185/87
IN THE SUPREME COURT OF SOUTH AFRICA (APPELLATE DIVISION)
In the matter between:
THEMBI MAKHASA	Appellant
and
MINISTER OF LAW AND ORDER
LEBOWA GOVERNMENT	Respondent
CORAM: RABIE, ACJ JANSEN,CORBETT,VAN HEERDEN,GROSSKOPF, JJA
HEARD: 16 May 1988
DELIVERED: 27 May 1988
JUDGMENT GROSSKOPF, JA
The question for decision in this appeal is whether the Lebowa Indemnity Act, no. 3 of 1986, is valid. In the
Transvaal	

2 Transvaal Provincial Division CURLEWIS J held that it was, and accordingly gave judgment in favour of the respondent. With the leave of the Court a guo the matter now comes on appeal before us. This issue arose pursuant to a claim
As a result of admissions in the respondent's plea and of an agreement reached during the pre-trial conference, all the facts were common cause. They may be summarized as follows.
The appellant is an adult woman. On 21 July 1985 members of the Lebowa police force wrongly and intentionally assaulted and belittled her. In doing so, they injured and impaired her dignity and self-esteem and caused her certain
bodily 	

3 bodily injuries. As a consequence she sustained damages in the amount of Rl 200,00. At all relevant times the said members of the Lebowa police force were servants of the re-spondent and were acting within the course and scope of
It was common cause in the Court a quo as well as on appeal that, but for the provisions of the Lebowa Indem-nity Act, the appellant was entitled by virtue of the ad-
the respondent. The issue between the parties was expressed
as follows in the pre-trial minute:
"3. In defence of Plaintiff's claim, the Defendant relies solely on the provisions of the Lebowa Indemnity Act, No. 3 of 1986.

4 . The issue which remains in dispute between the parties and which is to be tried by the above Honourable Court shall be confined solely to the question of law being whether:
 4.1	The Lebowa Indemnity Act, Act No. 3 of 1986 promulgated in the Official Gazette, Lebowa, No. 918 in Notice No. 1 of 1987 dated the 13th February 1987, has the force of law or not, and
 4.2	in particular, in enacting the said Act, the Lebowa Legislative Assembly acted intra vires its legislative powers or not?"
It was also expressly stared that if the Act was intra
vires it provided a complete defence to the appellant's
claim. In particular the appellant abandoned her right to
rebut the presumptions in sec. 1(3) of the Act (quoted here-
under) as well as her right to impugn the validity of the
Act on any ground other than that the legislature acted
uitra 	

5
ultra vires in purporting to pass it.
It is necessary at the outset to set out the terms
of the Lebowa Indemnity Act. They are as follows:
"ACT To indemnify the government, its officers and all
other persons acting under its or their authority in respect of acts, announcements, statements or information advised, commanded, ordered, directed, done, made or published in good faith for the pre-vention or suppression of internal disorder or the maintenance or restoration of the good order or public safety or essential services or the preser-vation of life or property in any part of Lebowa; and to provide for matters connected therewith.
BE IT ENACTED by the Lebowa Legislative Assembly, as follows:-
1.(1) No civil or criminal proceedings shall be instituted or continued in any court of law against -
(a)	the Government of Lebowa; or
 (b)	any member of the Cabinet of Lebowa; or
 (c)	any officer or member of the Lebowa Police Force; or
(d)	any person employed in the public service
of 	

6
(e) any person acting under the authority or by the direction or with the approval of any member, officer or person mentioned in paragraph (b), (c) or (d),
by reason of any act, announcemert, statement or information advised, commanded, ordered, directed,
the period commencing on the first day of June 1985 and ending on the eleventh day of June 1986, with intent to prevent or suppress intarnal disorder in any part of Lebowa or to maintain or restore good order or public safety or essential services therein or to preserve life or property therein.
(2)	Every such proceeding which may have been
brought or commenced prior to the coming into
operation of this Act, shall lapse and shall be deemed void.
(3)	If in any proceedings instituted against the
Government or against any member, officer or person
mentioned in subsection (1)(b), (c), (d) or (e),
the question arises whether my act, announcement,
statement or information advised, commanded, ordered,
directed......

