Van Heerden AJ
qualify for the benefits conferred by law on “spouses”, and if so, the length of such a transitional period are pre-eminently legislative decisions. This kind of decision ought to be taken by Parliament when it enacts the legislation contemplated in the Fourie case, and ought not to be anticipated by this Court. It is clearly the task of the legislature to enact legislation that deals with the whole gamut of different types of marital and non-marital domestic partnerships in a sufficiently detailed and comprehensive manner. The primary responsibility of this Court in the present matter is to cure the existing and historical unconstitutionality of section 1(1) of the Act, the fulfilment of which responsibility clearly requires the reading-in ordered by the High Court.
Appropriate relief—retrospectivity
[32] The Starke sisters contend that, if this Court declares section 1(1) of the Act to be unconstitutional and also finds that the remedy of reading-in is appropriate, then the Court should limit the retrospectivity of the order of constitutional invalidity in terms of section 172(1)(b)(i) of the Constitution so that it has only prospective effect (ie that it applies only to the estates of persons who die after the date of the order).
[33] Citing S v Ntsele[1] in support of the contention that questions of retrospectivity often depend on factors in respect of which evidence is necessary, the Starke sisters argue that the only evidence that was adduced concerning the issue of retrospectivity
- ↑ 1997 (2) SACR 740 (CC); 1997 (11) BCLR 1543 (CC).
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