[PRIVY COUNCIL]

AND

ON APPEAL FROM THE APPELLATE DIVISION OF THE HIGH COURT OF SOUTHERN RHODESIA

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 - 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.

Southern Rhodesia was annexed by the Crown in 1923, by virtue of an order in Council coming into operation on September 12, 1923, being given the status of a colony. In 1948 the British Nationality Act, 1948, created Southern Rhodesian citizenship. In 1961 the colony was granted a Constitution where under, inter alia, its legislature had power to make laws for the peace, order and good government of Southern Rhodesia and "the executive authority ... is vested in Her Majesty and may be exercised on Her Majesty's behalf by the Governor." The Constitution provided that the law to be administered was the law in force in the Cape of Good Hope in June 1891 (that being Roman-Dutch law), and it contained a "Declaration of Rights"¹ designed to secure "the fundamental rights and freedoms of the individual."

On November 5, 1965, a state of emergency in Southern Rhodesia was validly proclaimed by the Governor, and emergency regulations were made, under which, on the following day, the first respondent, as Minister of Justice, lawfully made an order for the detention of the appellant's husband, M., on the ground that he was "likely to commit acts in Rhodesia ... likely to endanger

1 The Constitution of Southern Rhodesia, 1961, s. 58: "(1) No person shall be deprived of his personal liberty save as may be authorised by law."

S. 69: "(1) Nothing contained in any law shall be held to be in consistent with or in contravention of ... section 58 ... to the extent that the law in question makes provision with respect to the taking during any period of public emergency of action for the purpose of dealing with any situation arising during that period;

S. 71: "(1) If any person alleges that any of the provisions of sections 57 to 68 has been or is being contravened in relation to him ... that person may apply to the High Court for redress. ... (5) Any person aggrieved by any determination of the High Court under this section may appeal therefrom to Her Majesty in Council. ..."

S. 72: "(2) In this Chapter, the expression "period of public emergency" means - ... (b) any period not exceeding three months during which a state of emergency is declared to exist ... by virtue of a proclamation issued in terms of any law for the time being in force relating to emergency powers, the reasons for the issue thereof having been communicated to the Legislative Assembly as soon as possible after the issue thereof, or by virtue of a further proclamation so issued on a resolution of the Assembly. ..."

the public safety, disturb or interfere with public order or interfere with the maintenance of any essential service." Since 1959, M. had from time to time been detained or placed in a restriction area under earlier emergency powers. On November 11, 1965, the Prime Minister of Southern Rhodesia and his colleagues issued a "Declaration of Independence" purporting to declare that Southern Rhodesia was no longer a Crown colony but was an independent sovereign state. On the same day, in a message to the people of Rhodesia, the Governor informed them that the Declaration of Independence was unconstitutional, and that the Prime Minister and his colleagues had ceased to hold office. His message called upon the people to refrain from illegal acts furthering the objects of the illegal régime, and stated as follows:

"It is the duty of all citizens to maintain law and order in the country and to carry on with their normal tasks. This applies equally to the judiciary, the armed services, the police and the public service.

On November 16, 1965, the United Kingdom Parliament passed the Southern Rhodesia Act, 1965, which declared that Southern Rhodesia continued to be part of Her Majesty's dominions and that "the Government and Parliament of the United Kingdom have responsibility and jurisdiction as heretofore for and in respect of it." The Act provided that Her Majesty might make "such provision ... as appears to Her to be necessary or expedient ..." by Order in Council. On November 18, 1965, the Southern Rhodesia (Constitution) Order, 1965, was made, section 2 (1) of which provided that

"any instrument made or other act done in purported promulgation of any constitution for Southern Rhodesia except as authorised by Act of Parliament is void and of no effect."

By section 3 (1) the powers of the legislature to make laws, of the Legislative Assembly to transact business, and of any person or authority to take steps for the reconstitution of the Legislative Assembly or the election of members thereof, were suspended, and by section 6 any law made, business transacted or step taken in contravention of the order was declared void and of no effect. The Prime Minister and his colleagues disregarded their dismissal from office, and the members of the Legislative Assembly disregarded its suspension and purported to adopt the new Constitution of 1965, established by the illegal régime, section 3 of which provided that "there shall be an officer administering the Government in and over Rhodesia." The lawful state of emergency under which M. was detained expired on February 4, 1966, but his detention was continued under fresh emergency regulations invalidly made. In proceedings for a declaration that M.'s detention was unlawful Lewis and Goldin JJ. in the General Division held that the 1965 Constitution and the Government of the Prime Minister and his colleagues were unlawful but that, it being the only effective government, necessity required that effect be given

to the fresh emergency regulations and therefore the detention was lawful. On appeal, the Appellate Division affirmed that decision in the main, but held that the particular regulation under which M. had been detained since February 4, 1966, was ultra vires and invalid, and therefore allowed the appeal. A fresh detention order was immediately made under a regulation which the Appellate Division had by implication held to be valid.

On appeal to the Privy Council against so much of the decision of the Appellate Division as determined that the regulation under which the existing detention order was made was valid and M.'s detention therefore lawful, leave for such appeal having been refused by the Appellate Division:-

Held, (1) allowing the appeal, that since the appellant, while not specifically relying upon the "Declaration of Rights" contained in the 1961 Constitution, had throughout the proceedings maintained that her husband had been unlawfully deprived of his personal liberty, and since the Appellate Division had impliedly determined that the emergency regulation under which he was detained was valid, the appellant and her husband were "aggrieved" persons within the meaning of section 71 (5) of the Constitution, and that, accordingly, the appellant had a right to appeal to the Privy Council (post, p. 720D-F).

Dictum of Beadle C.J. in Chikwakwata v. Bosman N.O., 1965 (4) S.A. 57, 59 applied.

(2) That the nature of the Sovereignty of The Queen in the United Kingdom Parliament over a British colony must be determined by the constitutional law of the United Kingdom and that it was therefore unnecessary to consider the principles of Roman-Dutch law as to the questions at issue (post, pp. 720G - 721C,E-F).

Dictum of Innes C.J. in Union Government (Minister of Lands) v. Estate Whittaker [1916] A.D. 194, 203 applied.

Dictum of Innes C.J. in Rex v. Harrison and Dryburgh [1922] A.D. 320, 330 considered.

(3) That since full Sovereignty over Southern Rhodesia was acquired when the territory was annexed by the Crown in 1923, and had not been diminished either by the limited grant of self-government then made or by United Kingdom legislation passed since that date, The Queen in the United Kingdom Parliament was still Sovereign in Southern Rhodesia in 1965 and that, accordingly. the Southern Rhodesia Act, 1965, and the Southern Rhodesia (Constitution) Order in Council, 1965, made thereunder, were of full legal effect in Southern Rhodesia; that nothing either in the British Nationality Act, 1948, or in the 1961 Constitution operated to confer even limited sovereignty upon Southern Rhodesia; and that the convention under which the Parliament of the United Kingdom did not legislate without the consent of the Government of Southern Rhodesia on matters within the competence of the Legislative Assembly, though politically important as a convention, had no legal effect in limiting the powers of the United Kingdom Parliament (post, pp. 722A - 723A, D-E).

(4) That the conceptions of international law as to de facto or de jure status were inappropriate where a court sitting in a particular territory had to decide upon the validity or otherwise of a new régime which had gained control of the territory; and that, accordingly, the usurping government in control in Southern Rhodesia could not, for any purpose, be regarded as a lawful government, since the United Kingdom Government, acting upon behalf of the lawful Sovereign, was still taking steps to regain control (post, pp. 723F - 724C, 725C-F).

Per curiam: The Statute of Treason, 1495 (11 Hen. 7, C. 1), cannot be held to have enacted a general rule that a usurping government in control must be regarded as a lawful government (post, pp. 725G - 726C).

Uganda v. Commissioner of Prisons, Ex parte Matovu [1966] E.A. 514 and The State v. Dosso [1958] 2 P.S.C.R. 180; (1958) P.L.D. 1 S.C. (PAK) 533 distinguished.

(5) (Lord Pearce dissenting) That whether or not there was a general principle depending upon necessity or upon an implied mandate from the lawful Sovereign, which recognised the need to preserve law and order within territory controlled by a usurper, no such principle could override the legal right of the Parliament of the United Kingdom to make such laws as it deemed proper for territories under Her Majesty's Sovereignty; and that, therefore, the Southern Rhodesia Act, 1965, and the Order in Council made thereunder, whereby the power to make laws was transferred from the Legislative Assembly to Her Majesty in Council, were fully effective and no purported law made by any person or body in Southern Rhodesia, no matter how necessary such law might be for preserving law and order, or otherwise, could have any legal effect whatsoever (post, p. 729B-C, G).

Texas v. White (1868) 7 Wallace 700, 733 (74 U.S.); Hanauer v. Woodruff (1872) 15 Wallace 439, 449 (82 U.S.) and Horn v. Lockhart (1873) 17 Wallace 570, 580 (84 U.S.) considered.

(6) (Lord Pearce dissenting), That the Governor's message of November 11, 1965, to the people of Southern Rhodesia being annoyed before the date of the Order in Council, could not prevail over that Order, and therefore did not justify Her Majesty's judges in Southern Rhodesia in disregarding legislation passed or authorised by the United Kingdom Parliament (post, pp. 730E - 731B).

(7) (Lord Pearce dissenting) That, accordingly, the 1965 Constitution, which purported to provide for "An officer administering the Government in and over Rhodesia," and the emergency regulations purporting to have been made by such "officer" were void and of no effect, by virtue of section 2 (1) of the Order in Council, and the determination of the Appellate Division was therefore erroneous and the order under which M. was detained was invalid (post, p. 731B-F).

Per Lord Pearce dissenting. (i) The principle applicable, based on necessity or implied mandate from the lawful Sovereign, is

that acts done by those actually in control without lawful validity may be recognised by the courts as valid so far as (a) they are directed to and reasonably required for the ordinary orderly running of the state, (b) they do not impair the rights of citizens under the lawful Constitution, and (c) they were not intended to, and do not in fact, help the usurpation directly or run counter to the policy of the lawful Sovereign (post, pp. 732D-F,733A).

(ii) The duty with which Her Majesty's judges were in fact entrusted, both by the lawful government and by the illegal régime, of continuing to sit and which the Governor's directive expressly enjoined upon them of maintaining law and order and carrying on with their normal tasks, necessarily involved the according of recognition to certain of the acts, orders and legislation of the illegal régime: the lawful government not having attempted or purported to make any provisions for the lawful needs of the territory, chaos would certainly result if the provision for those needs made by the illegal régime were disregarded (post, pp. 737B-F, 739A-G, 740D-F).

(iii) The conclusion that the detention order under which M. was detained was necessary for the ordinary orderly running of the country, was a finding of fact width which the Board should not interfere and the recognition of the illegal emergency regulation and the detention order made thereunder, although contrary to M.'s interests, did not in the true sense impair his rights under the Constitution, since the true test was whether or not the acts in question, if done by the lawful authorities, would have conflicted with those rights. Nor did the illegal emergency regulations and the detention order directly assist the usurpation or run counter to the policy of the lawful government, since the Governor's directive implied that a reasonable margin of common sense was to be applied to the factual situation existing in Southern Rhodesia, and neither the Southern Rhodesia Act, 1965, nor the Order in Council made thereunder rendered it necessary to treat all the acts or legislation of the illegal régime as invalid for any purpose at all, since neither the Act nor the Order in Council could have been intended to render compliance with the Governor's directive impossible. The Order was directed simply to preventing improper use or manipulation of the 1961 Constitution, and was not concerned, either expressly or impliedly, with any unauthorised Constitution. Accordingly the doctrine of necessity or implied mandate applied and the appeal should be dismissed (post, pp. 740F - 741A, E - 742A, F - 743D, G - 744A, 745A-F).

Decision of the Appellate Division of the High Court of Southern Rhodesia [1968] 2 S.A. 284 reversed.^*2

*2 Reporter's Note: This decision of the Privy Council was considered by the Appellate Division of the High Court of Southern Rhodesia (Beadle C.J., Quénet J.P. and Macdonald J.A.) in Archion Ndhlovu and Thirty-one Others v. The Queen (Judgment No. A.D 138/68) delivered on September 13, 1968, when the Appellate Division concluded, inter alia, that a Rhodesian court should, as far as possible

APPEAL No. 13 of 1968 by special leave from the determination of the Appellate Division of the High Court of Southern Rhodesia (Beadle C.J., Quénet J.P., Macdonald J.A., Jarvis A.J.A. and Field-send A.J.A.), dated January 29, 1968, that the first respondent, Desmond William Lardner-Burke, acting as Minister of Justice and of Law and Order in the rebel régime set up in Southern Rhodesia on November 11, 1965, was entitled to exercise powers of detention without trial over persons in Southern Rhodesia, including the appellant's husband, Daniel Nyamayaro Madzimbamuto, thereby and to that extent affirming the judgment of the General Division of the High Court of Southern Rhodesia (Lewis and Goldin JJ.), dated September 9, 1966. The second respondent, Frederick Phillip George, was the Governor of Gwelo prison. Special leave to appeal was granted by Order in Council, dated April 8, 1968, consequent upon a report of the Judicial Committee of the Privy Council (Lord Reid, Lord Morris of Borth-y-Gest, Lord Pearce, Lord Wilberforce and Lord Pearson), dated March 27, 1968.