7
directed, done, made or published by him was ad-vised, commanded, ordered, directed, done, made or published by him in good faith with an intent mentioned in the subsection (1), it shall be pre-sumed, until the contrary is proved, that such act, announcement, statement or information was advised, commanded, ordered, directed, done, made or pu-blished by him in good faith with such an intent.
(4) The provisions of this section shall apply also in respect of any default by any member, of-ficer or person mentioned in subsection (1)(b), (c), (d) or (e) to comply with any provision of a law or regulation in connection with advising, commanding, ordering, directing or doing any such act aforesaid.
2. This Act shall be called the Lebowa Indemnity
Act, 1986."
Lebowa is a self-governing territory created in
terms of the National States Constitution Act, no. 21 of
1971. Its legislative powers are defined by that Act, both
affirmatively ...

8
powers is contained in section 30(1) which, in so far as it is immediately relevant, authorizes the legislative assembly of a self-governing territory "to make laws not inconsistent with this Act with recard to all matters referred to in Schedule 1" (section 30(1)(a)). These powers are, however, limited by section 4, which excluces certain subjects from the competence of legislative assemblies established under the Act. Amongst these subjects are the amendment repeal or substitution of the Act itself (section 4(j)).
The main question for decision is whether the Lebowa Indemnity Act falls under any of the matters referred to in the first schedule. However, before I deal with the specific
items 	

9 items in the Schedule relied upon by the respondent, I propose discussing the principles to be applied in interpret-ing the powers granted to the Lebowa Legislative Assembly. In argument before us it was common cause that these powers
This distinction had its origin in British colonial history. The Queen v. Burah (1878) 3 App. Cas. 889 (P.C.) concerned an Act of the Indian legislature, at that time the Governor-
Lieutenant-Governor of Bengal. The majority of the High Court of India had decided that this grant was invalid, re-lying on the principle of delegatus non delegare potest. This view was rejected by the Privy Council: LORD
SELBORNE 	

10
the following at p. 904:
"But their Lordships are of the opinion that the doctrine of the majority of the Court is erroneous, and that it rests upon a mistaken view of the powers of the Indian Legislature, and indeed of
Indian Legislature has powers expressly limited by the Act of the Imperial Parliament which created it, and it can, of course, do nothing beyond the limits which circumscribe these powers. But, when acting within those limits,it is not in any sense an agent or delegate of the Imperial Parliament, but has, and was intended to have, plenary powers
of legislation,as large and of the same nature
as those of Parliament itself. "
The same principles were later applied to the provinces of
Canada (vide Hodge v. the Queen (1883) 9 App. Cas. 117 (P.C).
See also Dixon, Devolucion in Constitucional Law, 1984
TSAR 26 at 26, and Baxter, Administrative Law, at 491).
Hodge's.....

11
Hodge's case was followed in South Africa with respect to the legislative powers of provincial councils in Middelburg Municipality v. Gertzen 1914 AD 544. In that case, at p. 550, INNES CJ described a Canadian provincial legislature as
" body exercising within its juriadiosion not a delegated
but an original, authority". He pointed out that there were important differences between the Canadian constitution and our own, and that the provincial councils stood in a position
of subordination to the Union Parliament,which had no paral- 
lel in Canada. He then continued (ibid):
"But ... both bodies derive their powers from the same enactment, and restricted though the authority of our Councils may be, it is an original authority drawn from the South African Act, and not delegated
by 	

12
by the Union legislature .The constitutional
position thus created is, in some respects, unique; but I entertain no doubt that a Provincial Council is a deliberative legislative body, and that its ordinances duly passed and assented to must be classed under the category of statutes, and not of mere by-laws or regulations. They have full force of law within the Province, so long as they are not repugnant to an Act of the Union Parliament (sec. 86)."
Later he said, referring to the definition of a
provincial council's powers (at p. 552):
"The question is where to draw the line; and we shall best answer it, as it seems to me, by bearing
in mind the general principle which underlies the
position of the Council. As already pointed out, that body possesses under the South Africa Act legislative authority within its Province, but in respect of certain defined subjects only. And in deciding whether or not there has, in any par-ticular instance, been an excess of that authority, regard must be had to the maxim 'Quando lex aliquid
alicui......

