Page:Fourie v Minister of Home Affairs (SCA).djvu/22

Rh husband)’. The statute empowers the Minister however to approve religious formulae that differ from the default formula.

Farlam JA suggests that we can change even the default formula by a process of innovative and ‘updating’ statutory interpretation by reading ‘wife (or husband)’ in this provision as ‘spouse’. I cannot agree. There are two principal reasons. The first is that I think this would go radically further than the process of statutory interpretation can appropriately countenance. The second is that in my view the particular words, because of their nature and the role the statute assigns to them, are not susceptible to the suggested interpretative process.

First, as Ackermann J explained in the Home Affairs case, there is ‘a clear distinction’ between interpreting legislation in conformity with the Constitution and its values, and granting the constitutional remedies of reading in or severance. The two processes are ‘fundamentally different’: ‘The first process, being an interpretative one, is limited to what the text is reasonably capable of meaning. The latter can only take place after the statutory provision in question, notwithstanding the application of all legitimate interpretative aids, is found to be constitutionally invalid.’