NGCOBO J
[138] Section 172(2)(a) of the Constitution authorises a high court to “make
an order concerning the constitutional validity of an Act of Parliament”. The
Welfare Laws Amendment Act, which introduces section 4B(b)(ii) is “an Act
of Parliament.” In terms of section 81 of the Constitution, “[a] Bill assented to
and signed by the President becomes an Act of Parliament”. That it has not
taken effect matters not. Accordingly, I agree with the main judgment that this
Court has jurisdiction to determine the constitutional validity of section
4B(b)(ii).
[139] Once it is accepted that this Court has jurisdiction to consider the
constitutional validity of section 4B(b)(ii), it follows that this Court has the
power not only to declare that provision unconstitutional, but also to grant “any
order that is just and equitable” under section 172(1) of the Constitution. I
agree with the main judgment that the appropriate remedy would be to read the
words “permanent resident” into section 4B(b)(ii). The same goes for section
4(b)(ii).
[140] In the result, I concur in the conclusion reached by Mokgoro J in
relation to sections 4(b)(ii) and 4B(b)(ii) and in the order that she proposes in
that regard. However, I am unable to concur in the result reached by Mokgoro
J in relation to section 3(c) and in the order that she proposes in that regard. In
my view, the order of invalidity in relation to section 3(c) should not be
confirmed. I would make no order for costs.
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