13
alicui concedit, concaditur et id sine quo res ipsa esse non potest.' The principle therein embodied is of wide application, and bearing in mind the aim and scope of the South Africa Act, I think we may say that the legislative authority committed to the Council must (in the absence of manifest intent to the contrary) be taken to in-clude all powers properly required to effect the
purpose for which it was conferred"
And, at p. 552-3:
"I take it, however, that no powers would be implied which were not properly or reasonably ancillary to those expressly conferred. And it seems to me, therefore, that authority given to a Provincial
Council to make ordinances in regard to any speci-
fied subject must (in the absence of clear intent to the contrary) be taken to include such legis-lative powers as are reasonably required to carry out the objects of the enactment, that is to deal fully and effectively with the subject assigned. The limits of such reasonable requirements would, of course, fall to be decided by the Court in each particular case."
At 	

14 At the outset of his judgment (at p. 549) INNES CJ mentioned the "difficulty of laying down a comprehensive test of validity", and contented himself "with a basis of investigation sufficient for the elucidation of the particular
case before us"examining no more that "the general lines
upon which an enquiry into the validity of ... ordinances should proceed". Nevertheless, the principles enunciated by him have been consistently applied by this Court ever since, although sometimes in somewhat different language. See Johannesburg Consolidated Investment Co Ltd v. Marshalls Township Syndicate Ltd 1917 AD 662 at 666; Orange Free State Provincial Administration v. Luyt 1930 AD 394 at 400-1; R v. Dickson 1934 AD 221 at 233; Joycs & McGregor Ltd v.
Cape 	

15 Cape Provincial Administration 1946 AD 658 ac 669, 672-3; Johannesburg City Council v. Chesterfield House 1952(3) SA 808 (A) at 823 F; S v. Le Grange 1962(3) SA 498 (A) at 504 G - 505 B; Brown v. Cape Divisional Council and Another
1979(l) SA 589 (A) at 602 C; Broadacres Investments Ltd v
Hart 1979(2) SA 922 (A) at 932 B-E.
In these cases it has often been emphasized that the validity of an ordinance depends on whether it deals
with a matter which falls within the legislative competance 
of a provincial council, and not on the reasonableness or otherwise with which the council has dealt with it. Thus, in the Joyce & Mc Gregor case (supra at p. 672) SCHREINER JA said the following:
"... the 	

16
"... the principle that implied powers are not to be extended beyond what is 'properly' or 'reason-ably' 'required' or 'necessary' or 'incidental' or 'ancillary' - all these expressions are to be found in Gertzen's case (supra) and later decisions in this Court - does not permit the introduction, as it were by a side wind, of the test of reasonable-ness. ... It is the connection between the main
purpose of the power and the content of the impugend
provision that has to be considered, and once the connection is sufficiently close there is no juris-diction in the Courts to examine the wisdom or policy of the exercise of the power."
Moreover, "the tendency in interpretation is towards
liberality" and a Court will not lightly find that a provincial
council has exceeded its powers (R. v. Dickson, supra, at p. 233. See also S. v. Le Grange (supra) at p. 504 G to 505 B). The reasons given in Gertzen's case for recognizing the original authoricy of provincial councils were, apparent-
ly.......

17 ly, the following. First, INNES CJ mentioned the fact that the provincial council and parliament both derived their powers from the same extraneous source, viz., the South Africa Act, which was a British statute (ibid., p. 555). Even in 1914
this was not strictly accurate as INNES CO himself recognized 
at pp. 549-50. Apart from the legislative powers granted to provincial councils by the South African Act, certain mat-ters had been scheduled in the Financial Relations Act, 1913,
as falling within the legislative ambit of the provincial
councils if and when the Governor-General-in-Council might so decide and proclaim. In this regard INNES CJ said (at pp. 549-50):
"So that the power to make ordinances may in regard
to 	

18
to different subjects flow along different channels. It may come directiy from the South Africa Act, or through a special Union statute, or (within the limits of the Financial Relations Act) by way of a Government Proclamation. It is obvious, however, that the extent of the legislative auchority was intended to be the same in each case, and indeed par. 12(2) of the Financial Relations Act express-
ly so provides.The correct view would seem to be
that such authority is in reality always derived from the South Africa Act, even where it is the result of machinery which, though created by the statute, has been extraneously set in motion."
The fact that the South Africa Act was a British
Act was however, as stated by Banter.Administrative Law,at
p. 491, "merely an accident of history". After 1910 the powers of provincial councils were frequently amended, and the relevant sections of the South Africa Act were themselves repealed by section 120 of the Republic of South Africa Con-
stitution 	

19 stitution Act, no. 32 of 1961. Since then the legislative
powers of provincial councils were, until their abolition by
the Provincial Government Act, no. 69 of 1986, governed ex-clusively by South African statutes. It has never been, and
could not be, suggested that this resulted in any change in the
status of their legislation. The true position would appear to be that the provincial council's legislative powers were "original" because the legislatures which bestowed those powers,
being the British and South African parliaments ,wished it
so. It is interesting to note that in The Queen v. Burah (supra), which, as far as I could ascertain, contained the first authoritative recognition of the plenary powers of colonial legislatures, the source of the Indian legislature's
powers 	

