• In the case of Madzimbamuto v Lardner-Burke [1969] 1 AC 645, it was found that where an illegal regime creates legislation, these will be considered invalid and will not have the capacity to override the right of Parliament, who is the lawful sovereign, to create acts.
  • The UK’s sovereignty over the colony meant that the government was not able to pass laws and as such the Emergency Power Regulations were invalid.

Facts of the Case

  • Southern Rhodesia, a British colony, unilaterally declared independence.
  • This act was deemed legally invalid by the UK government and as such the legitimacy of the colony’s government was not recognised by the UK.
  • C was detained under the Emergency Power Regulations which were passed prior to the occurrence of this situation.
  • It was established that C’s detention was ultra vires in the Appellate Division of the High Court of Southern Rhodesia.
  • A while later, an order was created which extended C’s detention which was seen as legally valid.
  • As such, C appealed to the Privy Council.


  • Was C’s detention wrong due to the Emergency Power Regulations being invalid?

Held by the Privy Council, Rhodesia

  • The Privy Council allowed the appeal and found that the order under which C was detained was illegal.

Lord Reid:

  • It was found that the declaration of independence by Rhodesia was invalid, and the country remained to be a British Colony. His lordship also put forth the criteria for where something is done unlawfully but is capable of being recognised by the courts.
  • “…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.” [650]
  • “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.” [653]

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.” [729B]