The determination of the Appellate Division of the High Court of Southern Rhodesia against which the appellant appealed was as follows: "The rebel régime in the Colony of Southern Rhodesia is a de facto government, and as such can lawfully do anything which its predecessor could lawfully have done under the 1961 Constitution. The first respondent can, therefore, in the same manner as the lawful Minister could have done before November 11, 1965, detain persons without trial under regulations made pursuant to proclamations of states of emergency issued by the rebel régime."

The appellant asked the Board to advise Her Majesty that (a) the above determination was wrong; and (b) that the following be substituted: "(i) the rebel régime in the Colony of Southern Rhodesia is not a lawful government. Its legislative and administrative acts have no legal validity. The rebel régime is, therefore, not

respect any ruling of the Judicial Committee of the Privy Council on any point of law, as having the highest persuasive value, that the Privy Council decision made it "legally impossible for any judge ... appointed under the 1961 Constitution to carry on as a judge ... without, at least, acquiescing in infringements" of the Order in Council of 1965; that the 1961 Constitution had been annulled by the efficacy of the change in the factual situation at present existing in Southern Rhodesia; that in the circumstances it was better for the judges (who were faced with the agonising decision whether to carry on with "the peaceful task of protecting the fabric of society and maintaining law and order" or "to go") even though going might "cause chaos and work great hardship on the citizens of all races," to carry on as a court in the new situation; and that if the court carried on at all it could only do so on the basis that "the present government" was now the de jure government.

entitled to proclaim states of emergency under the Emergency Powers Act [Chapter 33], or otherwise, or to issue regulations thereunder. Any such proclamations or regulations made by the rebel régime are invalid. It cannot therefore lawfully detain persons without trial, and (ii) the detention of the appellant's husband. Daniel Nyamayaro Madzimbamuto is unlawful. It also contravenes his constitutional rights under section 58 of the Constitution of Rhodesia, 1961."

The facts are stated in the judgments.

1968. May 22, 23, 27, 29, June 11, 12. Sydney Kentridge S.C.(of the South African and Rhodesian bars) and L. J. Blom-Cooper(of the English bar) for the appellant. The main issue is whether the Appellate Division of the High Court of Southern Rhodesia was correct in holding that the first respondent, as Minister of Justice and of Law and Order in the rebel régime established in Southern Rhodesia since November 11, 1965, is entitled to detain the appellant's husband in prison, without trial, under proclamations of emergency and regulations made thereunder, issued, not by the lawful Government, but by the rebel régime. His arrest, on November 6, 1965, under emergency powers brought into force by the proclamation of a state of emergency, made on the previous day, by the governor, acting on the advice of his Ministers under section 3 of the Emergency Powers Act, 1960, was lawful. But those powers could only remain in force for three months unless lawfully renewed, and after the date of the unlawful declaration of independence no such renewal was possible. The extension of the state of emergency required a resolution of the Legislative Assembly and a proclamation by the Governor, neither of which events has occurred. The detention of the appellant's husband subsequent to February 4, 1966, is, therefore, illegal.

Possibly the most important question arising out of the appeal is whether it is the duty of Her Majesty's judges, who hold office under the legal Constitution of 1961, to maintain and enforce, so far as they are able to do so, the rights of citizens under the Constitution, or whether it is their duty to transfer their allegiance to those at present exercising physical power in the Colony.

The constitutional position in Southern Rhodesia.

The early history of the Colony is set out in In re Southern Rhodsia.² Before 1923 Rhodesia was a territory by conquest,

2 [1919] A.C. 211.

but in that year it was annexed as a Crown Colony by Order in Council. That order set up the 1923 Constitution, and provided for an elected legislature and cabinet government. The Legislature was given wide powers but there were reservations which made it impossible to say that the Colony was a fully self-governing territory. Southern Rhodesia is still a colony today, and as such Her Majesty's Government and the Parliament of Great Britain have responsibility for and jurisdiction over it. It is probably a settled colony, although Roberts-Wray, Commonwealth and Colonial Law, (1966), p. 749, suggests that it is a colony by conquest, and that the British Settlements Acts do not apply. The creation in 1953 and the dissolution in 1963 of the Federation of Rhodesia and Nyasaland were effected by Acts of the United Kingdom Parliament. In 1961, while the Federation was still in existence, the Southern Rhodesia Constitution Act, 1961, granted to Southern Rhodesia a new Constitution in the terms of the Southern Rhodesia (Constitution) Order in Council, of 1961 (S.I. 1961, No. 2314).

Section 1 (1) of the Southern Rhodesia Constitution Act, 1961, gave Her Majesty power, by Order in Council, to amend or revoke the Constitution, but by subsection (2) of that section nothing in the Act was to authorise any amendment or revocation other than as authorised under subsection (1). The Southern Rhodesia (Constitution) Order in Council, 1961, made under that section, gave to the Legislative Assembly extensive powers of amending the Constitution, and in 1964 and 1965 a number of such amendments were made, but substantially the Constitution in force on November 11, 1965, was the 1961 Constitution, as amended by the Constitution Amendment Act, No. 13 of 1964.

The existing law and the High Court were retained for all purposes, by sections 7 and 11, respectively of the Order in Council. By section 22 of the Order full authority was reserved to Her Majesty to amend, add to or revoke the Order, by another Order in Council, at any time prior to the coming into force of the Constitution, but once the Constitution was in operation Her Majesty's general powers to amend or revoke under Royal Prerogative ceased, and thereafter any power that remained in Her Majesty in Council must be sought in the Constitution itself. While section 105 of the Constitution gave the Legislature of Southern Rhodesia power to amend, add to or repeal any section of the Constitution, other than those mentioned in section 111, section 111 reserved to Her Majesty the power to amend, add to or revoke

sections 1, 2, 3, 5, 6, 29, 32, 42, 49 and 111 itself, provided that that power was not to be exercised so as to include in section 111 any section of the Constitution other than those already included. The limit thus placed on Her Majesty's power by section 111 was the basis of Beadle C.J.'s finding that Southern Rhodesia must, for practical purposes, be regarded as an independent state. The sections, with which the Southern Rhodesian Legislature was precluded from dealing, concerned, inter alia, the office of Governor, his powers and duties (sections 1, 2, 3 and 5), the constitution of the Legislature, consisting of Her Majesty and the Legislative Assembly (section 6), the assent to bills by Her Majesty or the Governor on Her behalf (section 29), the power to disallow bills (section 32), the vesting of executive authority in Her Majesty (section 42 and the Prerogative of mercy (section 49).

The Governor, who holds office during Her Majesty's pleasure, on the advice of the Governor's Council, appoints the Prime Minister (see section 43 (1)), and, on the Prime Minister's advice, the other Ministers. The persons so appointed likewise hold office during Her Majesty's pleasure: see section 43 (2). Her Majesty was therefore entitled to dismiss them on November 11, 1965.

The discretion to dismiss rests in Her Majesty. The Governor merely notifies those concerned that Her Majesty's pleasure has ceased. It cannot be that, when Ministers are dismissed, the Governor acts on the advice of the very people who are to be dismissed. Under section 45 (2) in cases where the Governor is required to act on his own discretion or on the advice of any specified person or authority, a court may not inquire on whose advice he acted or whether any advice was tendered. When exercising the Royal Prerogative of mercy, in Her Majesty's name and on Her behalf, the Governor normally acts on the advice of the Governor's Council.

Sections 50 to 56 of the Constitution, as amended by the Constitution Amendment Act (No. 13 of 1964), deal with the establishment of the High Court of Rhodesia, the law to be administered, and appeals to the Privy Council. Section 54 (3) provides for the judges to take an oath of allegiance and a judicial oath. Subject to certain provisions as to customary law the law to be administered was to be the law in force in the Colony of the Cape of Good Hope on June 10, 1891, as modified by subsequent legislation having in Southern Rhodesia "the force of law." By virtue of sections 56, E to G, the appellate jurisdiction of the Privy Council was preserved; section 71 (5) gave to aggrieved

persons the right to appeal in cases of contravention of sections 57 to 68, which contained the "Declaration of Rights." The rights protected in those sections were not new rights; they are the fundamental rights to life, liberty and the enjoyment of property, etc. The object of including them in the Constitution was to "entrench" them so that they could not legally be removed and so as to provide a judicial procedure by which an individual might appeal to the Privy Council. By section 58 (1) no person shall be deprived of his personal liberty save as may be authorised by law. Section 69 provides that laws for dealing with emergencies were not to be treated as inconsistent, inter alia, with section 58. The detention of the appellant's husband could therefore only be justified if it were necessary during a period of public emergency as defined in section 72 (2). In the circumstances, therefore, the only period for which his detention was lawful was for three months after the lawful declaration of emergency of November 5, 1965. Under section 71 (5) any person aggrieved by any determination of the High Court may appeal to Her Majesty in Council, and thus the rights protected in the Declaration of Rights are given this further protection

Chapter IX of the Constitution, containing sections 105 to 111, is extremely important since it deals with amendments to the Constitution. Clearly there are no concurrent powers of amendment; the sections which Her Majesty may amend or revoke may not be touched by the Government of Rhodesia at all under section 107. "Declaration of Rights and the right of appeal to the Privy Council" are included in the specially "entrenched provisions." By virtue of sections 107 (2) and 108, any amendment of a specially entrenched provision requires the concurrence of a majority of all the four principal racial groups in Southern Rhodesia, in a referendum, and every African citizen over 21 is entitled to vote in such a referendum, notwithstanding that he cannot ordinarily vote. An alternative method of amendment is by sections 107 (2) (b) and 109, but this requires a majority of two-thirds in the Legislative Assembly and the approval of Her Majesty, on a special address being presented to the Governor praying him to submit a bill for Her Majesty's assent. This therefore requires the consent of the United Kingdom Parliament.

Summarizing the position, it is clear that extensive legislative powers are given to the Legislature, including the power to pass laws with extra-territorial jurisdiction; but there are extremely important limits to those powers. In particular there is no power to remove

the Governor or to withdraw the executive power in the state from Her Majesty. Furthermore, although under the Constitution the powers of Her Majesty in Council to legislate are limited, the powers of the United Kingdom Parliament to legislate have not been cut down. The Statute of Westminster, 1931, does not apply. The Southern Rhodesia Constitution Order of 1965 has modified and amended the 1961 Constitution, but it has not destroyed it. The effect of the Order in Council of 1965 was to do away with the Governor's Council and the powers of the Legislative Assembly, but it leaves a substantial part of the 1961 Constitution intact.

The position of the judiciary remains untouched, as does the Declaration of Rights and the right of appeal to the Privy Council. Against this constitutional background, the illegality of the Unilateral Declaration of Independence (U.D.I.) is beyond dispute. Nor was it disputed in the courts below. Those who organised it were in any event clearly guilty of offences against section 2 of the Preservation of Constitutional Government Act, 1963 (No. 14 of 1963).

When the Governor communicated to the Ministers the withdrawal of Her Majesty's pleasure his action was not a "dismissal" but merely the communication of an event which operated automatically, cf. Adegbenro v. Akintola.³ The court may not enquire into the advice upon which the Governor acted. The Ministers of the illegal régime do not claim to be Ministers under the 1961 Constitution, although there is no evidence of any formal resignation on their part. The 1965 Constitution, introduced by the illegal régime, was of no legal force whatsoever. It attempted to endow Her Majesty with the position of "Queen of Rhodesia" and to establish, as her representative, "an Officer Administering the Government in and over Rhodesia." It also purported to establish an oath of loyalty to the Queen as "Queen of Rhodesia" and a similar judicial oath, which new judges would be required to take before sitting as judges. In fact the 1965 Constitution followed closely the outlines of the 1961 Constitution, but it made no provision for any appeal to the Privy Council. Under section 128 the High Court was deemed to be properly constituted and the existing judges were permitted to continue to sit, but they could be asked to take the oaths mentioned above. Clearly, however, both the courts below regarded themselves as still sitting under the 1961 Constitution.

No legislative process is being carried on otherwise than by

3 [1963] A.C. 614, 628; [1963] 3 W.L.R. 63; [1963] 3 All E.R. 544, P.C.

the rebel Parliament. The executive powers, in the physical sense, are being exercised by the rebel Ministers, but the High Court and the judges (with one exception) continue to recognise the 1961 Constitution. The Governor continues to occupy Government House and asserts the rights of the legitimate Government. Her Majesty and the Government of the United Kingdom have not relinquished Sovereignty and continue to be responsible for and have jurisdiction over the Colony.

No foreign state has given recognition, either de facto or de jure, to the illegal régime. It is important to note that the illegal régime submitted to the jurisdiction of the High Court as originally constituted, and did not claim that the court was sitting under the 1965 Constitution. However, Beadle C.J. considered that he was sitting as a member of a de facto court, neither under the 1961 Constitution, nor under the 1965 Constitution.

It is without precedent for rebels against Her Majesty to submit themselves to Her Majesty's courts, and to allow the legality and effectiveness of their rebellion to be judged by those courts. Of the seven judges in the courts below, only Macdonald J.A. stated that he was exercising his powers under the 1965 Constitution.

The relations between the Sovereign and a Colony are governed by English law, particularly in regard to the Royal Prerogative. Macdonald J.A. held that English law was applicable, but he regarded the Statute of Treason, 1495, as meaning that he owed allegiance to Mr. Dupont, as head of a de facto government for the time being, and not to Her Majesty.

Leave to appeal to the Privy Council.