20 powers was, in principle, the same as chat of provincial
councils in South Africa after 1961 - legislative powers had
been granted to the Indian legislature direct by the British Parliament, in the same way as in South Africa powers were
granted to the Provinces direct by the South African Parliament
Further reasons given by INNES CJ were that a provincial council was a "deliberative legislative body" having wide powers (ibid. p. 550). These features also,
it seems to me ,are important in so far as they bear on the
legislative intent of the parliaments which established it and which bestowed powers on it.
I turn now to consider the position of legislative assemblies of self-governing territories established under
the 	

21 the National States Constitution Act. Their legislative powers, as I have said, are granted by section 30 of the Acc read with the first schedule. In terms of section 37A of the Act the State President may from time to time by procla
mation amend this schedule ,and he has frequently done so
It would accordingly serve no purpose to compare the legis-lative competence of a legislative assembly with that pre-viously exercised by a provincial council, since both have varied over the years. Suffice it to say that, gererally speak-ing, the legislative powers of legislative assemblies would, at least, appear to be no less extensive. And in certain respects the status of a legislative assembly clearly ex-ceeds that previously enjoyed by a provincial council.
Thus 		

22
Thus legislation of the South African Parliament on any mat-
ter reserved for the legislative assembly of a self-governing
territory does not apply within that self-governing territory
or in relation to its citizens in respect of whom the legis-
lative assembly is empowered to make laws in so far as that
matter is concerned (see section 20(3) of the National States
Constitution Act). It seems to be accepted that this pro-
vision does not impose a binding restriction on the South
African Parliament - see, e.g., Baxter, op.cit., p. 133;
Ellison Kahn, Some Thoughts on the Competency of the Trans-
keian Legislative Assembly and the Sovereignty of the South
African Parliament, 1963 SALJ 473; and LAWSA, vol. 5, Con-
stitutional Law, para. 69 - but, be that as it may, it pro-
vides a strong indicacion of the light in which the South
African Parliament regarded the legislarive assemblies.
Moreover, a legislative assembly is empowered,
within....

23 within its sphere of competence, to amend or repeal any Act of Parliament (section 30(l)(b)). Provincial councils en-joyed no such powers - an ordinance was invalid if repugnant to an Act of Parliament (see section 86 of the South Africa
stitution Act (later entitled the Provincial Government Act), no. 32 of 1961). And a legislative assembly, unlike a pro-vincial council, has certain extra-territorial powers (sec-
tent of a legislative assembly's powers consequently provides a strong indication that this body was intended to have ori-ginal legislative powers.
This inference is supported by other features of the National States Constitution Act. While the Act itself
does 	

24
does not provide in detail for the composition of legis-lative assemblies but leaves this to be determined by the State President after consultation (section 2), one finds in practice that these bodies usually have a substantial
tion R 225 of 1972, sections 3 to 5. The executive govern-ment of a self-governing territory vests in a cabinet con-sisting of ministers drawn from members of the legislative
a High Court for a self-governing territory (section 34). It has its own flag, to be flown side by side with the National Flag of the Republic (section 27) and may have a national anthem (section 28). All in all, the intention clearly was
to 	 	

25 to bestow upon a self-governing territory a large degree of status and autonomy, and if this feature is considered in conjunction with the extent of legislative powers granted, there can, in my view, be no doubt that its legislature was intended to have original powers of legislation. This is also the view of the editors of Steyn, Uitleg van Wette, 5th ed., p. 293, and Du Plessis, The Interpretation of Statutes, p. 12. See also Dixon, ubi sup. at p. 34, Ellison Kahn op. cit., c. 476, and Baxter, cp. cit., pp. 190 to 193.
It is in the light of the above principles that the First Schedule to the National States Constitution Act must be interpreted to ascertain whether the Lebowa Indemnity Act falls within the powers there enumerated. The relevant features of the Lebowa Indemnity Act to which regard must
be 	

26 be had for this purpose, would appear to be the following:
1.	An indemnity is provided to the following persons,
namely, the government of Lebowa, any member of the
cabinet of Lebowa, any officer or member of the Lebowa
Police Force, any person employed in the public service
of Lebowa, and any person acting under the authority
or by the direction or with the approval of any of the aforegoing persons.
2.	These person are indemnified against civil and criminal
liability arising out of any act, announcement, state-
ment or information advised, commanded, ordered, direct-
ed, done, made, or published subject to certain condi-
tions.
3	 

