Makhasa v Minister of Law and Order, Lebowa Government (185/87) [1988] ZASCA 64; [1988] 2 All SA 540 (A) (27 May 1988)

Makhasa v Minister of Law and Order, Lebowa Government (185/87) [1988] ZASCA 64; [1988] 2 All SA 540 (A) (27 May 1988)

The Supreme Court of Appeal held that the Lebowa Indemnity Act, No. 3 of 1986, was ultra vires the legislative powers of the Lebowa Legislative Assembly. The powers conferred by the National States Constitution Act and its First Schedule did not include, either expressly or by necessary implication, the authority to enact indemnity legislation of the nature and scope of the Lebowa Indemnity Act. The Act went far beyond what could be considered incidental or ancillary to the powers to establish and regulate departments of state, appoint and control public servants, or protect life and property. Its effect was to deprive individuals of accrued rights and to free the state and its officials...

Citation
[1988] ZASCA 64
Parties
Appellant: Thembi Makhasa; Respondent: Minister of Law and Order, Lebowa Government
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
27 May 1988
Case Number
185/87
Procedural Posture
Civil Appeal / Appeal From Transvaal Provincial Division
Outcome
Appeal upheld. The Lebowa Indemnity Act declared ultra vires. Judgment for the appellant.
Judges
Rabie, Jansen, Corbett, Van Heerden, Grosskopf
Legal Topics
Ultra Vires, Indemnity Legislation, Legislative Competence, Original Legislative Powers
Constitutional Law Civil Procedure Ultra Vires Indemnity Legislation Legislative Competence Original Legislative Powers

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 16 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Parties

Thembi Makhasa

Appellant

Minister of Law and Order, Lebowa Government

Respondent

Procedural Posture

Civil Appeal / Appeal From Transvaal Provincial Division

Legal Issues

  1. 1 Whether the Lebowa Indemnity Act, No. 3 of 1986, is valid and intra vires the legislative powers of the Lebowa Legislative Assembly.
  2. 2 Whether the Act provides a complete defence to the appellant's claim for damages arising from police assault.
  3. 3 Whether the legislative assembly's powers under the National States Constitution Act include the power to enact indemnity legislation of this nature.

Ratio Decidendi

The Supreme Court of Appeal held that the Lebowa Indemnity Act, No. 3 of 1986, was ultra vires the legislative powers of the Lebowa Legislative Assembly. The powers conferred by the National States Constitution Act and its First Schedule did not include, either expressly or by necessary implication, the authority to enact indemnity legislation of the nature and scope of the Lebowa Indemnity Act. The Act went far beyond what could be considered incidental or ancillary to the powers to establish and regulate departments of state, appoint and control public servants, or protect life and property. Its effect was to deprive individuals of accrued rights and to free the state and its officials...

Court Disposition

Appeal upheld. The Lebowa Indemnity Act declared ultra vires. Judgment for the appellant.

Orders

  • The appeal succeeds with costs, including the costs of two counsel and, where applicable, the costs of applying for leave to appeal in the court a quo.
  • The order of the court a quo is set aside and replaced with an order that the defendant is to pay the plaintiff an amount of R1,200.00 with costs, including the costs of two counsel.