Madzimbamuto v. Lardner Burke

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 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 de facto government.

In 1965, before the 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 the 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 (Beadle CJ, Quenet JP, Macdonald JA; Fieldsend AJA, dissenting) 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, which the Appellate Division refused to grant. Nevertheless, the appeal was granted by way of special leave to appeal by Order in Council. Oral 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 majority judgment of the Board was given by Lord Reid, who held that the 1965 Emergency Regulations and the dention order made under it were unlawful. Sovereignty over Southern Rhodesia rested with the Crown of the United Kingdom and had not been affected by the unilateral declaration of independence. Hence, the United Kingdom retained full law-making powers over Southern Rhodesia. Since the United Kingdom deprived the Southern Rhodesian legislature of its law-making powers through the Southern Rhodesia Act 1965, the Emergency Regulations made by that legislature were invalid.

Lord Pearce gave a dissenting judgment, in which he concluded that the detention orders should be upheld under the doctrine of necessity. Although he agreed that the United Kingdom retained full sovereignty over Southern Rhodesia, acts done by the de facto government of the territory should be recognized under the doctrine of necessity if such acts are necessary for "the ordinary orderly running of the country".