27
3.	These conditions are
 (a)	that the person acted in good faith;
 (b)	that the act, etc., was performed with the in-tent to prevent or suppress internal disorder in any part of Lebowa, or to maintain or restore good order or public safety or essential services therein or to preserve life or property therein.
4.	The indemnity is given in respect of acts, etc, per-
The Act was promulgated only on 13 February 1987 and thus provided an indemnity in respect of liability, criminal and civil, which had already accrued.
It was common cause that the first schedule to the
Act 	

28
Act contained no express power authorizing legislation such
as the Lebowa Indemnity Act. The question then is, as ex-
pressed by SCHREINER JA in the above-quoted passage from the
Joyce & Mc Gregor case (supra), whether such power may be re-
garced as "properly" or "reasonably" "required" or"necessary"
or "incidental" or "ancillary" to any of the powers expressly
granted.
Mr. Van der Byl, who appeared for the respondent,
suggested that the relevant express powers were to be found in
items 21 B, 21, 1 and 18 of the Schedule read in combination.
These items set out the following matters in respect of which
a legislative assembly has power to legislate:
21.B "... the establishment, control, organization
and administration of a police force." 21. "The protection of life, persons and property
and the prevention or cruelty to animals."
1......

29 1. "The administration and control of depart-
ments established in terms of section 5(2)". (Section 5(2) provides for the establishment of departments with the approval of the State
the legislative council has the power to legislate.) 18. "The appointment, conditions of service, dis-cipline, retiremen-, discharge, and pension-ing of ... officers and employees employed in connection with the departments referred to in section 5(2)". If one takes icems 21 B, 1 and 18 together, one
finds 	

30 finds that a legislative council has authority to legislate in respect of the departments of state, and the officials comprising them, which administer the matters falling under the government of a self-governing territory. Included among these departments is the police force. It was not suggested that the normal functioning of the state machinery would ever require an indemnity act granting ex post facto indemnity of the kind with which we are dealing here. Indeed, it was common cause in argument that statutes such as the Lebowa Indemnity Act, although not unprecedented in South Africa, are highly exceptional. The Lebowa Act closely follows the terms of the South African Indemnity Acts of 1961 (Act 61 of 1961) and 1977 (Act 13 of 1977), and, like those acts, was
clearly 	

31 clearly designed to deal ex post facto with liabilities in-curred by the government and its servants during a period of public disorder. Such a statute drastically (although, for-tunately, only temporarily) alters the fundamencal relation-ship between, on the one hand, the state and its servants, and, on the other hand, the members of society generally. It not only frees the state and its servants from accounta-bility for crimes and delicts committed by them, but does so ex post facto , thereby depriving members of the public of rights which have already accrued. Its nature and effect go,in my view, far beyond what may be regarded as incidental or ancillary to the power of establishing and regulating departments of state, or appointing and control-
ling ....

32 ling public servants. I accordingly do not consider that the power to pass the Lebowa Indemnity Act was reasonably ancillary to the matters set out in items 21 B, 18 and 1 of the Schedule.
Does item 21 make any difference to this con-clusion? During argument it was suggested that this item, read together with the power to maintain a police force pur-suant to item 21 B, was sufficient to empower the passing of the Indemnity Act, at least in relation to acts committed by police officers, which is all that is in issue in the present appeal. The argument in this regard may be formulated as follows: The legislative assembly may legislate in connection with activities performed by members of the police force in
order 	

33
order to protect lives, person and property. Consequently the legislative assembly may also legislate to indemnify policemen who have committed delicts and crimes in pursuing such activities. Although not without weight, this argument musr, I think, be rejected for the reasons which follow.
In the first place, the Lebowa Indemnity Act seems to me to be much wider than is contemplated by this argument. I assume for present purposes that the Act may be severable, and therefore valid only in respect of acts committed by policemen. Even then the Act would grant in-demnities not only in respect of acts performed with intent to "preserve life or property", but also in respect of those performed"with intent bo prevent or suppress internal dis-
order 	

34
order", or"to maintain or restore good order or public safe-
ty or essential services". While some of these matters may
have a close relationship with the protection of life, persons
necessarily and property, this would not be true of all of them. Con-
sider, for example, action taken to restore essential ser-
vices.
But in my view the matter goes further than
that. The effect of the Act, as I have said, is to liberate
the state and its officials from the consequences of unlaw-
ful acts performed in terminating a period of public disorder.
The reason why governments assume extensive powers to combat
public disorder is not primarily to protect lives, persons
or property, but to protect the safety and stability of the
state 	