On March 27, 1968, the Privy Council, when granting leave to appeal, reserved until the hearing the question of the competency of and necessity for any such grant. Clearly the judges of the Appellate Division did not regard their remarks as obiter dicta, but as a constitutionally binding decision⁴: see their judgment, dated March 1, 1968, when they refused to declare that the appellant could bring her appeal to the Privy Council as of right. The determination which was appealed against was that the rebel régime was a de facto government, and as such could lawfully do anything which its predecessor could lawfully have done under the 1961 Constitution, and that accordingly the

4 [1968] (2) S.A. 457.

detention of the appellant's husband was lawful. The determination which the appellant asks should be substituted is that the rebel régime is not a lawful government, that its legislature and administrative acts have no validity; that it cannot proclaim states of emergency or issue regulations thereunder; that it cannot lawfully detain persons without trial, and that the detention of the appellant's husband is unlawful and contravenes his constitutional rights under section 58 of the Constitution.

[LORD MORRIS OF BORTH-Y-GEST. Is the Board concerned solely with the state of affairs as it was in February, 1966, or with the present time?]

The Board's decision should be based on the latest state of facts ascertainable on the record, i.e., as at March, 1968.

While the Appellate Division's decision stands, the appellant cannot approach any other court in Rhodesia, since such courts would be bound by that decision. Although the appellant on her original application was technically successful, until a fresh detention order was made under a regulation which had been held not to be ultra vires she remained an "aggrieved person" within the meaning of section 71 (5) of the 1961 Constitution, and the Privy Council is always prepared to entertain an appeal on matters of substance or of great public importance, particularly where the liberty of the subject is involved: see Australian Consolidated Press Ltd. v. Uren.⁵ The determination of the Appellate Division establishes a precedent for the Rhodesian courts that the rebel régime is a de facto government, and that, as such, it can lawfully do anything that its predecessor could have done under the 1961 Constitution: see Dhlamini and Others v. Carter N.O. and Another N.O. (2).⁶ Shortly after the decision of the Appellate Division an application was made on behalf of certain persons under sentence of death, for a stay of execution on the grounds that to hang persons after two or three years in custody was inhuman, and that, even accepting the judgment in the constitutional case of Madzimbamuto v. Lardner-Burke N.O. and Another N.O., the de facto government should not be accorded or conceded the power to put people to death. That application was refused, the decision in the constitutional case⁷ being applied.

In Chikwakwata v. Bosman N.O.,⁸ Beadle C.J. pointed out that if all that was being asked for was a declaration that an

5 [1969] 1 A.C. 590; [1967] 3 W.L.R. 1338; [1967] 3 All E.R. 523, P.C.

6 [1968] (2) S.A. 445, 449.

7 [1968] (2) S.A. 284.

8 [1965] (4) S.A. 57, 60.

appeal lay of right, then no discretion was vested in the court, and that the object of making a declaration was to spare the Privy Council the necessity of itself making an inquiry. That statement was approved in Lopes v. Valliappa Chettiar.⁹

Since the rule of practice is that pleadings should contain a statement of the relevant facts, and not submissions of law, it was unnecessary specifically to include an allegation that there was a breach of section 58. In any case. however, the point was raised in argument. The basis of Beadle C.J.'s judgment,¹⁰ (of March 1, 1968) was that the substance of the constitutional case¹¹ (the original proceedings) was that the rebel régime had violated the whole of the 1961 Constitution, and not simply an odd section of it, in contravention of the rights of the appellant's husband. But there is no doubt at all that the result would have been the same even if section 58 did not appear in the Constitution, since the Declaration of Rights did not create rights, it merely protected rights already existing at common law. Once unlawful detention is alleged, section 58 must apply, and the right of appeal could not depend on whether or not the section is referred to.

In Chikwakwata v. Bosman N.O.,¹² Beadle C.J. said that there was no doubt that section 71 (5) of the Constitution gave an appeal to the Privy Council as of right, but that the question was whether the determination in that case¹² could be said to be under that section. Here the Appellate Division, by holding that the determination was not a determination of constitutional rights under section 58, erred in not following Chikwakwata's causal.¹²

An alternative basis for the judgment¹³ of Beadle C.J. (with which Quénet J.P., Macdonald J.A. and Jarvis A.J.A. agreed. Field-send A.J.A. expressing no opinions) was that since the rebel régime had declared that it would not obey any order of the Privy Council, it was unnecessary to declare whether it was a proper case to go before the Board without first obtaining leave from the Board, and any decision of the Board granting relief would be a mere "brutum fulmen." Macdonald J.A., since he held that he was sitting under the 1965 Constitution, which does not recognise the right of appeal to the Privy Council, also refused¹³ the declaration sought, but for different reasons.

Both the reasons for Beadle C.J.'s judgments were incorrect.

9 [1968] A.C. 887, 892; [1968] 3 W.L.R. 92; [1968] 2 All E.R. 136, P.C.

10 [1968] (2) S.A. 457.

11 [1968] (2) S.A. 284.

12 [1965] (4) S.A. 57, 58.

13 [1968] (2) S.A. 457.

Even if the Board's decision were to be of academic interest only, the right of appeal could not be lost. E. W. Gillett & Co. Ltd. v. Lumsden¹⁴ lays down that even where there is an appeal as of right it is still for the court a quo to consider whether there is such a right.

The question whether a person is an "aggrieved person" depends on whether the determination has an adverse effect on his or her legal rights. The Board's decision would not be brutum fulmen, since it would dispose of the precedent which otherwise would amount to an estoppel per rem judicatam in any future proceedings between the parties. In Australian Consolidated Press Ltd. v. Uren¹⁵ the appellants succeeded in getting a verdict set aside and a new trial ordered. The High Court of Australia had held that Rookes v. Barnard¹⁶ should not be followed. An application for leave to appeal from so much of the High Court's decision as held that Rookes v. Barnard¹⁶ had been wrongly decided was granted. In that case¹⁷ a new trial was pending, which is not the case here; nevertheless the result would be the same if the appellant were not regarded as an "aggrieved" person, since no new attempt could be made to obtain an order that the appellant's husband be set at liberty. The result of these proceedings cannot therefore be said to be academic.

As to the meaning of "aggrieved," see also Attorney-General of the Gambia v. N'Jie.¹⁸ Lord Denning M.R., after commenting that the definition given by James L.J. in Ex parte Sidebotham, In re Sidebotham¹⁹ was not exhaustive, said that the words "person aggrieved" are of wide import and should not be subjected to a restrictive interpretation.

On the question whether special leave is necessary where the Appellate Division has wrongly refused to make the declaration sought, see Davis v. Chancy²⁰ where Viscount Dunedin, after referring to E. W. Gillett & Co. v. Lumsden²¹ said that while it was the duty of the court a quo to decide whether there was appealable matter, nevertheless if the court a quo did not allow an appeal the unsuccessful appellant could always present a petition for special leave, although, since the granting of special leave was a matter of discretion, he would not necessarily be successful.

14 [1905] A.C. 601, P.C.

15 ante, p. 590.

16 [1964] A.C. 1129; [1964] 2 W.L.R. 269; [1964] 1 All E.R. 367, H.L.(E.).

17 ante, p. 590.

18 [1961] A.C. 617, 634; [1961] 2 W.L.R. 845; [1961] 2 All E.R. 504, P.C.

19 (1880) 14 Ch.D. 458, C.A.

20 [1932] A.C. 106, 111, P.C.

21 [1905] A.C. 601, P.C.

Although this dictum was followed in Lopes v. Valliappa Cheshire,²² it is too widely stated where there is a statutory right of appeal. Notwithstanding, Davis v. Chancy,²³ if the Board is satisfied that the court below is wrong, it should be as a matter of right and not of discretion that an appeal is granted. If the Board should hold that the Appellate Division was wrong on that point it should grant leave irrespective of the prospects of success. Finally in Rahimbhoy Hibibhoy v. Turner,²⁴ Lord Hobhouse said that, though not an appeal, if the court found that a certificate had been wrongly refused they could advise Her Majesty to admit the appeal. If a statute gives a person a right of appeal, that right cannot be taken away because the present illegal régime says that special leave is necessary. [Reference was also made to Attorney-General v. Sillem and Others,²⁵ and Annapurnabai v. Repro.²⁶]

J. G. Le Quesne as amicus curiae. The matter is one of discretion for the Board, no more need be said.

[The Bar was then cleared for their Lordships to consider the matter.]

[Lord Reid. We are satisfied that the appellant has a right of appeal which cannot be taken away.]

Sydney Kentridge S.C. Does your Lordship mean that it is therefore unnecessary to deal with the effectiveness of any order which the Board may make?

[Lord Reid. Your client is here as a matter of right. That right cannot be taken away whether or not anything we may say is unenforceable.]

General Submissions.

Every imprisonment save under judicial warrant is Prima facie unlawful and must be justified by the imprisoning authority: Principal Immigration Officer v. Narayansamy²⁷ and Ganyile v. Minister of Justice.²⁸ Both in English law and in Roman-Dutch law every person arrested is entitled to sue out a writ of habeas corpus asking the court for his release, and the court is bound to grant it unless there is some lawful cause for his detention.

If deprivation of liberty cannot be justified under sections 58 (2) and 69 it cannot be justified at all.

The court can give recognition in effect only to (1) statutes having legal effect in Southern Rhodesia, i.e., the 1961 Constitution and statutes duly enacted thereunder or under previous legal

22 [1968] A.C. 887.

23 [1932] A.C. 106, P.C.

24 (1890) 18 L.R.Ind.App. 6.

25 (1864) 10 H.L.Cas 704.

26 (1924) 51 L.R.Ind.App. 319.

27 [1916] T.P.D. 274 (S.A.).

28 [1962] (1) S.A. 647.

Constitutions of the Colony or by or under the authority of the Parliament of the United Kingdom, and (2) subject to any such statutes having legal effect in Southern Rhodesia, rules of law which were part of the law in force in the Cape of Good Hope on June 10, 1891. No attempt has been made to justify the detention without trial of the appellant's husband under any measure which is a law within the meaning of section 56 D of the 1961 Constitution, and its illegality is therefore incontestable.

The courts, whose judges are bound by their judicial oaths and their oaths of allegiance to Her Majesty ought not to recognise or enforce any measure contrary either to the 1961 Constitution or to any United Kingdom statute which extends to Southern Rhodesia. Nor should they recognise an illegal régime in Her Majesty's own territories as a de facto government. The judicial oath and the oath of allegiance continue to bind the judges notwithstanding that they are living under the physical power of the illegal régime. The majority of the judges, all but Field-send A.J.A., did not attempt to justify the detention by reference to the 1961 Constitution, and were compelled to go outside it to seek a cloak of legality for the power being exercised by the illegal régime. But neither law nor logic permits Her Majesty's judges, appointed under the 1961 Constitution, to find rules of law outside that Constitution. Beadle C.J., Quénet J.P., and Macdonald J.A. all base their conclusions on the view that the 1961 Constitution has ceased to exist because its legislative and executive machinery is not in actual operation. But even if that machinery has ceased to function it does not follow that Her Majesty's authority over the territory has ceased, or that the judges are no longer Her Majesty's judges. It is still the judges' duty to recognise the laws of the Sovereign Legislature, i.e., the United Kingdom Parliament.

The distinction between the breakdown of a constitution and the disappearance of the ultimate Sovereign or other authority was made clear in Sabally and N'Jie v. H.M. Attorney-General.²⁹ There, Lord Denning M.R. held that, where the Constitution set up by the Crown for the Gambia had ceased to function, the Crown must be able to resolve the impasse, and legislate by Order in Council with retrospective effect. The court was bound to recognise the continued Sovereignty of the United Kingdom.

Beadle C.J. and Macdonald J.A. simply took the view that the Constitution was no longer working, and therefore whether it had

29 [1965] 1 Q.B. 273; [1964] 3 W.L.R. 732; [1964] 3 All E.R. 377, C.A.

broken down or was revoked does not touch the broader question of the Sovereignty of the United Kingdom. There are passages in the judgments which express the view that, even before U.D.I., legislation of the United Kingdom Parliament had ceased to be effective in Southern Rhodesia by virtue of a convention, that Parliament would not legislate on matters within the competence of the Legislative Assembly, except with the agreement of the Government of Southern Rhodesia. But that convention can have no application to the events of U.D.I. because the convention related to matters within the competence of the Legislative Assembly, which has ceased to exist, and the Southern Rhodesia Act of 1965, which suspended the Legislature, would not have been within the competence of the Legislative Assembly. It presupposes the continuance of lawful government, and, in order for it still to apply, it would be necessary to read into it such words as "even if the Colony goes into rebellion," a proposition which only needs to be stated to be shown to be ridiculous. In any event a convention cannot override a statute. The very existence of the convention implies that there is a right to legislate otherwise the convention would be unnecessary.

Beadle C.J. failed to advert to the powers of the United Kingdom Parliament to legislate which were not excluded. Ndlwana v. Hofmeyr N.O.,³⁰ and British Coal Corporation v. The King,³¹ upon which Beadle C.J. relied, were both decided after the Statute of Westminster, 1931, and neither of them applies where the Statute does not take effect. They decided that once the ties binding a territory to the United Kingdom have been cut, that situation cannot be reversed by the United Kingdom Parliament. A sufficient answer to the line of argument adopted by Beadle C.J. would seem to be, that if his argument were correct, there would have been no need for U.D.I.

In re Southern Rhodesia³² shows that Rhodesia was conquered by the forces of the British South African Co., and, by well settled constitutional practice, that conquest was on behalf of Her Majesty. There was, however, no formal annexation of the territory until 1923. The effect of such an annexation is clear; see Sobhuza II v. Miller³³ referred to in Nyali Ltd. v. Attorney-General, ³⁴ where the same approach is adopted. The annexation

30 [1937] A.D. 229 (S.Afr.).

