The Judicial Process: U.D.I. and the Southern Rhodesian Judiciary
| Published date | 01 May 1967 |
| Author | Claire Palley |
| DOI | http://doi.org/10.1111/j.1468-2230.1967.tb02273.x |
| Date | 01 May 1967 |
THE
JUDICIAL PROCESS: U.D.I. AND THE
SOUTHERN RHODESIAN JUDICIARY
MANNA
for jurisprudes is the most apt description of
Madzimbamuto
v.
Lardner-Burke
N.O.
and Others
and
Baron
v.
Ayre
N.O.
and
0thers.l
Philosophical inquiries as to the origins and binding force
of law are shown as relevant to the solution of practical problems,
but the most significant feature of this Rhodesian judgment is
that
if
its justifications, context and effect are examined along realist
lines, universally valid insights are afforded into the character of
the judicial process and the scope of judicial function. Both
Lewis and Goldin
JJ.
found that, since there was as yet
no
evidence
of a successful revolution
or
severance
of
British sovereignty,
Kelsen’s theories as to the validity of a revolutionary government
were inapplicable and the
1965
“
Constitution
”
was not therefore
the lawful Constitution of Southern Rhodesia.
As
Mr.
Smith’s
rBgime was the only effective
“
government
”
of the country,
on
the basis of necessity (Lewis
J.)
or
public policy (Goldin
J.),
which
dictated that there should be
no
breakdown of order
or
cessation of
functions by the present judiciary, the court should give effect to
such legislative and administrative measures of this effective
6‘
government
”
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.
Such measures would nonetheless be invalid
if,
either in their
purpose
or
mode of enforcement, they were shown to be hostile
to the sovereign power, to have been taken with actual intent to
foster the revolution,
or
to have impaired the just rights of citizens.
The extensions of a state of emergency in Southern Rhodesia, the
issuing of Emergency Powers (Maintenance of Law and Order)
Regulations and the detention of the applicants were, in the court’s
view, measures which
it
should enforce.
In
view of the usual judicial reluctance to acknowledge that
judges make law, surprisingly Goldin
J.
avowed that he was basing
his judgment
on
public policy.2 Lewis
J.,
with greater circum-
spection, relied
on
the
jus
gentium
as forming a part of the
Roman-Dutch common law applicable in unprecedented
situation^.^
Lord Radcliffe considers judges who do not declare their legislative
activities are wise men since general respect for law they have laid
down will be greater, its development
will
be more imperceptible,
Only a short recapitulation of the decision is required.
1
Judgment No.
GD/CIV/23/66,
Government Printer,
Salisbury,
1966.
2
At
p.
95.
3
At
p
44.
263
264
THE
MODERN
LAW REVIEW
Vor..
30
and
it
will be more easily acceptable.4 Nonetheless it can be argued
that citizens should not be deceived into believing that the burdens
flowing from a judgment are necessarily impo~ed.~ Thus,
Goldin
J.’s
acknowledgment that he was taking the responsibility of
making a choice
on
the basis of an extra-legal premis-his view
of the requirements of public policy-was admirable.
Without cynically talking of
‘‘
rationalisation
”
or
of unprin-
cipled manipulation of authorities,
it
is clear that courts can reach
the conclusions they desire and advance sound reasons for their
findings.
It
is today generally acknowledged that judges like other
mortals cannot escape their own philosophies and will, when reasons
are nicely balanced, reach a decision that will be consonant with
their
own
beliefs, even though genuinely attempting to set aside
their
own
standards of values and to ascertain in an objective spirit
what ordering of the life of the community will be
in
the circum-
stances before the court best accord with the
That judges are influenced by their beliefs is not thought
seriously to affect their decisions.
As
Paton put
it,
society makes
the fundamental assumption that
it
can “trust the judge to
be a typical representative of his day and generation.” Such an
assumption, however, cannot apply to a society which is not homo-
geneous and which is deeply divided in its values.
This
does not
mean that in the present case (since Southern Rhodesia is a plural
society in which political and economic power is wielded by a
European minority)s
it
is assumed that the judges, being Europeans
from the ruling power 6lite) are merely white Rhodesians in black
robes. Even less is
it
argued that the judgments were
“
political
”
in a pejorative sense
or
that the judges consciously used the
machinery of justice to serve personal
or
group ends.
It
is accepted
that the judges see themselves as being concerned about the com-
mon weal, and do attempt to take decisions with the public
interest in mind. The fundamental problem is
“
how do they see
the public interest?
)’
and to what extent this is affected by their
backgrounds, remembering always the foolishness of asserting
“
that
when judges are engaged in solving problems all their personal
attitudes and values become dissipated in a bright glow of
objectivity.”
4
The Law and
Its
Compass,
Northwestern,
1960,
at p.
39.
5
J.
Stone,
The Social Dimensions
of
Law and Justice,
Stevens,
1966.
p.
678.
6
B.
N.
Cardozo,
The Nature
of
the Judicial Process,
Yale,
1921,
pp.
12
and
110.
See
also Lord Wright,
Legal Essays an!, Addresses,
Cambridge,
1939,
pp. xxiv-xxv and
399.
inarticulate major premise
”
underlies
every
proceeding was approved by
a
leading South African judge,
Schreiner J.A.,
in
Daniels
v.
Daniels,
1958 (1)
S.A.
513
(A.D.).
7
Jurisprudence,
Oxford, 3rd ed.,
1964,
p.
99;
D.
Lloyd,
Jurisprudence,
Stevens,
2nd ed.,
1%4.
at pp.
330431.
8
See
Colin Leys,
European Politics in Southern Rhodesia,
Oxford.
1959;
R.
Gray,
Two Nations,
Oxford,
1960;
and
the
writer’s
Constitutional History
and Law
of
Southern Rhodesia,
Oxford,
1966.
Q
L.
L.
Fuller,
“
An Afterword: Science and the Judicial Process
”
(1966)
76
H8rv.L.R.
1604
at p.
1619.
Holmes’ view that an
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