Page:Fourie v Minister of Home Affairs (SCA).djvu/106

Rh to suspend an order developing the common law, when the problem under consideration can also be solved by other methods which only Parliament can employ and where the ultimate decision as to which method should be employed depends to a substantial degree on policy considerations.

If this Court were to plump for the only remedy open to it, it is likely, if this Court's order is not suspended, that many same-sex couples will get married. This factor will clearly make it difficult, if not impossible, for Parliament to decide to adopt one of the other options set out in the Law Reform Commission’s report.

There is no case of which I am aware where an order developing the common law has been suspended, but in a number of cases where statutory provisions were declared invalid the Constitutional Court has ordered that a statutory provision declared invalid was to remain in force for a specified period to enable Parliament to correct the defect in the provision. Under the Interim Constitution such orders were made under s 98(5) thereof which provided that the Constitutional Court might ‘in the interests of justice and good government’ require Parliament or any other competent authority, within a period specified by the Court, to correct the defect in a provision declared to be invalid, which provision was to remain in force pending correction or the expiry of