31 [1935] A.C. 500, P.C.

32 [1919] A.C. 211.

33 [1926] A.C. 518, P.C.

34 [1956] 1 Q.B. 1; [1955] 2 W.L.R. 649; [1955] 1 All E.R. 646; C.A.; affirmed [1957] A.C. 253; [1956] 3 W.L.R. 341; [1956] 2 All E.R. 689, H.L.

of Southern Rhodesia as a Colony is a starting point behind which the judges cannot go. The court will not examine the treaty or grant under which the Crown acquired jurisdiction. The only cases on which Beadle C.J. appears to rely are Campbell v. Hall³⁵ and Sammut v. Strickland,³⁶ but those cases do not in fact support his argument. A grant of representative institutions once made, without reserving a power of concurrent legislation, precludes the exercise of the Royal Prerogative so long as the legislative institutions continue to exist. The power of Parliament, as distinct from that of Her Majesty, to legislate for a Colony is beyond question. In Campbell v. Hall³⁷ Lord Mansfield was dealing with the limited powers of legislation by Order in Council under the Royal Prerogative and he fully accepted that Great Britain could legislate as it chose for the Colony. The same contrast, between the Prerogative power and the power of Parliament, is seen in In re Colenso, the Lord Bishop of Natal,³⁸ and in Sammut v. Strickland.³⁹

In regard to Rhodesia, the right of the United Kingdom Parliament to revoke the Constitution and grant a new one was never questioned until the judgment in the court below. The British Parliament is a Sovereign body entitled to legislate for the whole empire: Rex v. McChlery⁴⁰ and Rex v. Christian,⁴¹ per De Villiers J.A.⁴² Beadle C.J. accepted that the constitutional position of Southern Rhodesia was not significantly different from that of a Dominion in, say, 1918, and it has never been doubted that before the Statute of Westminster, 1931, the United Kingdom Parliament had power to legislate for the Dominions, the Statute being necessary to sever the tie of Sovereignty. The judges of the Appellate Division must, therefore, as Her Majesty's judges, recognise the binding force of the Southern Rhodesia Act, 1965, and the Order in Council made thereunder.

The question of the promulgation of statutes under Roman-Dutch law was raised by the Rhodesian judges, who held that United Kingdom statutes are not valid unless promulgated in Rhodesia. That contention is based on the provision of the Constitution which adopts the law in force on the Cape of Good Hope on June 10, 1891, i.e., Roman-Dutch Law.

35 (1774) 1 Cowper 204.

36 [1938] A.C. 678; [1938] 3 All E.R 693, P.C.

37 1 Cowper 204.

38 (1864) 3 Moo.P.C.N.S. 115.

39 [1938] A.C. 678.

40 [1912] A.D. 196 (S.Afr.).

41 [1924] A.D. 101.

42 Ibid. 116.

Roman-Dutch law of promulgation.

In Abeyawardene v. West⁴³ the Privy Council accepted, as a correct approach in considering the authority of the early Dutch Jurists, a passage from Professor Lee's Introduction to Roman-Dutch Law, 4th ed. (1946), p. 15; 5th ed. (1953) p. 14. The works of those writers have a weight comparable to the decisions of the courts, or of the limited number of books of authority" in English law. It is conceded that they drew liberally on all types of Roman and civilian writers, and not only those in Holland. Roman-Dutch law is a system of positive law, and is not merely a form of undefined equity: see Grotius, Introduction to the Jurisprudence of Holland (as translated by Professor Lee (1926)) II, 5-14, and also Lazarus and Jackson v. Wessels⁴⁴ per Innes C.J.⁴⁵ and Weinerlein v. Goch Buildings Ltd.,⁴⁶ which show that the principles of equity are only applicable in so far as not inconsistent with those of Roman-Dutch law. A Rhodesian court is, therefore, no more at large than is an English court. It cannot do justice in the abstract. There is no rule of Roman-Dutch law which permits a court to override a statute. The general rule is most clearly set out in Rex v. Harrison and Dryburgh.⁴⁷ The rule of Roman-Dutch law which requires promulgation of a statute before it could become effective does not apply to United Kingdom statutes or Orders in Council. If one starts with the proposition that "Parliament has full power to legislate for any colony," that must mean in the Usual manner, which in England does not involve promulgation. Roman-Dutch law only became operative in Rhodesia by virtue of the 1961 Constitution, and its adoption cannot have been intended to curtail the powers of Parliament. In Union Government (Minister of Lanai v. Estate Whittaker⁴⁸ it is clear that though Roman-Dutch law was adopted to regulate the affairs of subjects in Natal inter se, the constitutional position of the Crown in regard to matters of government was unaffected. The Royal Prerogative remains effective, except so far as it may have been modified or abandoned: see Union Government v. Tonkin,⁴⁹ per Innes C.J.⁵⁰ and Sachs v. Dörges N.O.,⁵¹ per Centlivres J.A.⁵²

43 [1957] A.C. 176; [1957] 2 W.L.R. 281, P.C.

44 [1903] T.S. 499.

45 Ibid. 509.

46 [1925] A.D. 282 (S.Afr.).

47 [1922] A.D. 320, 330 et seq. (S.Afr.).

48 [1916] A.D. 194, 203 (S.Afr.).

49 [1918] A.D. 533 (S.Afr.).

50 Ibid. 539.

51 [1950] (2) S.A. 265.

52 Ibid. 288.

Even if one were to assume that it was the intention of the 1961 Constitution that a statute should only come into force on promulgation, that principle would yield to a contrary intention by Parliament, and Parliament must have intended the Southern Rhodesia Act, 1965, to have immediate operation; its effectiveness cannot have been meant to be dependent on the ability to have it promulgated. Promulgation is achieved, nowadays, by publication in a printed form. The customary method of promulgation is in the Gazette, and this has now been given a statutory basis: see the Interpretation Act, 1962 [No. 25 of 1962], ss. 18 and 30 (3) and section 116 of the 1961 Constitution itself. Nothing in the 1961 Constitution can be construed as intending that the constitutional relationship between the Sovereign and the Colony should be governed by Roman-Dutch law, cf. Sammut v. Strickland.⁵³

In In re Southern Rhodesia⁵⁴ it is stated that it is for the Sovereign to decide whether to allow local law to continue or to change it. The true nature of the rule as to promulgation is one of interpretation of the Legislature's intention, as is explained in Rex v. Offen.⁵⁵ In that case, in considering whether promulgation in South West Africa was necessary to give validity to a statute of the South African Parliament passed under its powers to legislate for South West Africa, Van den Heever J. said that it was a constitutional question which could not be affected by a Roman-Dutch rule of interpretation. This opinion, coming from a most disinguished exponent of Roman-Dutch law, who was jealous of any introduction of English law, must be of great weight.

It is clear that in modern Roman-Dutch law promulgation is a mere formality. There is no rule that it must be brought to everyone's attention, or that it must be in published form: see also Rex v. Offen⁵⁶ per Wessels C.J.⁵⁷ That case shows that even if the rule of promulgation were binding, since a United Kingdom statute has doddered Southern Rhodesia to be part of Her Majesty's Dominions, all that would be necessary would be promulgation in the United Kingdom and this is achieved by publication by the Stationery Office.

Promulgation is sufficiently achieved by publication in the capital or the country having the legislative power: see Reg. v. Jizwa.⁵⁸ In any case the terms of the Southern Rhodesia Act, 1965, were well known to the court below.

53 [1938] A.C. 678, P.C.

54 [1919] A.C. 211.

55 [1934] S.W A. 73.

56 [1935] A.D. 4 (S.Afr.).

57 Ibid. 7.

58 (1894) S.C. 387 (S.Afr.).

The question of promulgation is important because the Southern Rhodesia Act, 1965, and the Order in Council made thereunder did not fail to become law although not promulgated in Rhodesia. Beadle C.J. adopted a statement by Grotius in the Introduction to Dutch Jurisprudence, translated by Maasdorp, 3rd ed. (1903), p. 6, that in the absence of any written law judges must follow reason to the best of their knowledge and discretion.

The judgments in the Appellate Division.

Beadle C.J. attempted to follow a complicated path of legal necessity which led him to the conclusion that it was open to him, as a judge, to decide which was the true Constitution, and whether or not to recognise the illegal régime as either the de facto or de jure government. He regarded the situation existing in Southern Rhodesia as wholly unparalleled in legal history, and the court as sitting as a de facto court. Pointing to the discovery of the occupy in Central Africa in 1900, when zoologists believed that, even if they did not know of the existence of every large animal, at least they knew of the existence of every possible genus, Beadle C.J. compared his task to that of an explorer. But whereas the occupy was discovered by the zoologists, Beadle C.J.'s "okapi of jurisprudence" was invented. The certificate of H.M. Secretary of State, to the effect that Her Majesty's Government do not recognise the illegal régime either de jure or de facto, he regarded merely as evidence, upon which, with other evidence, the court, sitting as a Rhodesian court "in mediis rebus" and not as an English court, could decide whether or not to recognise the régime. But the Secretary of State's certificate is decisive not only of the "status" of the illegal régime, but also as to the validity of its administrative and legislative acts. The Tinoco Arbitration⁵⁹ and The Arantzazu Mendi⁶⁰ to which Beadle C.J. referred, relate purely to international law.

Beadle C.J. further sought to rely on dicta by Lord Reid and by Lord Wilberforce, in Carl Zeiss Stiftung v. Rayner & Keeler Ltd. (No. 2)⁶¹ to the effect that recognition of a law does not entail recognition of the law-maker as a government with Sovereign power, in support of his contention that, in the circumstances existing in Rhodesia, it was permissible to recognise the legislative and administrative acts of the régime. But no English

59 (1923) Herbert W. Briggs The Law of Nations, 2nd ed. (1953), p. 197; 18 A.J.I.L. 147.

60 [1939] A.C. 256; [1939] 1 All E.R 719, H.L.(E.).

61 [1967] 1 A.C. 853; [1966] 3 W.L.R. 125; [1966] 2 All E.R. 536, H.L.(E.) at pp. 907 and 961 respectively.

court may recognise the laws of an unrecognised body in the face of, and contrary to, the express terms of a United Kingdom statute. He then attempted to rely upon the principles upon which Her Majesty's Government acts in deciding whether or not to recognise governments as de facto or de jure governments, but such principles of international law are not applicable where or.e is dealing with a rebellion within the Sovereign's own territory. The authorities upon which he sought to rely, namely Kelsen, Lord Lloyd, Bryce and Salmond, may afford an accurate jurisprudential analysis of a change in the basic laws of a country but they are not authorities upon which an English court should act.

The passage from Salmond's Jurisprudence, 11th ed. (1957), p. 101, dealing with the Bill of Rights and the accession of William III, which was cited by Beadle C.J., merely means that every legal system must have a starting point; it does not mean that it is the duty of a judge to consider the legitimacy of the Sovereign power under which he was appointed. By accepting commissions from William III and Mary, the judges must, perforce, have recognised their legitimacy; they could not legitimately have conducted an enquiry as to whether or not William III and Mary were de facto or de jure Sovereigns. The cases of Uganda v. Commissioner of Prisons, Ex parte Matovu,⁶² and The State v. Dosso⁶³ are explicable on the same basis. It is clear that in both cases the judges started by accepting the effectiveness and success of the revolution, i.e., they clearly accepted office under the new Constitution and therefore the consideration which they devoted to its validity or otherwise was an arid exercise in each case.

The Appellate Division accepted that they were still sitting as Her Majesty's judges, and therefore those cases have little application to the present case. It does not fall within the purview of a domestic tribunal to enquire into the legality or otherwise of its own constitution. Whenever there was a change of monarch in England, all the judges accepted fresh commissions from the new Sovereign; there could therefore be no occasion for such an enquiry. Where there is a written constitution the judges derive their authority from the constitution, they do not sit in vacuo, nor do they derive their authority from "Divine Right." There are therefore only two choices open to them, they can continue to recognise the old Constitution or they can resign and accept office

62 [1966] E.A. 514.

63 [1958] 2 P.S.C.R. 180; (1958) P.L.D. I.S.C.(Pak.) 533.

under the new one. Sobhuza ll v. Millar⁶⁴ and Nyali Ltd. v. Attorney-General⁶⁵ demonstrate that an act of annexation over territory is an Act of State behind which a judge cannot go. He may not inquire whether the Queen had power to annex. The High Court of Rhodesia must therefore accept that the only reason for its existence is the Constitution granted by the Queen, and it cannot consider whether or not the rebel Government has become a lawful one. A judge cannot depart from the laws of his lawful Sovereign unless he ceases to be one of Her Majesty's judges and joins the revolution. So long as the courts continue to sit, it cannot be said that the Sovereign has lost power; if the judges decide that the Sovereign has been displaced, their duty would be to say that they can no longer exercise their functions, they should not apply the laws of the usurper. If it were open for judges to decide, from day to day, who was exercising the Sovereign power, all objectivity would go. Beadle C.J. held that the illegal régime was in effective control, but though it seemed likely to continue in control he could not say that it was yet firmly established. Quénet J.P. on the other hand held that it was firmly established. Such a divergence of opinion illustrates the impossibility of this being the true test to be applied. As Beadle C.J. points out, one of the factors in deciding whether the present régime is in effective control is the attitude of the courts. But the attitude of the courts may also affect the likelihood of its remaining in effective control, and therefore what the court is really doing, on the basis of Beadle C.J.'s judgment, is to consider whether it has backed the "right horse." That cannot be the proper test of what is "the law." What was argued below was that there is only one law which the judge can apply, if he sits as one of Her Majesty's judges. If he decides to do otherwise it is a personal political decision, not a legal one. The conclusion which he reached that he must decide what the law was "in the light of political realities" was wrong. Beadle C.J. and Jarvis A.J.A. appear to have reached the conclusion that the illegal régime is the de facto Government, but that it cannot govern under the 1965 Constitution which it established but is limited by the 1961 Constitution, which latter Constitution however they regarded as entirely suspended. The court, they held, could only exercise its powers because it was permitted to do so, but it was not necessary to recognise all

64 [1926] A.C. 518, P.C.

