Why the Zimbabwe Supreme Court could not endorse Chamisa as leader of MDC

What this factual conspectus brings to the fore is the concept of de facto and effective control as expounded in the renowned case of Madzimbamuto v Lardner-Burke N.O. & Anor N.O.; Baron v Ayre N.O. & Ors N.N.O. 1968 (2) SA 284 (RAD). This case revolved around the legitimacy of the Rhodesian Government and its enactments after it had usurped governmental authority following the infamous Unilateral Declaration of Independence on 11 November 1965.

Beadle CJ took the position that the status of the Government was that of a fully de facto government as one that was in effective control of the territory and that this control seemed likely to continue. However, it was not yet so firmly established as to justify a finding that its status was that of a de jure government. Quenet JP took a firmer position and held that the Government was not only the country’s de facto government but had also acquired internal de jure status. Macdonald JA echoed that position and took the view that the Government was the government “for the time being” within the state of Rhodesia and therefore a de facto government within the meaning of English constitutional law. Consequently, insofar as a municipal court is concerned, a de facto government is a de jure government in the sense that it is the only law-making and law-enforcing government functioning “for the time being” within the state. Jarvis AJA also found that the Government had effective control of the territory and that this control seemed likely to continue.

The only judge to take a firm dissenting position was Fieldsend AJA. He held that, while the authorities were factually in control of all executive and legislative powers in Rhodesia, they had not usurped the judicial function. Accordingly, they were neither a de facto nor a de jure government. However, necessity provided a basis for the acceptance as valid of certain acts of the authorities. This was so provided that the administrative or legislative act in question was directed to and reasonably required for the ordinary orderly running of the country, that the rights of citizens under the lawful 1961 Constitution were not defeated, and that there was no public policy consideration which precluded the court from upholding the act.

The judgment of the Appellate Division was taken on appeal to the Privy Council in Madzimbamuto v Lardner-Burke & Anor [1969] 1 AC 645. Lord Reed, writing for the majority, opined that the conceptions of international law as to de facto and de jure status were inappropriate where a court sitting in a particular territory had to decide on the validity or otherwise of a new regime which had gained control of that territory. Accordingly, the usurping government in control of Southern Rhodesia could not, for any purpose, be regarded as a lawful government. As regards necessity and the need to preserve law and order within the territory controlled by the usurper, no such principle could override the legal right of the United Kingdom to make such laws as it deemed proper for territories under the Queen’s sovereignty. Thus, 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. Consequently, the emergency regulations, made by the Officer administering the Government in Rhodesia, were void and of no effect. The determination of the Appellate Division was therefore erroneous and the order under which the appellant’s husband was detained was invalid.

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