Page:NCGLE v Minister of Home Affairs.djvu/62

Rh While appreciating the novelty and difficulty of framing an appropriate order in the circumstances of the present case, one is driven to conclude that the High Court did not, in effect, through paragraph 1 of its order, bring about the invalidity of any portion of section 25(5). This is so for two reasons. It appears clearly from its motivation for the second option (which it adopted) that it aimed, through its order, to preserve the benefits of the section for spouses and was intent on giving an order to achieve this object. This was in fact also the effect of the order, the interpretation of which is complicated by the fact that it conflates reasons for the order with its operative terms. The device of notional severance can effectively be used to render inoperative portions of a statutory provision, where it is the presence of particular provisions which is constitutionally offensive and where the scope of the provision is too extensive and hence constitutionally offensive, but the unconstitutionality cannot be cured by the severance of actual words from the provision. An order giving effect to and embodying such notional severance in the case of constitutional invalidity was made for the first time in Ferreira v Levin NO and Others; Vryenhoek and Others v Powell NO and Others. Rh