Page:Fourie v Minister of Home Affairs (SCA).djvu/30

Rh This approach is borne out by the Constitutional Court's approach in J v Director General, Department of Home Affairs. There the Court declared a statutory provision to be inconsistent with the Constitution and afforded a remedy that ‘read in’ appropriate expansionary words. The Home Affairs department—also a respondent in this appeal—asked the Court to suspend the declaration of invalidity, as it asks us to suspend the order developing the common law here. The basis on which it sought suspension there was identical to that it advances here, namely the prospect of legislation following a pending South African Law Reform Commission investigation.

In that case the Constitutional Court refused to suspend. It held that ‘Where the appropriate remedy is reading in words in order to cure the constitutional invalidity of a statutory provision, it is difficult to think of an occasion when it would be appropriate to suspend such an order’: ‘This is so because the effect of reading in is to cure a constitutional deficiency in the impugned legislation. If reading in words does not cure the unconstitutionality, it will ordinarily not be an appropriate remedy. Where the unconstitutionality is cured, there would usually be no reason to deprive the applicants or any other persons of the benefit of such an order by suspending it.’