SKWEYIYA J [212] Under section 172(2)(a) of the Constitution, any declaration of constitutional invalidity must be confirmed by this Court to have any force. It seems to me that section 172(2)(a), properly construed, does not compel this Court to entertain an application for confirmation in relation to provisions entirely irrelevant to the facts of the underlying case. [213] In Ordinary Court Martial,2 Langa CJ noted that— “section 172(2) does not require this Court in all circumstances to determine matters brought to it under that subsection. At least where the provision declared invalid by the High Court has subsequently been repealed by an Act of Parliament, the Court has a discretion to decide whether or not it should deal with the matter. In this regard, the Court should consider whether any order it may make will have any practical effect either on the parties or on others.” In my view, therefore, once a declaration of constitutional invalidity is made by a High Court and referred to this Court for confirmation, this Court can either pronounce upon the constitutionality of impugned provisions, or refuse to confirm the order without reaching the merits of the provisions. This Court has a discretion which it should exercise judiciously.3 To find otherwise would effectively be to cede control over this aspect of our jurisdiction to lower courts. 2 President, Ordinary Court Martial, and Others v Freedom of Expression Institute and Others [1999] ZACC 10; 1999 (4) SA 682 (CC); 1999 (11) BCLR 1219 (CC) at para 16. See also, Khosa and Others v Minister of Social Development and Others; Mahlaule and Another v Minister of Social Development and Others [2004] ZACC 11; 2004 (6) SA 505 (CC); 2004 (6) BCLR 569 (CC) at para 32. 3 The existence of a discretion in this regard is recognised by Ngcobo J at [60] and [68] above. 108