O’REGAN J and SACHS J
[112] If the racist and authoritarian intentions of past legislators were to be taken as paramount
and invariable in determining the validity of legislation today, many statutes would not have
survived the advent of constitutional democracy. In response to this problem, the interim
Constitution envisaged a principle of interpretation designed to promote principled legislative
continuity rather than radical legislative rupture. Section 35 provides that:
“(2)
No law which limits any of the rights entrenched in this Chapter, shall be
constitutionally invalid solely by reason of the fact that the wording used prima
facie exceeds the limits imposed in this Chapter, provided such a law is
reasonably capable of a more restricted interpretation which does not exceed
such limits, in which event such law shall be construed as having a meaning in
accordance with the said more restricted interpretation.
(3)
In the interpretation of any law and the application and development of the
common law and customary law, a court shall have due regard to the spirit,
purport and objects of this Chapter.”
This means that we must look at the wording of the Act in its post-1994 rather than its
original 1988 setting, and see if its language is reasonably capable of bearing a meaning
which is compatible with the spirit, purport and objects of the Bill of Rights. The mere
fact that the original legislative purpose of a statute might have been incompatible with
current constitutional standards, does not deprive it of the capacity to serve a legitimate
governmental purpose today,71 unless its express language and intent is, as in the Big M
71
See Lawrence above n 17 at para 157. See too Brown v Board of Education 347 US 483 at 492-3 where the
Court stated: “In approaching this problem, we cannot turn the clock back to 1868 when the Amendment
was adopted, or even to 1896 when Plessy v. Fergusson was written. We must consider public education in
the light of its full development and its present place in American life throughout the Nation. Only in this
way can it be determined if segregation in public schools deprives these plaintiffs of the equal protection of
77
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