On the 11th November, 1965, Rhodesians listened intently as their Prime Minister the Hon. Ian D. Smith, addressed the nation. In a strong phenotypically accented voice, he explained the catastrophic situation befalling the once loyal British subjects of Southern Rhodesia.
In essence, the original pioneer settlers and their off-spring were being manipulated by the British Government (“Perfidious Albion”) into sacrificing themselves, on the altar of British self-interest. The national broadcast put Rhodesians on notice that they were in a fight for their lives. The one thing they didn’t plan for or suspect, was the level of treachery and betrayal by Perfidious Albion provocateurs. The parasites were entrenched within Rhodesian leadership ranks. In the end the full extent of the betrayals would reveal itself. By then, Rhodesians had been mightily tested and had shown great character. Most would lose everything, or nearly everything. Rhodesians would disperse to the four corners of the earth and become a diminishing diaspora. A silver lining is that big marbles invariably rise to the top. This truth manifested the quality of the Rhodesian character.
To explain what happened one must read history. It started with a British corporate entity, emboldened with the imprimatur of a Royal Charter from Queen Victoria, and titled the British South Africa Company (“the Company”). This entity had mineral profits on it’s mind. The Royal Charter authorised a special force with militarily prowess to be created. The Force would go forth into the wilds of Central Africa, to conquer and subjugate the Ndebele and Shona tribes In those days, conquest and subjugation were ‘gist for the mill’. Should minerals be discovered, the Company promised the shareholders potential for enormous profits. What is important is that the Company enjoyed the condescension and patronage of the British Royal family. It boasted a share register of some of the most illustrious personages in England. Needless to say, shareholders are typically ferociously self-serving.
Once the financial adventurism ended, and the Company had accepted that enormous profits were not to be had. The British Government (“Perfidious Albion”) orchestrated and manipulated an exit strategy for the Company. Guess who would be left to carry the can? Yes indeed, the pioneers, the original permanent white settlers, who had fought and laboured under the direction of the Company and its Royal Charter. The same pioneers who had been induced, enticed and encouraged to buy land from the Company. Now the Company wanted an exit strategy and the Perfidious Albion mentality would readily oblige.
The pioneers found themselves high and dry and in an invidious position. What were they supposed to do? The hard pressed pioneers would be induced to provide the funds to extricate the Company, less the mineral rights which would remain reserved to the Company. The British Government proposed and executed a scheme in which the Pioneers would provide the funds for the British Government to buy the assets off the Company and those assets would be resold back to the pioneer settlers. A typical self-serving Perfidious Albion scam. The British Government stipulated that the price for ‘self-government and recognition as a British Colony’, was two million pounds BPS at five percent interest. The money was paid on time by the pioneers to the British Government Exchequer. I refer you to section 48 of the 1923 Letters Patent Constitution of Southern Rhodesia.
Southern Rhodesia had been self-governing since 1923, and by 1961 had become the bread bowl of Central Africa, and a jewel in the British Commonwealth of Nations. It had developed the mining industry, and in the process created enormous wealth. It flourished in nearly every area of human endeavour. The mega dam ‘Kariba’, a hydro-electric scheme, had seen the Zambezi river tamed. Southern Rhodesia punched well above its weight during and after World War II. In under forty years (1923 -1961) the country had expanded magnificently, and had outperformed all expectations.
By 1960 the international community, and in particular the State Department of the United States of America (“USA”) had developed a very harsh, uncompromising, irresponsible, unaccountable and racist geo-political dislike for white people in Africa. The slogan that ‘Africa was for black Africans’ was everywhere. These sentiments were clearly racist but weirdly not considered racist. The USA placed immense pressure on Great Britain to end Rhodesian white rule. In effect the policy was that white people in Africa regardless of law, property rights or good faith, should be pushed aside to accommodate black majority rule aspirations. This should happen regardless of the consequences to white people. The policy led to an anti-white mindset throughout Africa. It was capricious, arbitrary and enormously destructive.
Handing over something for no consideration in return, is invariably popular on the beneficial side. Likewise, a handout and not a hand-up, is seldom efficacious. White Rhodesians were expected to voluntarily surrender their labour and accumulated hard-fought wealth without any consideration or compensation. If not voluntarily done, then violent force was applied. The sight of whites being violently dispossessed of their assets was an injustice that reverberated around the world. This type of uncivilised conduct destroyed black African credibility.
