MOKGORO J
[86]
For the reasons given above, we do not confirm the order of the High
Court and we find section 3(c), prior to amendment by the Welfare Laws
Amendment Act, to be unconstitutional. It was the submission of the
respondents that we find sections 4(b)(ii) and 4B(b)(ii) of the Act, as amended
by the Welfare Laws Amendment Act, unconstitutional and that we strike them
both down, coupled with an order suspending invalidity. Section 4B(b)(ii) as it
appears in section 3 of the Welfare Laws Amendment Act is not yet in force.
Although this new section will become part of the Act when it is promulgated,
it has been passed as part of the Welfare Laws Amendment Act. Thus, the
High Court’s determination of the impugned section as a provision of the
Social Assistance Act was technically not in order. Since the impugned section
was before the High Court it is necessary for it to be considered in these
confirmation proceedings. However, in view of the fact that the new provision
is currently contained in the Welfare Laws Amendment Act, making, in the
strict sense, that Act the subject of constitutional challenge, the order regarding
this issue should be directed at the Welfare Laws Amendment Act and not the
Social Assistance Act. For the same reasons as in the case of section 3(c), we
do not confirm the order of the High Court and also find section 4(b)(ii) to be
unconstitutional. The constitutionality of section 4B(b)(ii), as it appears in
section 3 of the Welfare Laws Amendment Act is discussed below.
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