MOKGORO J
words offers the most appropriate remedy in this matter, I can see no reason
why this Court should be precluded from also reading in the appropriate words
into section 4B(b)(ii). Section 172(1), which empowers courts to declare laws
to be inconsistent with the Constitution, does not distinguish between laws
which have been brought into force and those which have not. Once a matter is
properly before this Court, there should be no bar to the just and equitable
remedies that can be granted, so long as this Court is ever mindful of its role in
relation to Parliament. In the case of a provision that has yet to be brought into
force the legislative process is complete and we have a duly enacted Act of
Parliament before us. In the consideration of a precise remedy, aimed at
respecting the role of the legislature, there seems to be no material difference
between this Court’s power to read words into such a provision, and its power
in respect of provisions that have been brought into force.
[92]
This Court has held that any order relating to the constitutionality of law
or conduct must have a practical effect.93 In the present matter, unlike in the
cases of a challenge to repealed legislation94 or where there is no longer a live
controversy between the parties,95 an order in respect of section 4B(b)(ii) will
have a practical effect, although the effect will be delayed. Parliament has
approved the provision, the President must bring it into force96 and at that point
93
President, Ordinary Court Martial above n 17 at paras 16-8; Independent Electoral Commission v
Langeberg Municipality above n 36 at para 11.
94
See President, Ordinary Court Martial above n 17.
95
See Independent Electoral Commission v Langeberg Municipality above n 36.
57
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