I return to the PM Hon, Ian D. Smith’s national broadcast in 1965. That speech ended with the announcement that Rhodesia had no alternative but to declare a Unilateral Declaration of Independence (“UDI”) from Great Britain. The Rhodesians fought until they were so betrayed from within, at which time the betrayal was complete. The Central Intelligence Organisation (“CIO”) under its Director Ken Flower, who commanded the Rhodesian Special Branch, has been exposed for his treachery.
Please keep in mind that under the terms of the original 1923 Letters Patent Constitution, roughly half of the country had been reserved in perpetuity for black occupation as Tribal Trust Lands (“TTL’s”). If whites entered upon TTL’s, they did so by invitation only, and as a guest. The remainder of the country was occupied by white settlers. The law of the country was based predominantly on Roman-Dutch Law with English Law influences. The final court of Adjudicature was in England.
Myself and Hannes Wessells explored the possibility of suing the British Government for, at a minimum, the “two million pounds BPS at five percent interest.” We researched the facts and I briefed Queen’s Counsel, Nick Ferrett QC for a legal opinion. We have one or two disagreements with QC Nick Ferrett’s opinion, but we agree with his conclusion. We profusely thank Nick Ferrett QC for his generosity and assistance.
The opinion is published below for your edification.
By Will Keys
Nick Ferrett QC
Re: Compensation for Disenfranchised Property Owners of the former Colony of Southern Rhodesia
You have requested that I provide an opinion as to whether there is any basis upon which compensation might be claimed from the Government of the United Kingdom (“the UK Government”) for those British subjects who, as the result of the Government granting independence to Zimbabwe, lost the lands of which they had been lawful proprietors in Southern Rhodesia.
I regret to say that I do not think there is any basis for such a claim. The principal reason for that, as I explain later, is that the conduct of the UK Government throughout seems to have been authorised by Parliament, which has absolute authority. Before going into that, it is worth making some observations about the historical background.
Your apprehension that there might be a basis for a claim arises out of Letters Patent, issued in 1923, by which George V established a constitution for self-government within the Colony of Southern Rhodesia. Section 48 of that constitution provided that the “Governor in Council shall pay to the Lords Commissioners of Our Treasury not later than the First day of January, 1924, the sum of 2 million pounds ….”. It also referred to repayment of two loans of 150,000 pounds each. Section 49 relevantly provided that in consideration of those payments identified in section 48, any rights reserved to the Crown in respect of land which had previously been alienated by the British South Africa Company within the territory would thereafter be vested in the Governor of the territory for “the Public Service” of the newly self governing territory.
To understand that clause it is necessary to have regard to some of the history of the British South Africa Company and its administration of territories in Africa. A useful examination of that appears, with respect, in the speech of Lord Sumner in In Re Southern Rhodesia (1919] AC 211. The British South Africa Company (“the Company“) was held in that decision to have been administering the territory on behalf of the Crown so that, when it alienated land, (for example, by granting title to a European settler) that was done with the authority of, and on behalf of the Crown. The distinction mattered because, as I understand the case, the Company was arguing that it was able to alienate land to itself. The Privy Council rejected that proposition.
As a matter of practical history, as I understand your instructions, the 2 million pounds referred to in the Letters Patent were essentially the price at which the UK Government was willing to grant self-government to the territory. The 2 million pounds was raised by the settlers of Southern Rhodesia in the course of a campaign for self-government leading up to the Letters Patent of 1923.
So, as a matter of construction, section 49 of the 1923 constitution did not record a grant of land rights to settlers, but rather a promise to reserve money due to the Crown from land (for example, rent or unpaid purchase prices) to the colonial government for use within Southern Rhodesia. The settlers who had been granted land by the Company already owned that land in the eyes of the Crown.
There were further constitutional interventions by the UK Government over the years. Southern Rhodesia was gathered together with the UK protectorates of Northern Rhodesia and Nyasaland into the Federation of Rhodesia and Nyasaland in 1953. That does not appear to have affected its constitutional status as a self-governing colony. A further constitution was promulgated in 1961. The federation was dissolved in 1963.