65 [1956] 1 Q.B. 1; affirmed [1957] A.C. 253, H.L.(E.).

the laws of the illegal régime. This conclusion is so far removed from legal principles that it is its own refutation.

The answer to that approach is correctly stated by Field-send A.J.A. where he adopts the separation of powers, and holds that unless the judicial as well as the legislative and executive functions of government are usurped, the rebel régime cannot be said to be a fully de facto government: see Hildreth's Heirs v. M'Intire's Devisee.⁶⁶ Field-send A.J.A. says that it is the courts' duty to stand in the way of what might be termed a legitimate attempt to override the Constitution: see grown v. Leyds N.O.⁶⁷ Field-send A.J.A. correctly points out that the court cannot recognise anything inconsistent with the Constitution, to which it owes its existence, and that where there is a separation of powers it is the duty of the judiciary to protect that Constitution: see Luther v. Burden.⁶⁸

[LORD REID. If there is no lawful means of altering the Constitution and if the vast majority are dissatisfied with the existing government, must it be civil war or is there any legal solution for the people?]

It is not a question into which a court can go. In Luther v. Borden⁶⁸ it was a political question solely for the U.S. Congress to decide. Where there is a written constitution the court's powers must be exercised in accordance with that constitution: see Liyanage v. Tote Queen.⁶⁹ It cannot consider whether there has been a successful coup d'état. The court's function is to protect the Constitution: see also The State v. Powell⁷⁰; Brown v. Leyds N.O.⁷¹

Beadle C.J. frequently invokes "political realities." It is difficult to avoid saying that in so doing he departs from the terms of his judicial oath, since he appears to prefer "political realities" to the law. Both the courts below were clearly motivated by the fear of the social and political consequences of applying the law strictly, but whatever the consequences resulting from the nullification of all or many of the measures of the illegal régime may be, and however difficult the position of Her Majesty's judges in Rhodesia, their judicial oaths clearly required them to apply the law strictly, doing "right to all manner of people after

66 1 J. J. Marshall 206 (24 Kentucky Reports) U.S.A.

67 (1897) 4 O.R. 17 (S.Afr.).

68 (1849) 7 Howard 1 (48 U.S.).

69 [1967] 1 A.C. 259; [1966] 2 W.L.R. 682; [1966] 1 All E.R. 650, P.C.

70 (1900) 27 Southern Reporter, Mississippi 927 pp. 931-2.

71 (1897) 4 O.R. 17 (S.Afr.).

the laws and usages of Southern Rhodesia": see Eshugbayi Eleko v. Officer Administering the Government of Nigeria⁷²; Ex parte Mwenya⁷³; In re Willem Kok and Nathaniel Balie⁷⁴; Central African Examiner (PVT) Ltd. v. Howman and Others N.N.O.⁷⁵ and Liyanage v. The Queen.⁷⁶

The State v. Dosso⁷⁷ and Uganda v. Commissioner of Prisons, Ex parte Matovu⁷⁸ are not persuasive as authorities and are irrelevant in the particular situation in Rhodesia.

[LORD REID. What is the right course for a court in a coup d'état?]

In the Pakistan and Uganda situations, there were no conflicting claims to Sovereignty - the coups d'état had been completely successful; the judges therefore had merely a personal choice to make, whether to sit or not. In Southern Rhodesia Her Majesty is still asserting her authority. In Uganda there was throughout a completely independent Sovereign state, whereas in Rhodesia there has been no change of Sovereignty. Luther v. Borden⁷⁹ was clearly distinguished in Uganda v. Commissioner of Prisons, Ex parte Matovu⁸⁰ on the ground that in that case there was a contest between two competing groups as to which should control Rhode Island. The same applies to The State v. Dosso.⁸¹ Neither of these cases supports Beadle C.J.'s view. In The Arantzazu Mendi,⁸² Lord Atkin makes it clear that it is for the Sovereign to decide whom to recognise, and that the State cannot speak with two voices, the judiciary saying one thing and the executive another.

When considering whether a government is a de facto government it would appear that the administration of justice is an important factor in the decision. It would therefore be illogical for the very court which is administering justice to be able to go into the question, as to the existence of a de facto government, since its own decision might be important on the question of the effectiveness of such government. Beadle C.J. wrongly took the view that the certificate of the Secretary of State, while binding upon United Kingdom courts, was not binding on a Rhodesian

72 [1931] A.C. 662, 670, P.C.

73 [1960] 1 Q.B. 241, 308; [1959] 3 W.L.R. 767; [1959] 3 All E.R. 525, C.A. reversing [1959] 3 W.L.R. 509, D.C.

74 (1879) 9 Buchanan 45, 66 (S. Afr.)

75 [1966] (2) S.A. 1 (S.Afr.).

76 [1967] 1 A.C. 259; [1966] 2 W.L.R. 682; [1966] 1 All E.R. 650, P.C.

77 [1958] 2 P.S.C.R. 180.

78 [1966] E.A. 514.

79 7 Howard 1 (48 U.S.).

80 [1966] E.A. 514.

81 [1958] 2 P.S.C.R. 180.

82 [1939] A.C. 256, 264.

court: see Civil Air Transport Incorporated v. Central Air Transport Corporation.⁸³

Beadle C.J. sought to rely upon the doctrine that even if the Sovereign did not recognise a government, that was not conclusive, and he relied on dicta of Lord Reid and Lord Wilberforce in Carl Zeiss Stiftung v. Rayner & Keeler Ltd. (No. 2),⁸⁴ but neither passage can mean that recognition is permissible when it is expressly forbidden by a United Kingdom statute.

There is direct authority against the proposition that a court may recognise a rebel régime: see Ogden v. Folliott,⁸⁵ per Lord Kenyon C.J.,⁸⁶ and Dolder v. Lord Huntingfield,⁸⁷ per Lord Eldon L.C.⁸⁸ See also McNair on The Legal Effects of War, 4th ed. (1966), 403-6 and Barclay v. Russell⁸⁹ The principle there deduced is that an English court, unless directed to do so by the Legislature, cannot give effect to the acts of a government which has taken its rise in a rebellion against Her Majesty and is still in a condition of rebellion at the date of the act in question.

Further support for that proposition is derived from Van Deventer v. Hackle and Mossop,⁹⁰ per Innes C.J.⁹¹ Secretary of State in Council of India v. Kamachee Boye Sahaba⁹²; Lemkuhl v. Kock⁹³ and Olivier v. Wessels.⁹⁴ The decisions of Innes C.J. in the above cases are weighty and convincing.

American cases

The peculiarities of the United States Constitution are such that it is not safe to rely for guidance upon the post-Civil War American cases, when dealing with a British Colony: see The Amalgamated Society of Engineers v. The Adelaide Steamship Co. Ltd.⁹⁵ All parts of the British Empire enjoy a common Sovereignty, but a fundamental difference, accepted by the United States courts, is that each American State had its own Sovereignty. Consequently the difficulties of recognizing an unrecognised state did not arise in the American cases as it must do in the case of a British Colony. The cases clearly lay down that notwithstanding the fact that the governments of the southern states were in

83 [1953] A.C. 70; [1952] 2 All E.R. 733, P.C.

84 [1967] 1 A.C. 853, 907, 954; [1966] 3 W.L.R. 125; [1966] 2 All E.R. 536, H.L.(E.).

85 (1790) 3 Term Rep. (Dumord & East) 726.

86 Ibid. 732.

87 (1805) 11 Ves.Jun. 283.

88 Ibid. 293.

89 (1797) 3 Ves.Jun. 424; 1 Ves.Jun.Supp. 393.

90 [1903] T.S. 401.

91 Ibid. 409.

92 (1859) 13 Moo.P.C.C. 22; 7 Moo.Ind.App. 476, P.C.

93 [1903] T.S. 451.

94 [1904] T.S. 235.

95 (1920) 28 C.L.R. 129, 146.

rebellion and therefore illegal, nevertheless certain of their measures, made for peace, order and good government, had to be recognised and to that extent they are authority for the proposition that recognition of some acts does not entail recognition of all acts. However they do not assist for the following reasons: (i) they were all decided when the Civil War was at an end, and when the public had been living for four years with no lawful government in existence. They are based on the inequity of refusing to recognise transactions which had governed the day-today life of the population in the rebel states and the impossibility of unravelling and nullifying what had been done. (ii) Recognition was granted to support the private rights of individuals and never in favour of the rebel governments themselves. No measure which was in aid of the rebellion or contrary to the Constitution of the United States or which infringed the Sovereignty of the United States was ever recognised. (iii) Recognition was limited to measures of the state governments, and the Supreme Court refused to recognise, in any sense whatever however apparently innocent, the measures of the Confederacy.

The leading case on this subject is Texas v. White,⁹⁶ which shows that while recognition was given to certain acts necessary to peace and good order, the acts in question were those governing private relations between individual citizens, and that those acts which were in furtherance or support of the rebellion or which defeated the just rights of citizens were regarded as invalid and void.

The cases seem to relate only to private individual relationships. The principles were applied only in favour of individual citizens, and not in favour of any measure of the confederacy, whose very existence was contrary to the Constitution.

The principles laid down cannot apply to Rhodesia since Her Majesty's judges in that country cannot recognise any acts of the rebel régime, as the Act of 1965 and the Order in Council specifically inform them; but even if the principles were applied without concession they would not assist here.

In Horn v. Lockhart,⁹⁷ where executors had invested trust funds in Confederate bonds, the investment in such bonds was held absolutely illegal, and not a proper use. It was stated that the executive, judicial and legislative acts of the state governments or their departments so far as they did not impair or tend to

96 (1868) 7 Wallace 700 (76 U.S.).

97 (1873) 17 Wallace 570, 580 (84 U.S.).

impair the supremacy of the national authority or the just rights of citizens under the Constitution were to be treated as valid and binding, crime was to be prosecuted, but the constitutional rights of the citizens were to be preserved. Acts which were "not hostile in their purpose or mode of enforcement to the authority of the National Government" were valid: see also United States v. Insurance Companies⁹⁸ where insurance companies incorporated under the laws of rebel state governments were held validly incorporated. It should be borne in mind that the fighting was over and the principle involved seems to have been to avoid unnecessary hardship on individual citizens and to preserve their vested rights. The declaration of states of emergency, with powers of detention without trial, falls within a different category.

While in a limited sense the states were entitled to deal with threats to peace and good order, it is clear that the Confederate states never had any right to try for treason. Peace and good government refers to ordinary rights including those for the protection of property. It is conceded that it would follow that the police could lawfully have arrested persons for theft.

These cases were all heard after the end of the Civil War, never during it. If people could have come to lawful courts the result might not have been the same. Recognition was sometimes only granted so far as necessary to sustain transactions which had taken place: see per Bradley J. in Thomas v. City of Richmond.⁹⁹

In Keith v. Clark¹⁰⁰ the payment of taxes in Confederate notes was held valid. Bradley J.¹⁰¹ said that the courts ought to regard as valid all those Acts of the state governments which were received and observed as laws for the government of the people in their relations with each other so far as that could be done without recognizing and confirming what was actually done in aid of the rebellion.

Baldy v. Hunter¹⁰² sets out fully the sort of transactions which were recognised, but they were very different from what is sought to be justified here, which is an exercise of Sovereign power. Detention without trial can never be necessary for the preservation of peace and good order, on the mere ipse dixit of a rebel Minister.

If it be suggested that the intention with which a person was acting should be considered, the answer is that that would result

98 (1874) 22 Wallace 99 (89 U.S.).

99 (1870) 12 Wallace 349, 357 (79 U.S.).

100 (1878) 7 Otto 454 (97 U.S.).

101 Ibid. 476.

102 (1898) 64 Davies 388, 400, 401 (171 U.S.).

in chaos. In Baldy v. Hunter¹⁰² a guardian invested his ward's money in Confederate bonds, there was no other way in which he could have invested it, and it was held not wrong; an enquiry into motive would have resulted in chaos.

Another line of cases makes it clear that the Texas v. White¹⁰³ principle can have no application to any measure of the Confederacy whatever its nature. These cases show that the reason for this is to be found in the independent Sovereignty of the seceding states, whereas when it was a question of an unrecognised rebel government the same rule applies as in the English cases, i.e., in the Sovereign's own territory a rival authority cannot be recognised: see United States v. Keehler.¹⁰⁴

It is a fallacy to attempt to equate Southern Rhodesia with a state of the United States whose relationship to Congress is entirely different.

