Page:NCGLE v Minister of Justice.djvu/79



Rh {| by the Constitution are differently formulated. Under the interim Constitution the provisions of section 98(6)(a) and (b) were dominant, the Constitutional Court being empowered to order otherwise than as provided in these paragraphs “in the interests of justice and good government”. Under the 1996 Constitution the dominant provision of section 172(1)(b)(i) is to the effect that a competent court:


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The reasons why the applicants did not proceed with the relief sought in paragraphs (b) and (d) of their Notice of Motion is explained as follows in the judgment of the High Court: “[Applicants] submitted that the effect of the invalidity of the common-law crimes should be considered [in] individual cases which have not yet been finalised. The concern of the applicants in this regard was that the common-law crimes prohibited some conduct which may remain prohibited despite the Constitution. If, for example, a person has been convicted of sodomy (rather than indecent assault) for an act of ‘male

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