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The Law Reports (Appeal Cases)
[1969] 1 AC 645
[PRIVY COUNCIL]
STELLA MADZIMBAMUTO APPELLANT AND DESMOND WILLIAM LARDNER-BURKE AND FREDERICK PHILLIP GEORGE RESPONDENTS
ON APPEAL FROM THE APPELLATE DIVISION OF THE HIGH COURT OF SOUTHERN RHODESIA
1968 May 22, 23, 27, 28, 29;
June 12, 13, 17, 18;
July 23
LORD REID, LORD MORRIS OF BORTH-Y-GEST, LORD PEARCE, LORD WILBERFORCE, LORD PEARSON.
Rhodesia — Constitution — Declaration of Independence — Revocation by United Kingdom of Legislative Assembly's powers — Transfer of legislative and executive powers to Her Majesty in Council — Adoption by Legislative Assembly of new constitution — Validity of emergency regulations — Governor's directive requiring judges “to maintain law and order … and to carry on with their normal tasks” — Right of an “aggrieved” person to appeal to the Privy Council — Relevance of Roman-Dutch law — Whether conceptions of de facto and de jure status applicable — Doctrine of necessity not applicable — Duty of judiciary — Statute of Treason, 1495 (11 Hen. VII, c. 1) Consultation of Southern Rhodesia 1961 (S.I. 1961, No. 2314), ss. 58 (1), 69 (1), 71 (5), 72 (2), 105, 107, emergency Powers Act, 1960 (No. 48 of 1960), ss. 3 (2), 4 — Southern Rhodesia Act, 1965 (c. 76), ss. 1, 2 (1) — Southern Rhodesia (Constitution) Order, 1965 (S.I. 1965, No. 1952), ss. 2, 3 (1) (5), 4, 6 — British Nationality Act, 1948 (11 & 12 Geo. 6, c. 56), s. 1 (1) (3).
Colony — Constitution — Powers of Crown — Southern Rhodesia — Limited grant of self-government — Convention that United Kingdom Parliament would not legislate on matters within the competence of Legislative Assembly — Unilateral “Declaration of Independence” — United Kingdom Statute and Order in Council transferring legislative and executive powers to Her Majesty in Council — Southern Rhodesia Act, 1965, ss. 1, 2 — Southern Rhodesia (Constitution) Order, 1965, ss. 2, 3 (1) (5), 4, 6.
Crown — Allegiance to — Usurpation — Colony — Southern Rhodesia — Usurping government in effective control — Temporary allegiance knife owed to usurping government — Applicability of doctrine of necessity — Statute of Treason, 1495.
International Law — Recognition — Crown colony — Territory under effective control of usurping government — Whether conceptions of de facto or de jure status applicable in courts of lawful Sovereign — Southern Rhodesia.
Parliament — Sovereignty — Colony — Southern Rhodesia — Limited grant of self-government — Convention that United Kingdom Parliament would not legislate on matters within the competence of the Legislative Assembly 646 — United Kingdom statute and Order in Council transferring executive and legislative powers to Her Majesty in Council — Southern Rhodesia Act, 1965, s. southern Rhodesia (Constitution) Order, 1965, ss. 2, 3 (1) (5), 4, 6.
Privy Council — Leave to appeal — Special leave — Southern Rhodesia — Emergency regulations made after unilateral “Declaration of Independence” — Determination by High Court by implication that detention order made thereunder valid — Detention without trial — Right of appeal to Privy Council by special leave only — Constitution of Southern Rhodesia, 1961, ss. 58 (1), 69 (1), 71 (5), 72 (2), 105, 107, 111 — Emergency Powers Act, 1960, ss. 3 (2), 4.
Roman-Dutch Law — British Colony — Applicability — Whether applicable in determining nature of sovereignty — Southern Rhodesia.
651
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