In Hickman v. Jones¹⁰⁵ a prosecution for treason in a Confederate court was held to be a nullity, as also was the court itself. The American cases suggest that the executive, judicial and legislative acts of the Confederacy were a complete nullity: see Sprott v. United States¹⁰⁶ where it was said that the government of the Confederate states had no existence except as a conspiracy. In the individual states on the other hand the existing state organizations merely transferred to a new and different national head. The position in Rhodesia is not a true analogy because in Rhodesia there has been an attempt to set up a new Sovereign authority in Her Majesty's Dominions in rivalry to the lawful Government: see also Williams v. Bruffy¹⁰⁷ and Kenedy Pasture Co. v. State of Texas.¹⁰⁸

So it is clear that the United States courts would not uphold any act contrary to the Constitution of the United States or such as to impair the constitutional rights of a citizen.

The doctrine of necessity cannot be applicable here because: (i) the proclamation which is relied on as justifying the detention without trial of the appellant's husband impairs his constitutional right to liberty; (ii) it constitutes an assumption of powers which are clearly in derogation of lawful Sovereignty; and (iii) the proclamation of a state of emergency, otherwise than in accordance with the terms laid down in sections 69 to 72 of the Constitution. is

102 (1898) 64 Davies 388.

103 (1868) 7 Wallace 700 (74 U.S.).

104 (1869) 9 Wallace 83 (76 U.S.).

105 (1869) 9 Wallace 197 (76 U.S.).

106 (1874) 20 Wallace 459 (87 U.S.).

107 (1877) 6 Otto 176 (96 U.S.).

108 (1921) 231 South Western Reporter 683.

a contravention of the Constitution and is therefore disqualified for that reason also.

The doctrine can only be applied ex post facto and only in the private sector. In America for four years there had been no lawful courts, but in Rhodesia the lawful courts are still sitting. During a rebellion a judgment of the court recognizing the acts of a usurper must necessarily assist the rebels.

By no stretch of the imagination can the proclamation of states of emergency with powers to detain without trial be included in the category of acts necessary for the existence of organised government as necessary to preserve the bonds of society. Lauterpacht's Recognition in International Law, 1st. ed. (1947), p. 146 fails to stress sufficiently the distinction between State and Confederate legislation.

Any possibility of the application of the doctrine of necessity to the present case is ruled out by the Act of 1965 and the Order in Council. Had a similar act been in existence in America during the Civil War, the doctrine could never have been developed. In some future case the question may arise as to the validity of marriages performed in Rhodesia by a registrar appointed by the illegal régime, but whatever might be held in such a case it could afford no support for the validity of the proclamation of a state of emergency.

In the more recent American cases of Sokoloff v. National City Bank,¹⁰⁹ M. Salimoff & Co. v. Standard Oil Co. of New York¹¹⁰ and Upright v. Mercury Business Machines Co. Inc.¹¹¹ it has been held that the non-recognition of the U.S.S.R. and of East Germany did not preclude recognition of certain measures of the governments of those countries. But, as in the Civil War cases, the doctrine applies to private rights. It is an exception to the general rule and is in every case subject to the question of public policy of the United States.

The civilian authorities.

The civilian writers, Grotius, Pufendorf, etc., were greatly relied upon by the respondents, but they cannot be regarded as authorities on the modern constitutional law of Southern Rhodesia. It was said that, where there was no modern law dealing directly with the question, the court was entitled to look at the writings

109 (1924) 239 N.Y. 158; 145 North Eastern Reports 917.

110 (1933) North Eastern Reports 679.

111 (1961) 213 New York Supplement (2nd series) 417.

of the civilians dealing with the jus gentium. That is not so because: (i) the constitutional law of Southern Rhodesia is English law, and there are clear statutes dealing with the question; (ii) the so-called authorities do not form part of Roman-Dutch law; and (iii) they are not even part of international law; they are merely precepts to be followed by private citizens in their attitude to a usurper.

The passage from Grotius, De Jure Belli ac Pacis, Bk. I, Ch. IV, XV, which Lewis and Goldin JJ. in the General Division wrongly regarded as part of the laws of Rhodesia, is wholly irrelevant to the question, whether the judges can recognise the régime's provisions, made contrary to a United Kingdom statute. Roman-Dutch law only became a part of the law of Southern Rhodesia by grant from the Crown, because it happened to be part of the law of the Colony in the Cape of Good Hope in 1891; and a grant of that sort cannot be construed as an abandonment of the Crown's Prerogative, or of the powers of the United Kingdom Parliament: see Rex v. Harrison and Dryburgh¹¹² and Sammut v. Strickland¹¹³ Roman-Dutch law does not deal with the conception of a King in Parliament in the British sense at all. The decisions in South Africa on constitutional law have always been based on English constitutional law: see Sachs v. Dönges N.O.¹¹⁴ where Watermeyer C.J. did refer¹¹⁵ to Voet (1.4.21) and Centlivres J.A. said¹¹⁶ that he would not refer to Roman-dutch law, because the law was clearly stated in Union Government (Minister of Lands) v. Estate Whittaker,¹¹⁷ and Union Government v. Tonkin.¹¹⁸

Harris v. Minister of the Interior,¹¹⁹ a most important case on the constitutional law of South Africa, deals with the power of the South African Parliament, after the passing of the Statute of Westminster, 1931, to pass laws amending or repealing the South Africa Act, 1909, i.e., to pass an Act repugnant to that Act. English constitutional law was applied throughout, reference being made particularly to Moore v. Attorney-General for the Irish Free State.¹²⁰

Similarly in Ex parte Schwietering¹²¹ there was no reference to Roman-Dutch law, but such cases as Charles, Duke of

112 [1922] A.D. 320, 330 (S.Afr.).

113 [1938] A.C. 678; [1938] All E.R. 693, P.C.

114 [1950] (2) S.A. 265, 275.

115 Ibid. 284.

116 Ibid. 288.

117 [1922] A.D. 194 (S.Afr.).

118 [1918] A.D. 533 (S.Afr.).

119 [1952] A.D. 428 (S.Afr.).

120 [1935] A.C. 484, P.C.

121 [1948] (3) S.A. 378 (S.Afr.).

Brunswick v. The King of Hanover,¹²² Ibrahim v. The King¹²³ and Calvin's case¹²⁴ were referred to, and if there had been any relevant Roman-Dutch law, one may be sure that a judge of the caliber of Van den Heever J.A. would have referred to it. [Reference was also made to Van Deventer v. Hancke and Mossop¹²⁵, Secretary of State for India v. Kamachee Boye Sahaba,¹²⁶ Abeyesekera v. Jayatilake¹²⁷ and Campbell v. Hail.¹²⁸]

Liyanage v. The Queen¹²⁹ was a case as to whether the legislature in Ceylon could take over powers reserved to the judiciary under the Constitution, but Roman-Dutch law was not referred to, mainly because Roman-Dutch law did not know of the doctrine of the separation of powers. Indeed, Voet and Grotius, when speaking of a usurper, speak of him as a man who "ad ministers justice," and not merely as the one who wields executive power, Beadle C.J. conceded that as far as possible the issues should be determined by English law but said that where that law was inconclusive the court could follow the civilian and early Dutch authorities. In support he quoted passages in Burmah Oil Co. Ltd. v. Lord Advocate¹³⁰ where Lord Radcliffe referred with approval¹³¹ to Grotius and to Van Bynkershoek and where Lord Upjohn stated that the writings of the civilians were of great persuasive force. Macdonald J.A. held that the question of allegiance was governed by English law, and the writings upon which Beadle C.J. relied are not authorities of Roman-Dutch law. While Grotius was a great authority on Roman-Dutch law, his work De Jure Belli ac Pacis was not itself a work on Roman-dutch law: see Wessels' History of the Roman-Dutch Law, (1908), pp. 271-3 and Lee's Roman-Dutch Law, 5th ed. (1953).

These authorities, therefore, can at most be of persuasive authority: see Burmah Oil Co. Ltd. v. Lord Advocate,¹³² perLord Reid¹³³ and Lord Radcliffe.¹³⁴ The writings themselves make no pretence to be stating the law of any particular country: see Grotius's Prolegomena or Introduction to De Jure Belli ac Pacis, translated (1738) by J. Barbaric, sections I, XIII XXVII, XXVIII, XLI, XLII.

The whole purpose of the passage in Grotius in De Jure Belli

122 (1848) 2 H.L.Cas. 1.

123 [1914] A.C. 599.

124 (1608) 7 Co. Rep. 1 (a).

125 [1903] T.S. 401.

126 (1859) 13 Moo.P.C.C. 22; 7 Moo.Ind.App. 476, P.C.

127 [1932] A.C. 260, P.C.

128 Cowper 204.

129 [1967] 1 A.C. 259.

130 [1965] A.C. 75; [1964] 2 W.L.R. 1231; [1964] 2 All E.R. 348 H.L.(Sc.).

131 [1965] A.C. 75, 128, 129.

132 [1965] A.C. 75.

133 Ibid. 108-9.

134 Ibid. 128.

ac Pacis at Bk. I, Ch. IV, s. XV is really just a statement, or advice, that a private individual should not take the law into his own hands.

The works referred to, or relied upon below, included the following:- Pufendorf, De Jure Naturae et Gentium, Bk. VII, C. VIII, s. X (1744), translated by B. Kennet, D.D., with notes by M. Barbaric, 5th ed. (1749); Suarez, Tractatus De Legibus, Lib. III, Ch. X, s. 9 (1612); Victoria, De Potestate Civili N. 23; Lessius, De Justicia et de Jure, Lib. II, Ch. 29 and Dubitatio, Lib, IX, n. 73; Coccejus ad Grotius, Lib. I, Ch. IV, s. XV (1744).

In so far as Grotius, Suarez, Lessius, Victoria and Pufendorf state that the laws of a usurper are to be obeyed, it is on an implied mandate from the Sovereign, who would, it was said, probably prefer that they should be obeyed, rather than that the state should be exposed to chaos and anarchy. Lewis J. in the General Division took the view that the Governor's message to the people of Rhodesia was just such a mandate. The Governor's message, however, is incapable of bearing that interpretation.

The construction of the Governor's message

What the Governor's message called upon the judiciary to do was to perform its normal duty, i.e., to administer the law of the land and no other law. It cannot be interpreted as an instruction to give effect to measures taken under the illegal 1965 Constitution.

[LORD PEARSON. But if the law is changed what can the judge do? The old law has gone; how then are they to maintain law and order?]

Suppose a man is charged with theft under a new statute, the court's duty would be to treat the new statute as not being law.

[LORD REID. if the indictment specified the new Act, which the court says is not law, does the man go free?]

It is not for the court to give in; if the Attorney-General wishes to secure a conviction he must proceed under the old Act. If it be said that if people are to perform their normal tasks they must take orders from their superiors, since otherwise the law could not be enforced at all, the answer is that the orders to be obeyed must be lawful ones. The court's duty is to say what is law and what is not. The Governor's message cannot be read as a request to recognise proclamations of emergency by the illegal Ministers, because it would be in contravention of the Order in Council of 1965. If the courts had refused to accept prosecutions under new statutes, no taxes could have been

collected, and if they had refused at an early stage to enforce anything but the existing law, the illegal régime would have been forced either to return to legality or to have set up its own judiciary and courts.

The judges' duty is to administer the law, not to keep order. Even if the Governor were to be regarded as the equivalent of a Secretary of State exercising executive power on behalf of Her Majesty, he could not give directions contrary to the terms of the Order in Council. The majority of administrative acts by the régime would not raise constitutional issues. Doubtless in the many instances where some form of ministerial direction is required, such as under the Child Protection Acts, acts done without such direction would be unlawful.

[LORD REID. How can a civil servant carry on his normal tasks, if there is no one in the country who is in fact entitled to give the required ministerial direction?]

Notwithstanding the many instances where statutory provisions require such ministerial direction to be given, there is still a wide field of administrative or governmental action which requires no such direction. Although it might be difficult for a civil servant to carry out his normal tasks, the courts should have had no difficulty in guiding them as to what was lawful and what was not. The courts should not have shrunk from a strict application of the law, and possibly if they had not shrunk from doing so, the illegal régime would have been forced to alter its course.

The Order in Council suspending all further executive action in Rhodesia was similar to an Act of State, which the courts cannot question: see Secretary of State v. Sadar Rustam Khan,¹³⁵ per Lord Justice Atkin¹³⁶, Van Deventer v. Hancke and Mossop,¹³⁷ per Innes C.J,¹³⁸ who quotes Lord Kingsdown in Secretary of State in Council of India v. Kamachee Boye Sahaba.¹³⁹ The question whether the Sovereign's actions were politic or impolitic, just or unjust may not be enquired into.

It is for the Sovereign to take what executive action seems necessary and if, for two and a half years, Her Majesty decides to take no action, that is a matter within Her Majesty's discretion. The Governor's message makes clear that the Ministers are no longer recognised, and calls upon the judiciary, the armed services, the police and the public service to carry on with their normal

135 [1941] A.C. 356; [1941] 2 All E.R. 606; [1941] 68 I.A. 109; [1941] A.I.R. 64, P.C.

136 [1941] A.C. 356, 369.

137 [1903] T.S. 401.

138 Ibid.

139 13 Moo.P.C.C. 22.

tasks. The normal task of the judiciary is to administer the law not to stretch it. The police no doubt have a very difficult path to tread in order to do their work without recognizing illegal authorities, and if they are guilty of lapses that is excusable, but for the judiciary there is no excuse. Although the wording of the Governor's message may be open to criticism, the courts could not have been misled. If it be said that one cannot place the judiciary in a separate compartment, that the police, the armed services, and the civil servants always act subject to ministerial control, and that they cannot perform their normal tasks without taking orders, the answer is that the Governor's message cannot be read as meaning that the judiciary also were to assist by enforcing such laws as the rebel government might pass, since that would be in plain conflict with the terms of the Order in Council.

