Madzimbamuto v Lardner-Burke [1969]

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  • Created by: channyx
  • Created on: 20-03-20 19:12

In 1923 Southern Rhodesia came under the protection of the Crown and became known as the Colony of Southern Rhodesia. By 1961 it had become an established convention for the Parliament of the United Kingdom not to legislate for Southern Rhodesia on matters within the competence of the legislative assembly of Southern Rhodesia except with the agreement of Southern Rhodesia. In the latter year a new Constitution was granted (the "1961 Constitution").

In that Constitution it was provided, inter alia, that "no person shall be deprived of his personal liberty save as may be authorised by law" but that "nothing contained in any law shall be held to be inconsistent with or in contravention of" that provision "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".

A "period of public emergency" was defined as meaning, inter alia, any period not exceeding three months during which a state of emergency had been declared to exist by proclamation. It also provided that any person aggrieved by any determination of the High Court relating to an alleged contravention of those provisions could appeal to Her Majesty in Council.

The 1961 Constitution also provided, subject to specially entrenched provisions and the right of Her Majesty in Council to amend, etc, nine specified sections, for the amendment of the Constitution by the legislature. The Emergency Powers Act, 1960, of Southern Rhodesia remained in force under the 1961 Constitution. It enabled the Governor to proclaim a state of emergency which could remain in force for three months only. Whilst the proclamation was in force regulations could be made by the Governor making provision for summary arrest or detention of any person. A state of emergency under the Act of 1960 was proclaimed (validly) on 5 November 1965, and regulations were made under the Act.

On 6 November 1965, the first respondent made an order for the detention of the appellant's husband. On 11 November Mr Smith, the Prime…

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