NGCOBO J [34] The supremacy clause of the Constitution declares that the Constitution is the supreme law; any law or conduct that is inconsistent with it is invalid.20 Like other branches of government, the judiciary must uphold and protect the Constitution.21 And section 8(1) of the Constitution provides that the Bill of Rights is binding on the judiciary as well as on the legislature and the executive. In addition, section 39(2) provides that when interpreting any legislation, every court must promote the spirit, purport and objects of the Bill of Rights. In the light of these provisions of the Constitution, a court cannot enforce a law that is inconsistent with the Constitution. It follows that a court may raise, of its own accord, the unconstitutionality of a law that it is called upon to enforce. [35] In Carmichele, we considered the obligation of courts to develop the common law and concluded that “where the common law deviates from the spirit, purport and objects of the Bill of Rights the courts have an obligation to develop it by removing that deviation.”22 In addition, we also held that the duty of judges to develop the common law consistently with the Bill of Rights “arises in respect of both the civil and the criminal law, whether or not the parties in any particular case request the court to develop the common law under section 39(2).”23 And we added that “there might be circumstances where a court is obliged to raise the matter on its own and require 20 Section 2 of the Constitution. 21 Section 165(2) read with item 6 of Schedule 2 of the Constitution. 22 Carmichele v Minister of Safety and Security (Centre for Applied Legal Studies Intervening) [2001] ZACC 22; 2001 (4) SA 938 (CC); 2001 (10) BCLR 995 (CC) at para 33. 23 Id at para 36. 18