O’REGAN J and SACHS J
[128] It is our view that these considerations are as valid in South Africa as they are in Canada.
In Fose79 and National Coalition for Gay and Lesbian Equality (Immigration case)80 this Court
stressed the importance of forging new tools and shaping innovative remedies, if needs be, to
achieve the goal of effectively vindicating entrenched rights. While as a general rule the Court
would hesitate to keep alive, pending rectification by Parliament, a provision which
unconstitutionally imposed penal sanctions, we believe in the present case the interests of all
concerned, particularly those of the appellants who brought the present matter as a test case,
would best be served by facilitating a reasoned and comprehensive regulation of the situation by
Parliament, as requested by counsel for the state. The short-term price for the appellants is the
continuation of the present unsatisfactory state of affairs. In the longer term, however, the goal
of eliminating unfair discrimination is far more likely to be achieved in an effective manner if the
Legislature is encouraged to look at the matter in a comprehensive and integrated way rather
than just to tinker with one unacceptable detail. We accordingly propose that the declaration of
invalidity of section 20(1)(aA) be suspended for a period of 30 months to enable Parliament to
correct the defect. The effect of this would be to confirm the order of invalidity made in the
High Court, but to suspend its operation for 30 months. This in turn would require that all the
convictions in the Magistrates’ Court stand.
The order
[129] We have read sections 20(1)(aA), 2, 3(b) and (c) of the Act purposively so that the
79
Fose v Minister of Safety and Security 1997 (3) SA 786 (CC); 1997 (7) BCLR 851 (CC).
80
National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others 2000
(2) SA 1 (CC); 2000 (1) BCLR 39 (CC).
86
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