Under English law the executive has no power to direct the judiciary what law is to be applied. If the Governor's message could be construed as a call to enforce the rebel government's laws, it was the courts' duty to ignore it. The judiciary are the watchdogs of the Constitution. They are expected to know the law and to apply it. They cannot rely upon a possible ambiguity in the Governor's message.

The doctrine of necessity.

The doctrine was referred to in both courts below. The doctrine is well recognised in Roman-Dutch law and is often applied. The statement by Kotzé J. in White & Tucker v. Rudolph¹⁴⁰ which was cited by Fieldsend A.J.A. is adopted as an accurate statement of the law. It is only the latter's application of the principle to the facts of this case that is contested.

The doctrine appears to be the same in English law also, as is shown by the judgments in Burmah Oil Co. Ltd. v. Lord Advocate,¹⁴¹ perLord Reid,¹⁴² per Lord Pearce¹⁴³ and per Lord Radcliffe, dissenting.¹⁴⁴ Necessity entitles the Sovereign in time of war to exercise power equally over the person or the property of a subject: see Krohn v. The Minister of Defence of the Union of South Africa,¹⁴⁵ per De Villiers J.A.¹⁴⁶ where he cites the judgment of Solomon J. in Reg. v. Bekker: Reg. v. Naudé.¹⁴⁷ The passage there cited is the classical view of "necessity" in law,

140 (1879) Kotzé 115, 124 (S.Afr.).

141 [1965] A.C. 75.

142 Ibid. 75, 106.

143 Ibid. 75, 140, 150-1, 158, 159.

144 Ibid. 75, 115.

145 [1915] A.D. 191 (S.Afr.).

146 Ibid. 210.

147 [1900] 17 S.C. 340, 355 (S.Afr.).

namely that it is a doctrine put in force when the maxim "salus reipublicae extrema lex" applies. The doctrine therefore is used to protect the Constitution of the Sovereign state, not to assist those who seek to destroy it. Here, the respondents would be excluded from its benefit. Here the Constitution itself provides for the proclamation of states of emergency in times of war or other periods of emergency, as defined in section 72 (2). So it is questionable whether the doctrine of necessity can be invoked when the Constitution itself makes provision for periods of emergency.

The high-water mark of the doctrine is Attorney-General for the Republic v. Mustafa Ibrahim of Charnel In that case, owing to the immutable nature of the constitution of Cyprus and the political secession of the Turkish members of the judiciary and of the legislature, neither the courts nor Parliament had been able to function. The Greek members of Parliament took upon themselves to pass a "law" setting up a new Supreme Court with no racial quorum, such as had been provided for by the Constitution. The new court took office and was staffed by Greek judges only. It was contended that the "law," being unconstitutional, was a nullity, but all three judges held that the "law" should be read into the Constitution, by applying the doctrine of necessity, and that the new court was duly constituted.

Fieldsend A.J.A. attempted to state the doctrine, as applied in that case,¹⁴⁸ with its stringent limitations, as follows: (a) the necessity may be invoked only by the lawful organs of government; (b) the onus is on the authority invoking the doctrine to prove an imperative and unavoidable necessity to act outside the ordinary law; (c) the measure taken must be shown to be proportionate to the necessity and no more; and (d) the measure taken must be of a temporary character.

That statement of the rule is adopted. No act by the illegal régime can satisfy those requirements. Not only was the 1961 Constitution functioning properly on November 11, 1965, but there could be no necessity to deviate from it. The respondents in the courts below shrunk from arguing that the judges themselves were operating under the stress of necessity. It is for the litigant to account for something illegal, not for the judges to deviate from the law.

The doctrine, if invoked, must be invoked by one seeking justification for action otherwise unlawful. If it is invoked by a

148 [1964] 3 Supreme Court of Cyprus 1.

private individual, i.e., as an excuse for tort, the principle is that no one can rely upon necessity stemming from his own fault: see Southport Corporation v. Esso Petroleum Co. Ltd.¹⁴⁹ Here the onus is on the respondents to show what necessity there was for not applying the ordinary law. They cannot say that it was due to the absence of any other government, since they themselves were responsible for the break-down of normal government.

The only necessity which could press upon the court would be in order to avoid a situation where, if the measures of the régime were invalidated, there would be nothing to take their place The argument that there would be a vacuum unless the régime's measures were enforced is untenable since, while there would be gaps in the statutes, such as taxing statutes, the bulk of the Statute Book would still remain, and there could be no question of chaos. It is not for the courts to fill gaps in the law, particularly when its duty is to enforce a written Constitution with entrenched rights and more particularly when the lawful Sovereign still claims the power and jurisdiction to legislate. It is not for the court to govern, nor is it its duty to assess whether or not the revolution has been successful. Its function is to administer the law and to attempt to curb the illegal acts of the rebel régime. It must either apply the law or capitulate. It cannot accept what it knows is not law on the pretext of necessity.

In any event there was no proof of the necessity for the proclamation of a state of emergency or for the detention of the appellant's husband, other than the ipse dixit of Mr. Dupont. Even a lawful Sovereign must prove the necessity, except in case of war, and there is no basis on which the ipse dixit of Mr. Dupont, who is not a sovereign, can be accepted. Although Fieldsend A.J.A. was prepared to accept the necessity for the proclamation, he was not prepared to hold that the particular detention regulations were warranted. It may well be that a private individual can, in certain cases, invoke the doctrine, but he must nevertheless, prove the case strictly and the respondents in this regard can be in no better position than that of private individuals.

Allegiance

Macdonald J.A. dealt with allegiance at length in his judgment, taking a view as to it which was followed by Quénet J.P., but not by the other judges. His conclusions were that in English law when the lawful Sovereign can no longer give protection he forfeits

149 [1954] 2 Q.B. 182; [1954] 3 W.L.R. 200; [1954] 2 All E.R. 561, C.A.

the right to allegiance; that allegiance is owed to the de facto monarch of a country, that the present régime in Rhodesia is a de facto government of the country, and that the régime is therefore entitled to his allegiance. He cites Calvin's case,¹⁵⁰ stating that it is because allegiance is based upon actual protection as opposed to the theoretical right to protect, that English law demands obedience to the laws of a de facto Sovereign. On his view the phrase "Sovereign for the time being" in the Statute of Treason, 1495, means a de facto ruler; so that since Mr. Dupont is in actual physical power in Rhodesia at the moment, he is equivalent to a Sovereign.

Macdonald J.A. pointed out that in section 30 of the Interpretation Act, 1889, the same phrase "Sovereign for the time being" is found and that it is inconceivable that the Legislature would not have been fully aware of the ancient origin and constitutional significance of the formula, and inconceivable that the formula would have been used in the above provision, if it were intended to bear an entirely different meaning to that which it had borne since 1495. But it was used in a different sense. Macdonald J.A. concluded that prior to U.D.I. the inhabitants of Rhodesia had a dual allegiance. But that doctrine is one that is unknown to British constitutional law and, while it may be true that in the Dominions British subjects owe a divided allegiance to Her Majesty, nevertheless in Rhodesia, which is a colony, allegiance is owed to "The Queen of the United Kingdom and Colonies." According to Macdonald J.A. the meaning of the Statute of Treason, 1495, is that where there is a de facto government, the duty of allegiance owed to such de facto government extends even to service in the armed forces against British forces, if invasion were to be contemplated. This is entirely contrary to the Board's decision in De Jager v. Attorney-General of Natal.¹⁵¹ Macdonald J.A. seems to suggest that immediately the revolution took place the allegiance of the inhabitants of Rhodesia switched to the rebel régime. He holds that Her Majesty failed to take what would have been the appropriate political counter stroke of appointing Ministers to replace those dismissed, and instead took action which in his view was unconstitutional, in that it was in breach of convention. The conclusions reached by Quénet J.P. really amount to a capitulation in the face of force and need no further consideration, but those of Macdonald J.A. are put on an elaborate legal basis The foundation of his conclusions is the concept that protection and allegiance

150 7 Co.Rep. 1 (a).

151 [1907] A.C. 326, P.C.

are reciprocal duties (Calvin's case¹⁵², constituting a double and reciprocal bond (regere et protegere, duplex ligamen).

Macdonald J.A., also relied upon a dictum of Lord Russell of Killowen in Carrick v. Hancock¹⁵³ as showing that if the power to give protection does not exist, the duty of allegiance ceases, but there are weighty authorities to the contrary. Protection has not in fact been withdrawn from the inhabitants of Rhodesia, and consequently there could be no basis for Macdonald J.A.'s conclusion that the duty of allegiance having ceased he was not bound to apply United Kingdom statutes. There is nothing to equate protection with armed military force and there is no reason to suppose that Britain would not protect Rhodesia from foreign invasion. In De Jager v. Attorney-General of Natal,¹⁵⁴ a citizen of the South African Republic resident in Natal, joined the Boer forces during their six months occupation of the northern part of Natal, and when recaptured he was tried for high treason. Although protection was thus temporarily withdrawn, it was held that his duty of allegiance did not cease, and he was convicted: see per Lord Loreburn L.C.¹⁵⁵ Macdonald J.A. sought to distinguish De Jager v. Attorney-General of Natal,¹⁵⁶ on the basis that protection had only temporarily been withdrawn. The true test is whether or not the lawful Sovereign is attempting to reassert Her authority.

There is ample authority that the allegiance originally owed by a British subject to the Sovereign cannot be thrown off except with the Sovereign's consent: see Blackstone Commentaries on the Laws of England, Vol. 1, 17th ed. (1830), p. 369. Apart from the provisions of certain Nationality Acts, that rule is clear.

[Lord Reid: Does Blackstone explain what happened in 1688? Natural allegiance was owed to James II and could not be thrown off. I do not follow it at all.]

The theory accepted by Blackstone was that James II abdicated. In accordance with practice a new commission was issued to every judge, so that for those who accepted, there was no conflict. Blackstone states that the natural-born subject of one prince to whom he owes allegiance may be entangled by subjecting himself absolutely to another, but it is his own act that brings him into these straits

152 7 Co.Rep. 1 (a).

153 (1895) 12 T.L.R. 59, D.C.

154 [1907] A.C. 326.

155 Ibid. 328.

156 [1907] A.C. 326.

and difficulties, of owing service to two masters. The difficulty^* which Blackstone referred to, arose in Rex v. Neumann¹⁵⁷ where a German living in South Africa, who served with the South African forces, and was captured by the Italians, fought thereafter against South Africa and was held not to have thrown off his allegiance by leaving the protection of South Africa, since even after leaving South Africa he could still have enjoyed its protection. That case¹⁵⁷ was referred to in Public Prosecutor v. Oie Hee Koi,¹⁵⁸ where it is stated that the continuance of allegiance may be shown in a variety of ways, and that it is to be determined as a matter of evidence. In Rex v. Neumann¹⁵⁹ Neumann had taken an oath of allegiance to His Majesty King George VI before leaving the Union of South Africa. In In re Stepney Election Petition, Isaacson v. Durant,¹⁶⁰ Lord Coleridge C.J., distinguishing Auchmuty v. Mulcaster,¹⁶¹ states that allegiance cannot be got rid of, except by a treaty, to which the Crown is a party, by which the Crown's claim to allegiance is relinquished. In Murray v. Parkes,¹⁶² a case where a person born in Eire who had resided in England since 1934, was held liable for National Service, Humphreys J. said that the only other way in which a natural born British subject would lose his British nationality was by loss of territory by the British Crown by cession, which would involve the loss of the right to allegiance. So it is not enough to attempt to secede: see also Joyce v. Director of Public Prosecutions,¹⁶³ per Lord Jowitt L.C.¹⁶⁴ Macdonald J.A.'s approach flies in the face of these authorities.

The manner in which the Sovereign chooses to afford protection is within the Sovereign's own discretion: see China Navigation Co. Ltd. v. Attorney-General¹⁶⁵; per Scrutton L.J.¹⁶⁶ and Lawrence L.J.¹⁶⁷; Attorney-General v. Tomline¹⁶⁸; and Chandler v. Director

* Reporter's note. In the paragraph referred to Blackstone was speaking of a natural-born subject. In the next paragraph, Blackstone says that "local allegiance is such as is due from an alien, or strange born, for so long as he continues within the King's Dominions and protection, and it ceases the instant such stranger transfers himself from this Kingdom to another."

157 [1949] 3 S.A. 1238.

158 [1968] A.C. 829, 859; [1968] 2 W.L.R. 715; [1968] 1 All E.R. 419, P.C.

159 [1949] 3 S.A.

160 (1886) 17 Q.B.D. 54, 61.

161 (1826) 5 B. & C. 771.

162 [1942] 2 K.B. 123; [1942] 1 All E.R. 558, D.C.

163 [1946] A.C. 347; [1946] 1 All E.R. 186, H.L.(E.).

164 [1946] A.C. 347, 366.

165 [1932] 2 K.B. 197.

166 Ibid. 218.

167 Ibid. 222.

168 (1880) 14 Ch.D. 58.

of Public Prosecutions¹⁶⁹ per Lord Reid¹⁷⁰ and perLord Pearce.¹⁷¹ There is no basis for the suggestion that the Queen, having withdrawn her protection, had lost her claim on his allegiance.

