Kauluma and Others v Cabinet for Interim Government of South Africa and Others (137/88) [1988] ZASCA 138 (8 November 1988)

Kauluma and Others v Cabinet for Interim Government of South Africa and Others (137/88) [1988] ZASCA 138 (8 November 1988)

The Court held that the Administrator-General was vested with full or plenary legislative powers by virtue of Proclamation 181 of 1977, as authorised by section 38 of the South West Africa Constitution Act. The inclusion of exemptions in Orders AG 26 of 1978 and AG 50 of 1979 did not render them ultra vires, as such exemptions were intended to mitigate the harshness of absolute prohibitions and did not exceed the scope of the enabling provisions. The Orders were not invalid on grounds of unreasonableness or vagueness, as legislation enacted under plenary powers cannot be impugned on such grounds. The appeal was dismissed, and the validity of the Orders and the relevant sections of the...

Citation
[1988] ZASCA 138
Parties
Appellant: James Hamupanda Kauluma; Appellant: Bonafatius Haushiku; Appellant: Kleofas Dumeni; Appellant: The Anglican Diocese of Namibia; Appellant: The Roman Catholic Church Diocese of Windhoek; Appellant: The Evangelical Lutheran Church in Namibia; Respondent: The Cabinet for the Interim Government of South West Africa; Respondent: The Minister of Defence; Respondent: The Administrator-General of South West Africa
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
8 November 1988
Case Number
137/88
Procedural Posture
Civil Appeal / Appeal From Full Bench Judgment of the Supreme Court of South West Africa
Outcome
Appeal dismissed with costs, including costs of two counsel.
Judges
Joubert, Hefer, Vivier, Eksteen, Viljoen
Legal Topics
Delegation of Legislative Power, Ultra Vires, Security Measures, Curfew Orders
Constitutional Law Administrative Law Delegation of Legislative Power Ultra Vires Security Measures Curfew Orders

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 4 Authorities cited 10 Party arguments 2
Sign in to unlock

Parties

James Hamupanda Kauluma

Appellant

Bonafatius Haushiku

Appellant

Kleofas Dumeni

Appellant

The Anglican Diocese of Namibia

Appellant

The Roman Catholic Church Diocese of Windhoek

Appellant

The Evangelical Lutheran Church in Namibia

Appellant

The Cabinet for the Interim Government of South West Africa

Respondent

The Minister of Defence

Respondent

The Administrator-General of South West Africa

Respondent

Procedural Posture

Civil Appeal / Appeal From Full Bench Judgment of the Supreme Court of South West Africa

Legal Issues

  1. 1 Whether section 3(1)(a)(v) and (vi) of Proclamation AG 9 of 1977 and Orders AG 26 of 1978 and AG 50 of 1979 are invalid and of no force and effect.
  2. 2 Whether the Administrator-General possessed full or plenary legislative powers or merely subordinate powers.
  3. 3 Whether the Orders exceeded the empowering provisions and were ultra vires.

Ratio Decidendi

The Court held that the Administrator-General was vested with full or plenary legislative powers by virtue of Proclamation 181 of 1977, as authorised by section 38 of the South West Africa Constitution Act. The inclusion of exemptions in Orders AG 26 of 1978 and AG 50 of 1979 did not render them ultra vires, as such exemptions were intended to mitigate the harshness of absolute prohibitions and did not exceed the scope of the enabling provisions. The Orders were not invalid on grounds of unreasonableness or vagueness, as legislation enacted under plenary powers cannot be impugned on such grounds. The appeal was dismissed, and the validity of the Orders and the relevant sections of the...

Court Disposition

Appeal dismissed with costs, including costs of two counsel.

Orders

  • The appeal is dismissed with costs, including the costs of two counsel.