Madzimbamuto v. Lardner-Burke

Madzimbamuto v. Lardner-Burke
Court	Judicial Committee of the Privy Council
Decided	23 July 1968
Citation(s)	[1969] AC 645
Case history
Appealed from	High Court of Southern Rhodesia
Court membership
Judges sitting	Lord Reid, Lord Morris of Borth-y-Gest, Lord Pearce, Lord Wilberforce, Lord Pearson
Case opinions
Decision by	Lord Reid

Madzimbamuto v. Lardner-Burke is a 1968 decision of the Judicial Committee of the Privy Council concerning the legality of the Unilateral Declaration of Independence made by Rhodesia (or Southern Rhodesia) in 1965.

Background

In 1965, the British Crown colony of Southern Rhodesia (or Rhodesia), which had been self-governing since 1923, unilaterally declared its independence. The British government considered this unilateral declaration of independence (or UDI) to be illegal, and refused to recognize the legitimacy of the post-UDI Rhodesian government, as did most other countries. At the same time, the Governor of Southern Rhodesia dismissed the entire Rhodesian government, led by the Prime Minister Ian Smith, which had declared independence. Smith's government refused to recognize the validity of their dismissal, and continued to act as Rhodesia's government.

In 1965, before UDI, the Rhodesian government had enacted a series of Emergency Power Regulations. Daniel Madzimbamuto was detained under section 21 of the Regulations as a person "likely to commit acts in Rhodesia which are likely to endanger the public safety, disturb or interfere with public order or interfere with the maintenance of any essential service".

In 1966, after UDI, the 1965 Regulations expired, but the state of emergency created by the 1965 Regulations was prolonged by the Rhodesian Legislative Assembly, which also made a series of new Emergency Regulations. Madzimbamuto's detention was then renewed under these new Regulations.

Madzimbamuto's wife, Stella Madzimbamuto, then challenged the legality of her husband's detention, on the grounds that the prolongation of the state of emergency was unlawful. The Minister of Justice Desmond Lardner-Burke, who had made the Order for Madzimbamuto's continuing detention, was named as Respondent.

The courts below

In the High Court of Southern Rhodesia, Lewis J. (Goldin J. concurring) found Madzimbamuto's detention to be lawful. Though he acknowledged that Rhodesia's 1965 Constitution, made without reference to the British Parliament and proclaimed into force by the Unilateral Declaration of Independence, was not lawfully made, he nevertheless decided to recognize the legislative power of the new Rhodesian government, as doing otherwise would create a legal vacuum. Therefore, the actions of the post-1965 Smith government, including the renewal of Madzimbamuto's detention, were lawful.

The case was then appealed to the Appellate Division of the High Court. The Appellate Division ruled that a fresh detention Order had to be made in order for Madzimbamuto's detention to continue under the 1966 Regulations, but found that the Smith government was the de facto government of Rhodesia by virtue of its "effective control over the state's territory", and could "lawfully do anything which its predecessor could law fully have done". However, the Appellate Division withheld de jure recognition of the Smith government. The Appellate Division also declined to recognize the validity of the 1965 Constitution, ruling instead that the 1961 Constitution still applied to the territory.

Leave to appeal to the Judicial Committee of the Privy Council was then sought. The Appellate Division refused to grant the leave. Nevertheless, the appeal was granted by way of special leave to appeal by Order in Council. Arguments were heard over ten days from May to July 1968. Sydney Kentridge and Louis Blom-Cooper appeared for the Appellant. The Respondent did not appear.

Judgment of the Privy Council

The three main questions considered by the Privy Council were as follows:

1. What was the legal effect in Southern Rhodesia of the Southern Rhodesia Act 1965 and the Order in Council which, accompanied it?
2. Can the usurping Government now in control in Southern Rhodesia be regarded for any purpose as a lawful Government?
3. If not, to what extent, if at all, are the Courts of Southern Rhodesia entitled to recognise or give effect to its legislative or administrative acts?