272 THE EXECUTIVE GOVERNMENT [paRrT II 
they acted under the instructions of such officials or in good 
faith. But the Imperial Government allowed the act 
partly because it was not desirable to allow the régime of 
martial law to continue in the Colony, and partly because 
the Ministry were not willing to withdraw martial law unless 
the act came into force and protected them from suit.! 
The proclamation by the Natal Government in 1906 of 
martial law, and its maintenance in 1907 and 1908 despite 
the absence for much of the time of any obvious necessity 
for the system, was much criticized in England and even in 
South Africa. Fortunately the matter was not complicated 
to any serious extent by the fact of any misuse of the powers 
which the Government thus possessed, and the question 
can be considered as practically one of constitutional law. 
In the first place, it was asked whether a Governor could pro- 
claim martial law when as a matter of fact there was no actual 
war being waged in the Colony. The answer would appear 
to be that it would be difficult to declare that any such 
action was illegal ; any action might be illegal, but hardly 
the proclamation. Again, it was suggested that there was 
no possibility of martial law existing if there were no war. 
The argument seems fairly sound, but obviously it must be 
left to the Courts to decide as a matter of fact whether or 
not there is war. It appears very clearly from the cases of 
Marais? and van Reenen 3 that the Colonial Courts have no 
right to interfere if there is war being waged ; but it rests 
for the Court to decide if war is being waged ; the only way of 
preventing it so deciding is by force. The whole position is 
admirably laid down by the judgement of the Privy Council 
in the case of Tilonko’s appeal for special leave to appeal 
from a judgement of the court-martial sitting at Pieter- 
maritzburg, which was declined on November 2, 1906, for 
the grounds set out in the following judgement :— 4 
This is an application for special leave to appeal to His 
Majesty in Council. It is desirable to call attention to that 
! Parl. Pap., Cd. 3247, pp. 36, 92-4. 2 [1902] A. C. 109. 
* [1904] A. C. 114. Cf. the Natal case, Msolo and Guana v. Rez, Cd. 
3247, pp. 8, 9: 26 N. L. R. 421, 4 119071 A. C. 93.