MOKGORO J in the High Court had been irregular and that its order should be set aside, alternatively that because of the absence of material evidence on the record, the matter should be referred back to the High Court to be dealt with there. They tendered an affidavit deposed to by the Acting Director-General of the Department of Social Development (as he then was) which stated in relevant part: “6.4 During November 2002, the respondents received an opinion from the state law advisors. In short the state law advisors were of the opinion, prima facie, that the requirement that only South African citizens are obliged to receive grants in terms of section 3(c) and 4(b)(ii) of the Social Assistance Act no. 59 of 1992 (“the Act”) constitutes unfair discrimination and is in conflict with section 9 of the Constitution. 6.5 However, in regard to the limitation clause, the state law advisors were of the opinion that only a competent court can determine this question. 6.6 After much deliberation in the department, a decision was taken not to oppose the matter. It has now transpired that since we are dealing with an application to declare the provisions of the Act unconstitutional, it was necessary that the respondents should have opposed the matter in the High Court.” [17] Counsel for the respondents contended that there was a duty on the High Court judge flowing from the Constitution and the doctrine of separation of powers, to call for evidence on the availability of resources on the part of the respondents and to give a reasoned judgment for the finding of invalidity. As 12