Division had applied
the maxim
salus populi suprema lea:
and thereby rejected the appli-
cations claiming that the detention of the applicants was unlawful.
The Appellate Division allowed the appeals and declared the deten-
tion of the applicants to be unlawful. But this success was on a
technicality
lo
and the attack
on
the lawfulness of the rCgime,
which was central to the appellants’ case, failed.
For
this reason,
the decision was considered appealable by the applicants, and
justly
so,
for the Rhodesian authorities swiftly cured the technical
defect and never released the first applicant’s husband from
custody.ll
1.
THE
CONSTITUTIONAL
POSITION
OF
RHODESIA
BEFORE
U.D.I.
After a review of the constitutional development of Rhodesia, the
Appellate Division concluded that under the
1961
Constitution
that country became a
“
semi-independent state
”
to which its
citizens owed allegiance by reason of its internal sovereignty.l* The
controversial section
111
of that Constitution was narrowly inter-
preted
so
as not to have permitted Her Majesty in Council uni-
laterally to alter the substance of the Constitution.1s Of great
interest is the view expressed by Beadle
C.J.“
that, having made
a transfer of governmental power,
‘‘
the
U.K.
had not the right to
revoke these powers.” He appears to consider that the convention
binding the
U.K.
not to legislate on any matter within the com-
petence of the Rhodesian legislature except at her Government’s
request simply reinforced that position and he considered
it
argu-
able that the convention
‘‘
is part of the ‘fundamental law
’
[Grundnorm]
of Southern Rhodesia and cannot be withdrawn any
more than the
U.K.
Parliament can now repeal the Statute of
Westminster
1981
(which was only declaratory
of
the existing con-
ventions) and now make Canada a Crown Colony.”1s That doc-
trine would be innovatory, and was firmly rejected by the Privy
Council.16
It
would estop the
U.K.
Parliament from ret.racthg a
grant of sovereignty made under statutory powers
if
it
had not
10
It
was held that the Emergency Regulation under which the detention orders
were made was
ultra
cires
the Emergency Powers Act
in
that it allowed
for
continued detention without fresh review of each case.
11
Cf. Madzintbamuto
(P.C.), p.
571;
Mr. Baron, the second applicant, was
released by the Rhodesian authorities.
12
Beadle C.J.,
p.
302;
Quhet
J.P.,
p.
366;
Macdonald
J.A.,
p.
376.
13
Cf.
(1967) 30
M.L.R.
at p.
157,
n.
17;
Barber,
Rhodesia:
The
Road to Rebel-
14
At
p.
300.
15
p.
334,
citing Stratford A.C.J. in
Ndlwana
v.
Hofmeye,r
N.O.,
1937
A.D. at
p.
237:
“Freedom once conferred cannot be revoked. But that statement
referred
to
the Statute of Westminster
1931.
18
Madzimbamuto
(P.C.),
p.
573.
lion
(1967),
pp.
76-78.
To continue reading
Request your trial