The colonial government unilaterally declared independence in 1965. That declaration was never accepted by the UK Government but it did not take any action to reassert control. It did, however, work to obtain sanctions against the new Rhodesian Government in the United Nations.
The constitution adopted within Rhodesia as part of the declaration of independence in 1965 contemplated Rhodesia’s remaining a constitutional monarchy. It made provision for the appointment by Her Majesty of a Governor-General and, in default of that, the appointment of an administrator by the newly formed Rhodesian Government. Ultimately, in 1970, the Prime Minister, Mr Smith, declared Rhodesia to be a republic.
Those machinations form the background to the establishment of the independent State of Zimbabwe in 1979. That followed a conference at Lancaster House in London led by Lord Soames and which brought together the various combatants of the Rhodesian Bush War. Following the accord reached at Lancaster House, and with the unanimous consent of the Rhodesian Parliament, Britain reasserted control over the territory before enacting legislation to grant independence on terms which had been agreed amongst the various interests.
It is important not to gloss over the Rhodesian Bush War, and the conflicting interests violently expressed in it. There had been, for a long time before Lancaster House, growing dissent amongst the indigenous population from what it saw as the imposition of European rule. The 1965 constitution which accompanied the declaration of independence reads as a very liberal document. It included a declaration of universal human rights, specifically articulated as being available to all persons regardless of race. Whatever the practical effect of that, one of the main combatant forces in the Bush War was philosophically communist, and unlikely to accept government on such liberal terms. As well, those combatants were unlikely to accept a government on terms which saw substantial retention of property and wealth by European settlers.
I make those observations because they inform the background to the agreement to dissolve the Colony of Southern Rhodesia and establish the new nation of Zimbabwe. Put at its crudest, there is real reason to think that without an end to the war which saw the grant of independence, the turmoil in Rhodesia would have continued for a very long time and to the disbenefit of its citizens, black and white. That in turn, would affect the assessment of compensation, where there are legal bases to recover any.
As to the legal questions raised, the reference to grants in the 1921 constitution being in consideration of payments made by the settlers invites a discussion as to whether any contractual obligation arose. Since the Crown Proceedings Act 1947, it has been possible under English law to sue the crown for breach of contract, whereas before it had been necessary to pursue the more arcane procedure of a petition of right. The problem is that, closely analysed, the promise in the 1923 constitution had nothing to do with the grant of land rights, so the bargain identified, if it was enforceable, would be of no assistance.
There are other problems. Any such action would now be time barred. More fundamentally, the circumstances do not give rise to any contract in any event. The Letters Patent were an Order by the King in Council. That Order was made under legislative authority. The UK Parliament always retained, as a matter of constitutional principle, the capacity to change the law as and when it saw fit (see R (Jackson) v Attorney General  1 AC 262 at 274). No contract could be regarded as fettering that absolute right.
The fact that any such fetter was impossible would tell against the conclusion, on an objective basis, that the parties intended to contract at all.
Any other action at law or in equity will have to confront the same obstacle of parliamentary sovereignty. The fact that the acts of the Government in facilitating the creation of the new State were exercises by it of power granted by the parliament tells against, not only the intervention of equity, but also against the conclusions that any equitable duty was imposed on the Government or that any equitable interest enured to the land owners of 1923.
I should add finally that I have considered whether a case could be mounted for compensation on the basis that the legislative and executive acts to which I have referred constituted the Government’s expropriating the assets of the colonists of Southern Rhodesia.
There are cases in which government action to destroy property rights has been held to require compensation. The best known is the decision of the House of Lords in Burmah Oil Co Limited v Lord Advocate  AC 75. In that case, during World War 2, the senior British Officer in Burma ordered the destruction of oil fields owned by the Burmah Oil Company as British forces retreated, so as to deny resources to the enemy.
The House of Lords held that the company was entitled to compensation because the damage had been done without parliamentary authority, but on the authority of the King, in whose name the military officer had been acting. The right to wage war remained within the ever-narrowing scope of the royal prerogative so that the damage was done lawfully, but in circumstances where compensation was payable.
Of course, the distinction from this case is obvious: the UK Government acted with parliamentary authority.
For these reasons, I have come to the conclusion, as disappointing as that will be to you, that there is no basis upon which compensation might be sought, either at law or in equity.
Nicholas Ferrett QC Chambers
20 May 2020