Macdonald J.A. referred to Halsbury's Laws of England, 3rd ed. Vol. I (1952), p. 529 where Rex v. Francis, Ex parte Markwald ¹⁷² and Markwald v. Attorney-General¹⁷³ were cited in support. He held that after November 11, 1965, a conflict of allegiance arose, in which allegiance to Her Majesty as "Queen of the United Kingdom and Colonies" had to yield. This conclusion is not permissible.

There is no doubt whatever, that the British Nationality Act, 1948, places Southern Rhodesia in an unprecedented position, since while remaining a Colony it is treated similarly to the Dominions. The Act places Southern Rhodesia, for the first time, in a position to provide for Southern Rhodesia citizenship, for the purposes of the Act, and "for the purposes of the Act" in the definition section (s. 32 (1)) references to "colony" are to exclude Southern Rhodesia. The Act provides no answer to the question whether a citizen was to owe allegiance to the "Queen of Rhodesia" or to the "Queen of the United Kingdom and Colonies". There cannot be any doubt that in Canada, Australia, New Zealand and the other Dominions the Queen has a separate legal and political capacity as Queen of Canada, Australia, New Zealand, etc., but it would be a complete misunderstanding of the British Nationality Act 1948, to read it, as, by implication, extending the effect of the Statute of Westminster, 1931, so as to create a new and separate allegiance, and as endowing the Queen with a new status. Section 3 (1) means only that if a citizen of Southern Rhodesia commits treason in Southern Rhodesia it is not to be considered as an offence against the laws of the United Kingdom and Colonies, as defined, but that is not to stop it being treason in Southern Rhodesia. It does not deal with dual citizenship.

The Act cannot be read as turning Southern Rhodesia into anything other than a Colony. No doubt Southern Rhodesia was very far advanced along the road to independence, in November 1965, but it had not yet achieved it. The British Nationality Act, 1948, whatever its effect was, did not change the person to whom allegiance was owed.

In exercise of the power granted by the Act, the Legislative

169 [1964] A.C. 763; [1962] 3 W.L.R. 694; [1966] 3 All E.R. 142, C.C.A. and H.L.(E.).

170 [1964] A.C. 763, 791.

171 Ibid. 814.

172 [1918] 1 K.B. 617.

173 [1920] 1 Ch. 348.

Assembly passed the Southern Rhodesia Citizenship Act 1963, (No. 63 of 1963), providing for Southern Rhodesian citizenship. Section 17 of that Act allows a citizen to make a declaration renouncing his citizenship. The form of oath of allegiance does not indicate any change in the Sovereign capacity of Her Majesty. In any event the 1961 Constitution, which is of later date than the British Nationality Act 1948, makes it perfectly clear that Sovereignty rests in Her Majesty as "Queen of the United Kingdom and Colonies": see section 117 (8) of the Constitution, and the Interpretation Act, 1889, s. 30. There is therefore no such concept as the "Queen of Rhodesia," and no dual allegiance. The Legislative Assembly could not change the identity of the Sovereign.

Lord Denning M.R. in Reg. v. Secretary of State for Home Department, Ex parte Bhurosah¹⁷⁴ said "In Mauritius the Queen is Queen of Mauritius and the Government is the Queen's Government of Mauritius".¹⁷⁵ The Government of Mauritius was the Queen's Government of Mauritius, and if Lord Denning M.R. merely intended to state that Her Majesty was a part of that Government the statement is unobjectionable, but if he meant that she had the capacity as "Queen of Mauritius" independent of her capacity as "Queen of the United Kingdom and Colonies," he was wrong.

The Statute of Treason 1495.

The Statute of Treason, 1495, was passed at the end of the Wars of the Roses, and its object appears to have been to cast a veil over the past, but there are those who think that it was intended to apply to the future so that faithful service to the King should not be classed as treason, if it were subsequently found that he was not the King. Statements by Hale, Hawkins, East and Foster were examined by Macdonald J.A. who concluded that "obedience to the Sovereign Lord for the time being" was to be interpreted as obedience to Mr. Dupont, or at least to the Government represented by him. No Sovereign other than Queen Elizabeth II is in possession of the throne, or claims to be Queen of England, and whatever else it may mean, it must refer to England only, and not to a particular part of Her Majesty's Dominions, particularly not while she is still asserting Her authority.

If and in so far as it applies, its application is to servants, and

174 [1968] 1 Q.B. 266, 284; [1967] 3 W.L.R. 1259; [1967] 3 All E.R. 831, D.C. and C.A.

175 [1968] 1 Q.B. 266, 284.

it does not deal with a rebel in opposition who does not claim legitimacy for himself. It is intended to deal with the case where the right to the throne is uncertain, and it is to protect those who have obeyed "A Sovereign in possession", but here there is no uncertainty as to the rightful Sovereign, as there might well have been in the 15th century. Furthermore, it does not protect one who owes allegiance to the lawful Sovereign, but who breaks that allegiance to serve another. Macdonald J.A. does not refer to the proviso which states that "No person ... shall take any benefit ... by this Act which shall thereafter decline from his ... allegiance."

On its face the Statute does not deal with the question who is the lawful Sovereign, it simply provides a specific defence to a specific charge of treason. As an Act of Parliament, it must yield to later Acts, including the Act of Settlement, 1700, and the Promissory Oaths Act of 1868. In any case its effect would be overridden by the Southern Rhodesia Act of 1965. [Reference was then made to Hale's History of the Pleas of the Crown, Vol. I, paras. 60, 100, 101, 104, 272; Hawkins' Treatise of the Pleas of the Crown, 8th ed. (1824), Bk. I, Ch. 17, ss. 11 to 18, 87, 88; East, Pleas of the Crown (1803), Vol. I, pp. 54, 55; Blackstone Commentaries on the Laws of England, 15th ed., Vol. 4, pp. 76, 83-4 and Vol. I, p. 220.]

The principle which seems to be established by the Statute was that an individual citizen who was called upon to perform services for a usurper, committed no wrong in so doing. What Blackstone says is, that, if the Pretender, James III, had succeeded, those who had obeyed the Sovereign in possession for the time being would have been guilty of treason, and it was not for them to say which was King, and which not. But that principle could not be applied to judges whose duty it is to say what the law is. It is really only an example of duress as a defence to a criminal charge. Sir William Holdsworth, in his History of English Law, Vol. 3, p. 468, summed up the position accurately when he said that "a Statute was needed to show that faithful service to a reigning King was no treason to a successful claimant to the throne."

There is no reported instance of use being made of the Statute by anyone charged with treason.

Examination of a number of cases^*2 dealing with adherence

*2 Reporter's note. The cases examined appear to have been Rex v. MacGrowther (1746) 18 state Trials 391: Rex v. Kin loch (1746) 18 state Trials 395; and Rex v. MacDonald (1747) 18 State Trials 858.

to the Young Pretender are contained in Vol. 18 of the State Trials, but the Statute does not appear to have been pleaded as a defence, successfully or otherwise. In The Trial of John Cook¹⁷⁶ the court dealt with the Statute saying that it was intended to preserve the King's Government, not to preserve anti-monarchical governments. The judgments in the trials of the regicides, cannot be regarded as of great persuasive authority, but, Hawkins refers to the Trial of Sir Henry Vane,¹⁷⁷ where the court held that from the execution of Charles I, Charles II was both de facto and de jure King, no-one else having exercised Sovereign power of the type known to English law. Persons during the Protector's time were made to take an oath of allegiance to Parliament without either King or House of Lords, therefore Charles II was not recognised, but no steps were taken to depose him. In l660 legislation was passed validating certain of the Commonwealth measures and nullifying others. Emlyn in the preface to Sir Matthew Hale's Pleas of the Crown, records the attitude adopted by Hale C.J., "that truly learned and worthy judge," when asked by Oliver Cromwell to become one of his judges. Hale C.J. refused at first, but on being pressed to give his reasons, stated that "he was not satisfied with the lawfulness of his [Cromwell's] authority and therefore scrupled the accepting of any commission under it, to which Cromwell replied that since he had got possession of the Government he was resolved to keep it" stating that while it was "his desire to rule according to the laws of the land ... yet if they would not permit him to govern by red gowns he was resolved to govern by red coats." Hale eventually accepted a commission in the Common Pleas, but having held a commission under Charles I, after the first two or three circuits "he absolutely refused to sit on the Crown side thinking it the safer course in so dubious a case." Macdonald J.A. was wrong in holding that by virtue of the Statute of Treason, 1495, allegiance was lawfully transferred to an usurper.

Sir Ivor Jennings in Constitutional Problems in Pakistan, 1st. ed. (1957), pp. 79, 259, 278, 295, deals with Federation of Pakistan v. Moulvi Tamizuddin Khan (Constitutional Civil Appeal No. 1 of 1955),¹⁷⁸ where the Governor-General had dissolved the Constituent Assembly and, there being then no legislative body, passed certain temporary laws, and it was held that he had acted in order to avert an impending disaster and to preserve the State and society

176 (1660) 5 State Trials 1077.

177 (1662) 6 State Trials 119.

178 [1955] 1 F.C.R. 155.

from dissolution: see Special Reference No. 1 of 1955.¹⁷⁹ This case¹⁷⁹ started with the proposition that the Constituent Assembly had been dissolved, and stated the results of the earlier case.¹⁸⁰ A similar case is Rex v. Stratton and Others¹⁸¹ where Lord Mansfield held that an act which would otherwise have been illegal became legal if done bona fide under the stress of necessity to preserve the Constitution, the state, or society from dissolution. [Reference was made to Sabally and N'Jie v. H.M. Attorney-General, ¹⁸² per Lord Denning M.R.¹⁸³ and to Attorney-General for the Republic v. Mystify Ibrahim of Kyrenia.¹⁸⁴]

The respondents cannot point to any necessity equivalent to that existing in either Pakistan or Cyprus. The judges in the courts below should not have shrunk from bringing about a situation where many acts of the illegal régime would have been invalid, even if gaps were thus left. The probable consequences have been exaggerated and the common law still exists, which can deal with them. Even if Her Majesty's Government were to fail to fill the gap, by legislative action, most of the ordinary functions of government could still be continued. The Criminal Procedure and Evidence Act, 1939, would still remain, and the Attorney-General, not being a Minister who has been dismissed, could still prosecute. Further, the Governor has power to appoint an Attorney-General.

For these reasons the Board should declare that the Appellate Division's determination was wrong, and the detention of the appellant's husband illegal.

1968, June 12. L. J. Blom-Cooper following. Two reasons advanced by Beadle C.J. for enforcing certain of the legislative and administrative acts of the rebel régime were that the régime had acquired de facto status in international law, and that the court was in the position similar to that of Her Majesty's courts in the Channel Islands under German occupation during the War.

But Rhodesia has not acquired anything like de facto status in international law. In modern international law criteria, a régime which does not conform to certain minimum standards of human rights is not in "effective control," so as to entitle it to recognition. The régime in Southern Rhodesia does not conform to those standards, and it is thus not in effective control, as evidenced by

179 [1955] 1 F.C.R. 439.

180 [1955] 1 F.C.R. 155.

181 (1779) 21 state Trials 1045.

182 [1965] 1 Q.B. 273; [1964] 3 W.L.R. 732; [1964] 3 All E.R. 377; C.A.

183 [1965] 1 Q.B. 293.

184 [1964] 3 Supreme Court of Cyprus 1.

the absence of recognition by any other state in the international community. In any case it is not possible for the court to inquire into the status of an illegal régime within the court's own territory. The rebel régime does not enjoy Sovereign status in the eyes of Her Majesty's Government, and therefore there is no ground upon which Her Majesty's courts would accord to it the status which they would be bound to accord to a foreign Sovereign during time of war, when under belligerent occupation. In Quin and Others v. The King,¹⁸⁵ the Royal Court of Guernsey did no more than apply the rules of international law, as reflected in the Hague Regulations of 1907. Insurgents would not acquire de facto status against their own Sovereign.

The courts of the Sovereign must uphold the Constitution; the question of recognition is for the lawful Sovereign; it is not for the court to determine where true Sovereignty lies. The Hague Regulations were merely declaratory of the pre-existing international law and therefore, even before 1907, the position would have been the same. Under Article 45 of the Hague Regulations it is the duty of the occupying power to maintain law and order. They may alter the laws, but only so far as is necessary. [Reference was made to Oppenheim's International Law, 7th ed. (1952), Vol. 2, paras. 169, 172, and to Rex v. Maung Hmin.¹⁸⁶] The analogy drawn by Beadle C.J. between Rhodesia after U.D.I. and the Channel Islands during the German occupation after 1940 is fallacious.

1968 June 12, 13, 17. J. G. Le Quesne Q.C., Andrew Batesonand Stuart McKinnon as emcee curiae. There can be no doubt that the Constitution remains that of 1961, subject to any amendments produced by the Southern Rhodesia Act, 1965, and the Order in Council of 1965. There is a possible doubt as to whether the Act and the Order were effective to amend the Constitution. It is not contested that the Constitution has never been lawfully abandoned or replaced. Applying the Constitution strictly, the detention of the appellant's husband is obviously invalid, since it depends on the authority of a person not authorised under the Constitution to make such an order. There can be equally little doubt that, by the letter of the Constitution, neither the so-called Parliament nor the self-styled Ministers have, since November 11, 1965, had any authority, and that none of their legislative or executive acts, since

185 Unreported. P.C. No. 10 of 1952.

186 [1946] Annual Digest and Reports of Public International Law cases (edited by H. Lauterpacht, K.C., LL.D., F.B.A.) (1951) Case No. 139, p. 334.