MOKGORO J
“A Bill assented to and signed by the President becomes an Act of
Parliament, must be published promptly, and takes effect when published or
on a date determined in terms of the Act.”
The Welfare Laws Amendment Act has been signed by the President and is
therefore an Act of Parliament within the meaning of section 81 of the
Constitution.
In terms of section 172(2)(a) a court may make an order
concerning the constitutional validity of an Act of Parliament. Thus, the fact
that section 4B(b)(ii) has not yet been brought into force should not remove it
from the jurisdiction of this Court to determine its constitutionality. This is
similar to the position in Canada91 and the United States where a provision can
also be challenged if it has not yet been brought into force. 92
[91] Similarly to section 3(c) prior to amendment, section 4B(b)(ii) as it
appears in section 3 of the Welfare Laws Amendment Act is inconsistent with
the Constitution only because it excludes permanent residents from the right of
access to social security. Because this Court has yet to consider whether it can
assess the constitutionality of a provision that has yet to be brought into force,
the question of which remedies can be granted in these circumstances has also
not been considered. Whether words can be read into such a provision was not
raised nor argued before us. However, having found that reading in the curing
91
In National Citizens’ Coalition Inc v Attorney-General for Canada (1985) 11 DLR (4d) 481 the
Supreme Court of Canada considered the constitutionality of certain provisions of the Canada Elections
Act, even though the law had not yet come into force.
92
Commonwealth of Pennsylvania v West Virginia 262 US 553, 593 (1923); Tribe American
Constitutional Law Vol 1 3 ed (Foundation Press, 2000) at 337.
56
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