MOKGORO J
[69]
Both “reading down” and severance are permissible remedies under the Constitution.
The document provides that the Court’s declaration of invalidity shall be limited to the extent of
the inconsistency between the challenged statute and the Constitution. 102 In addition section 4(1)
provides a clear textual basis for severance, and also, arguably, for “reading down”:
[A]ny law or act inconsistent with [the Constitution] shall . . . be of no force or effect to the
extent of the inconsistency. (emphasis added).103
I will consider first the possibility of severance, before turning to the reading down option.
102
§35(2)
103
Cf. Zimbabwe Township Developers (Pty) Ltd. v Lou’s Shoes (Pty) Ltd. 1984 (2) SA 778 (ZS) 783A-D. The
constitutional principles embodied in sections 35(2) and 232(3) are a codification of an interpretative rule that
derives from the Roman Law (In ambigua voce legis ea potius accipienda est significatio, quae vitio caret), and
an established part of South African law. E.g., R v Pickering 1911 TPD 1054, 1058.
39
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