MOKGORO J
[72]
On the other hand, if we apply a blue pencil to each and every noun form and transitive
verb that presents overbreadth problems, we effectively write a new provision that bears only
accidental resemblance to that enacted by Parliament. If, as appears to be the case, the scheme
behind the statute was to impose a comprehensive scheme of censorship to give effect to a
particular moral, cultural and political world-view,108 it hardly does justice to the “main object”
thereof for this Court to pare it down to prohibit only that discrete set of sexually-oriented
expressions that this Court believes may constitutionally be restricted.109
[73]
For this Court to attempt that textual surgery would entail it departing fundamentally from
its assigned role under our Constitution. It is trite but true that our role is to review, rather than
to re-draft, legislation. This Court has already had occasion to caution against judicial arrogation
of an essentially legislative function in the guise of severance. In Coetzee v Government of the
Republic of South Africa; Matiso v. Commanding Officer, Port Elizabeth Prison, Kriegler, J.,
noted that
In order to [excise only offending provisions] . . . this Court would have to engage in the details
of law-making, a constitutional activity given to the legislatures. 110
108
See para 11-12 supra. Although, as noted supra, invoking the legislative history in interpreting a statute in the
first instance is problematic, the weight of the objections to use of such history is significantly diminished when
we come to consider severance, and are called upon to consider whether the main object of the statute would be
served by proposed textual surgery.
109
See Kauesa v Minister of Home Affairs 1995 (11) BCLR 1540 (NmS) 1558 (declining to sever and read down
overbroad regulation restricting freedom of speech, in light of fact that regulation was invalid in numerous
respects, and that the proposed remedies would require the Court to “guess the intention of the lawgiver.”) (per
Dumbutshena, J.); R.M.D. Chamarbaugwalla v The Union of India, [1957] S.C.R. 930, 951 (“Even when the
provisions which are valid are distinct and separate from those which are invalid, if they all form part of a single
scheme which is intended to be operative as a whole . . . the invalidity of a part will result in the failure of the
whole.”)
110
1995 (10) BCLR 1382 (CC) 1393, para 17. See also MAWU v State President of the Republic of South Africa
1986 (4) SA 358 (D) 367 (“If [a clean] amputation cannot be performed, it is not for the Court to redraft the
legislation in an acceptable form. If severance is not possible, the bad then infects what might otherwise have been
good, and it is all bad” (per Didcott J.); Schlaich, Das Bundesverfassungsgericht (1994) (3d) 353 (pointing out
41
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