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Rh It was not the intention in Ntsele’s case to suggest that the tests for retrospectivity or nonretrospectivity were identical under the interim and the 1996 Constitutions. But both Bhulwana’s case and Ntsele’s case were concerned with the constitutional invalidity of reverse onus provisions in the Drug and Drug Trafficking Act 140 of 1992, and it was in this context that Kriegler J observed that the above quoted observations in Bhulwana’s case “… are directly in point here and the type of order we granted in that case is equally appropriate here.”

The interests of good government will always be an important consideration in deciding whether a proposed order under the 1996 Constitution is “just and equitable”, for justice and equity must also be evaluated from the perspective of the state and the broad interests of society generally. As in Ntsele’s case, it might ultimately be decisive as to what is just and equitable. At the same time the test under the 1996 Constitution is a broader and more flexible one, where the concept of the interests of good government is but one of many possible factors to consider.

Rh