No. 1]
De Facto Officials and “Usurpers”
In Madzimbamuto v. Lardner-Burkel one of the several fun-
damental questions of law discussed was that of the relationship
between an usurping government and a lawful government. The
Privy Council adverted to the possibility that there might be a
general principle, depending on implied mandate, recognising the
need to preserve law and order in territory controlled by a usurper.2
The dissenting view of Lord Pearce would have applied the principle
of necessity or implied mandate.3 The views of the majority were
carried a step further in Adams v. Adams,4 when recognition was
refused to a divorce decree pronounced by a Judge appointed after
the Unilateral Declaration of Independence. The particular question
of present interest is the rejection of the argument that the divorce
should be regarded as the valid act of a de facto judge.5 From
a practical point of view, these cases offer little assistance to loyal
citizens in Southern Rhodesia carrying on their normal tasks. It
has been suggested that the English action constitutes a ‘legal
blockade’ in which ‘innocent private, individuals … may be caused
undeserved hardship’, remedial action being left to the executive
or legislature.7 It is therefore of interest to examine the judgment
of Henry, J. in Bilang v. Rigg,3 delivered on 23 March 1971, with
regard to the question of the validity of acts done by de facto
officials.
In Bilang, a writ of mandamus was issued to compel the
Registrar of the Court to re-seal a grant of administration made
in Southern Rhodesia. United States cases on the validity of acts
of revolutionary State governments suggest that valid acts of
such governments include ‘acts necessary to peace and good order
among citizens, such for example as acts sanctioning and protecting
marriage and the domestic relations, governing the course of
descents…’.9 The grant of administration in Bilang would there-
1 [1968] 3 All E.R. 561.
2 Ibid., at p. 577.
3 Ibid., at p. 584.
4 [1970] 3 All E.R. 572.
5 Ibid., at pp. 588-591.
0 Ibid., at p. 587.
7 Ibid., at p. 592.
8 Supreme Court of New Zealand at Auckland, not yet reported.
9 Texas v. White, 7 Wall. 700 (1868), at p. 733.
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fore appear to be a similar type of act, from the point of view of
validity, to the divorce decree in Adams. Why then should different
decisions be reached in the two cases?
In Bilang, the Court stated that the sole question was whether
or not the Court making the grant was at the time a ‘competent
Court in any Commonwealth country’ within the meaning of the
Administration Act, 1952 ‘o (replaced by the Act of 1969). In Adams,
the question of competence of the court pronouncing the divorce
decree, in municipal law, was raised under common law principles.1
The grant in Bilang was made by Mr. Perry, an Additional Assistant
Master of the High Court of Rhodesia, appointed on 13 September
1966, i.e., after the Unilateral Declaration of Independence, by the
Minister of Justice, acting under the Administration of Estates
Act, 1907.
In Madzimbamuto, it was accepted that the Minister (inter alia)
had been lawfully dismissed before this date. 2 The Court in Bilang
took the view that the Minister of Justice was not qualified to act
as such. However, the Court did not hold that the Minister’s acts
were therefore totally invalid. In the Court’s judgment, as the United
Kingdom legislation did not expressly forbid the act of Perry, his
grant was competent, following In re Aldridge,13 and the opinion
of Lord Pearce in Madzimbamuto. It
is not proposed, in this
discussion, to investigate the question as to the extent to which
those portions of Lord Pearce’s dissenting judgment cited in Bilang
can be reconciled with the majority judgment.
In Aldridge, a motion for habeas corpus was considered by the
Court of Appeal. A prisoner, who had been tried in 1890 by Edwards,
J., alleged that Edwards, J. was not then a judge. In Buckley v.
Edwards,14 the Privy Council had previously ruled the appointment
invalid. Aldridge, although reported in 1897, was decided in 1893,
the question of Edwards, J.’s appointment having been the subject
of a ‘political party fight’ in Parliament in 1890.11 In Aldridge, the
Court held that the prisoner had been lawfully convicted by a
de facto judge. However, there are strong indications that this prin-
ciple does not extend to wilful abuse of office, still less by ‘mere
usurpers’. 16 Other opinions in that case amplified the concept of
10 15 Geo. I, c. 52, (N.Z.).
“1 [19701 3 All E.R. 572, at p. 584.
12 [1968] 3 All E.R. 561, at p. 577.
13 (1897), 15 N.Z.L.R. 361.
14 [1892J A.C. 387.
15 (1927), 3 Butterworth’s Fortnightly Notes 97.
16 (1897), 15 N.Z.L.R. 361, at p. 372 (per Richmond, J.).
No. 1]
NOTES
a ‘usurper’ as meaning ‘a person without a colourable title’17 and
emphasised that Edwards, J. had acted ‘by colour of right’. 8
An American decision apparently regards usurpers as persons
not ‘clothed with the evidence of such offices and in apparent
possession of their powers and functions’. 9 The exclusion of usurpers
from the de facto judge concept in Aldridge was endorsed by the
New Zealand Court of Appeal in Fitzgerald v. MacDonald. In
Adams, the Court suggested that the de facto judge principle ‘is
inconsistent with R. v. Cronin.2 1 Cronin has been described as
‘somewhat unsatisfactory’.2 2 But, whether or not this case is directly
in point, no consideration appears to have been given to the de
facto judge question, reference only being made to cases on venire
de novo. For this reason, inter alia, Cronin can hardly be described
as decisive on this point.