35
stace. Of course the safety and stability of the state also
have a bearing on the persons and property of its inhabitants,
but it is an indirect one. That the primary purpose of the Lebowa Indemnity Act was not to protect lives, persons or pro-
Much of the conduct protected by the Act may well have been
performed, with one of the requisite forms of intent, by some
of the persons mentioned, for purposes which have very little
direct relationship with the protection of lives, persons or
property. Indeed, in a sense the Act is inimical to the
protection of lives, persons and property, in that it de-
prives persons of redress for unlawful killings, assaults
or damage to property. The justification for this deprivation can only be that the Act serves a different purpose, namely the mainte-nance of order in the general public interest. This
confirms 	

36
confirms the view that the Act goes beyond what may be re-garded as merely incidental to the protection of lives, per-sons or property. And if this is the essential nature of the Acr, it does not avail the respondent to argue that the
certain unlawful acts committed by policemen, and no others. This would in effect be substituting an entirely different Act for the one which was promulgated, and would not, in my view, be justified by any theory of severability.
Mr. Van der Byl contended that, if the Lebowa Indemnity Act was ultra vires, the result would be that only the South African parliament could legislate in respect of such a matter, which would be undesirable and anomalous.
I 	

37 I do not agree. The limitation of the powers of the Lebowa Legislative Assembly necessarily entails that there are cer-tain subjects which are beyond its competence and which must be dealt with by another legislative organ. (I leave aside the question whether it must necessarily be the South African Parliament, and whether the State President might not also be competent - see section 25 of the Black Administration Act, no. 38 of 1927, and section 30(4) of the National States Constitution Act). This inevitable consequence of the di-vision of legislative powers does not seem more anomalous in the present case than in many others.
Then Mr. Van der Byl referred us to a number of indemnity provisions in provincial ordinances in support of
the 	

38
the proposition that provincial councils have commonly been considered to have the power to legislate on this topic. I do not propose analysing these provisions in detail. They all differ substantially from the Lebowa Indemniry Act. Moreover they were passed under different empowering legis-lation and, in any event, their validity has, to my know-ledge, never been tested in any court. Consequently I do not think that they are of any assistance in the present matter.
In conclusion I should state briefly where I differ from the Court a quo. The essence of the judgment of the Court a quo was that the Lebowa police had the duty to concern themselves wich internal security in Lebowa, and
that	

39 that the power to pass the Lebowa Indemnity Act was inci-dental to such duty. However, this reasoning, it seems to me, loses sight of the true question to be answered. The question is whether the power to pass the Indemnity Act was incidental to the express powers granted to the Legisla-tive Assembly. The Legislative Assembly had no express powers to legislate generally in respect of internal security, and consequently it serves no purpose to consider whether the passing of an indemnity act would have been ancillary to such power. And, for reasons which I have given, I do not think that the power to legislate in respect of a police force
has by itself, as an incident, the power to pass an indemnity act like the present.
The 	

40 Hy conclusion is accordingly that a power to pass the Lebowa Indemnity Act was not incidenral to any of the matters entrusted to the Lebowa Legislative Council by the First Schedule to the National States Constitucion Act. In ccming to this conclusion, I applied the ordinary prin-ciples laid down in Gertzen's case (supra) and the cases following thereon. I consequently do not find it necessary to express any view on a submission made by Mr. Trengove, who appeared for the appellant, that a more stringent test should be applied in the present case because, he said, the effect of the Lebowa Indemnity Act was to oust the jurisdic-tion of the Court and the power to achieve such a result should be granted in clear terms. Indeed, I express no
view 	

41 view on whether the Act does have chis result, and if it did, whether the Court a quo would have been bound to apply it. Nor is it necessary to deal with his contention that the Act is invalid by reason of its extra-territorial operation or its inconsistency with sections 4 and 23 of the National States Constitution Act. On all these matters I express no opinion. In the result the following order is made:
 1.	The appeal succeeds with costs, including the costs of two counsel, and, in so far as applicable, the costs of applying for leave to appeal in the Court a quo.
 2.	The order of the Court a quo is set aside and replaced
by the following:
The defendant is ordered to pay the plaintiff an amount
of 	

42 of Rl 200,00 with costs, including the costs of two counsel.
E M GROSSKOPF, JA
RABIE, ACJ 
VAN HEERDEN, JA