MOKGORO J
confirmed by this Court.9 To enable it to deal with the matter, this Court needs
to know a judge’s reasons for making an order and the provisions of the
Constitution which he or she relied on in doing so.9 This Court was denied this
benefit in the present case. An order declaring a provision of a statute to be
invalid deals with an important constitutional matter and has far-reaching
implications.10 Such an order should only be made after careful consideration
and reasons for the decision should always be given.
[11] Because the applicants challenged the constitutionality of section
4B(b)(ii) of the Act as amended by the Welfare Laws Amendment Act, the
order of the High Court was directed at that section. Technically, because that
section has yet to be brought into force, it is incorrect to refer to the provision
in that way. Until promulgation the section is situated in section 3 of the
Welfare Laws Amendment Act and it is preferable, therefore, to refer to it as
that part of section 3 which is to introduce section 4B(b)(ii) into the Act. For
the sake of convenience, however, this judgment will refer to the impugned
section as section 4B(b)(ii), as it appears in section 3 of the Welfare Laws
Amendment Act.
9
See section 172(2) read with 167(5) of the Constitution.
9
Dawood and Another v Minister of Home Affairs and Others, Shalabi and Another v Minister of
Home Affairs and Others, Thomas and Another v Minister of Home Affairs and Others 2000 (3) SA
936 (CC); 2000 (8) BCLR 837 (CC) at para 17.
10
Zantsi v Council of State, Ciskei and Others 1995 (4) SA 615 (CC); 1995 (10) BCLR 1424 (CC) at
para 5.
9