Page:Fourie v Minister of Home Affairs (SCA).djvu/31

Rh The reasoning in J seems to me to apply with even greater force where the court’s order does not touch on legislation at all, but develops the common law. Legislation is the province of Parliament. If granting the remedy of ‘reading in’ does not intrude on the legislative domain, then development of the common law in accordance with the Constitution—the particular responsibility of the judiciary—does so even less.

The reference in the judgment of Farlam JA  to the recent decision of the Constitutional Court in Zondi v Member of the Executive Council for Traditional and Local Government Affairs (15 October 2004) does not, with respect, take the matter any further. Zondi re-emphasises three clear strands of the remedial jurisprudence of the Constitutional Court. The first is that the court ‘should be slow to make those choices which are primarily choices suitable for the Legislature’. The second is that, for this reason, the court frequently suspends an order of statutory invalidity—as it did in Zondi—in order to give the legislature the opportunity to fulfil its particular function of matching legislation with constitutional obligation.

What my colleague's allusion to Zondi leaves out of account is that the case itself illustrates a third, equally vital, strand of