ZONDI AJ
[73]
It seems to me that a proper balance can be struck by suspending a declaration
of invalidity and ordering an interim reading-in. Suspension coupled with an interim
reading-in is a remedy that does not intrude unduly into the domain of Parliament. It is
a remedy that gives recognition to the need to respect the separation of powers and in
particular the role of Parliament as the institution constitutionally entrusted with the
task of enacting legislation.60 Such a remedy will prevent uncertainty by avoiding the
piecemeal judicial amendment of legislation. It is a remedy that will allow Parliament
to conduct the thorough process of consideration and constitutionally required
consultation to properly cure the constitutional defect. This is the remedy which in my
view is just and equitable.
[74]
The third pillar of the applicants‘ objection to suspension of the declaration of
invalidity is based on the Minister‘s failure to explain what he has done to have the
constitutional defect remedied. The contention is that this Court should not suspend the
order in circumstances where the Minister has not accounted for the failure to correct
the defect in the section. While I accept that there has been a delay on the part of the
Minister to remedy the constitutional defect of the impugned provision, I do not agree
that the delay is unreasonable and that it provides a sufficient basis to not suspend the
constitutional invalidity of the order.
In the explanatory affidavit deposed to by
Mr Bassett on behalf of the Minister, the latter points out that the South African Law
Reform Commission has over the years been assisting his department with empirical
research on how best to infuse the changing norms, values and interests of society with
the pre-1994 statutory framework and its recommendations have led to the amendment
of, among others, the CPA and the enactment of SORMA. He points out further that
that a further amendment in relation to aligning section 18(h) of the CPA with the new
offences relating to the trafficking of children, and the inclusion of offences relating to
torture, are under consideration. This explanation is reasonable and it was therefore a
prudent thing for the Minister to wait for this Court‘s confirmation before taking steps
60
National Coalition for Gay and Lesbian Equality v Minister of Home Affairs [1999] ZACC 17; 2000 (2) SA 1
(CC); 2000 (1) BCLR 39 (CC) at para 66 and C v Department of Health and Social Development [2012] ZACC
1; 2012 (2) SA 208 (CC); 2012 (4) BCLR 329 (CC) at para 89.
31
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