In Bilang, the Court considered that the only defect in the ap-
pointment of Perry was that the power was exercised by a de
facto Minister. However, the Court repeatedly and specifically termed
the Smith Government ‘the usurping power’. It would, therefore,
appear that the Minister of Justice could correctly be termed a
‘usurper’ within the meaning of the exception to the Aldridge rule.
Let us then return to the discussion in Adams of the validity
of the acts of a de facto judge. In that case, the Court held that
the doctrine has never been applied ‘under a usurping power’ 23
Although this ground is only one of several relied upon in Adams,
it would appear that Aldridge and Adams can be reconciled on
this point. However, in Bilang, the Court relied upon Aldridge (inter
alia) but found some difficulty in distinguishing Adams. The Court
did not read Adams as relying upon the lack of qualification of
the appointing authority, but as relying upon the failure of the
judge to qualify under the only valid constitution. The Court con-
sidered it perhaps more correct to view the appointment as one
under a statute (constitution) declared by the United Kingdom
legislation invalid. Insofar as Adams and Aldridge may conflict, the
Court proposed to follow the latter as binding on this question,
17 Ibid., at p. 379 (per Denniston, J.).
18 Ibid., at p. 380 (per Conolly, 1.).
19Norton v. Shelby County, 118 U.S. 425 (1886), at p. 441.
20 (1918), 37 N.Z.L.R. 769, at p. 789 (per Chapman, J.), and at p. 804 (per
Herdman, J.).
21 [1940] 1 All E.R. 618.
22 R.B. Cooke, Venire de Novo, (1955), 71 L.Q.R. 100, at p. 106.
23 [1970] 3 All E.R. 572, at p. 590.
McGILL LAW JOURNAL
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unless the United Kingdom legislation expressly declared the act
of Perry void, which it was held, was not the case. If the argument
previously advanced concerning the ‘usurpers’ exception to the
Aldridge rule is correct, then there is no conflict between Aldridge
and Adams. As the Court in Bilang regarded the Smith Government,
including the Minister of Justice, as ‘usurpers’, it might be argued
that this, of itself, rendered any actions of the Minister of Justice
invalid.
This line or argument would, of course, totally avoid the question
of the status of the Governor’s statements, and the precise scope
of the subsequent statement of the Secretary of State for Foreign
and Commonwealth Affairs that ‘[t]he former Governor’s injunction
has lapsed’. 24 The Governor’s directive to all citizens ‘to carry on
with their normal tasks’ was given prominence in Bilang, but it
is not clear that this directive, alone, was decisive.
However, it will be pointed out that the practical result of
Bilang is unavoidable. As Lord Pearce emphasised in Madzimbamuto,
the law should, even in the case of rebellion, have some regard to
the preservation of the citizens from chaos and disorder.25 It is
therefore suggested that the same result could be achieved by
another route. The Court in Bilang cited and discussed at some
length both Madzimbamuto and Adams. It is submitted that the
judgment in Bilang proceeds on lines very similar to those which
an English court would have pursued, with some significant dif-
ferences. But, for a New Zealand court, Southern Rhodesia is either
a colony of a foreign state, the United Kingdom, 26 or an independent
state. If the New Zealand court, with or without an executive
certificate, reaches the conclusion that Southern Rhodesia is still
a colony of the United Kingdom, the question would then arise
of the attitude to be taken to the action of foreign ‘usurpers’. In
Madzimbamuto and Adams, the basic question was that of the
validity of acts of what may be termed indigenous ‘usurpers’. Recent
dicta regarding the acts of non-recognised governments 27 may pro-
vide a solution to this problem. 2 This view may provide a more
24Parliamentary Debates (Hansard), House of Commons, H.M.S.O., (London,
1969-70), 5th series, Vol. 797, at pp. 13 et seq.; quoted in Adams v. Adams,
[19701 3 All E.R. 572, at p. 583.
25 [1968] 3 All E.R. 561, at p. 581.
26 Cf. A. Quentin-Baxter, Rhodesia and the Law, (Wellington, 1970), at p. 39.
27 Carl Zeiss Stiftung v. Rayner & Keeler (No. 2), [1967] 1 A.C. 853, at pp.
903, 907-908.
28 Quentin-Baxter, op. cit., n. 26, at p. 43.
No. 1]
NOTES
certain rule that that adopted in Bilang. If the court examines each
case using the Bilang test, every situation will require consideration
separately. Regarding the problem as one of the validity of acts
of an unrecognised foreign government, a single test for validity
may well prove sufficient.
F. M. Auburn*
*Lecturer in Law, University of Auckland.
