Van Heerden AJ
above, the operation of the doctrine of objective constitutional invalidity is subject to the possibility that the court making the declaration of invalidity may, in the interests of justice and equity, limit the retrospective effect of such declaration in terms of section 172(1)(b)(i) of the Constitution.[1]
[40] This Court has consistently emphasised that, where a litigant does establish that an infringement of an entrenched right has occurred, he or she should as far as possible be given effective relief so that the right in question is properly vindicated.[2] In this case, on the factual findings of the High Court, which are not challenged before us, Mr Gory and Mr Brooks were permanent same-sex life partners who had undertaken reciprocal duties of support. Mr Gory has established that the failure of section 1(1) of the Act to include him and others similarly situated to him within its ambit does violate his rights to equality and dignity. Bearing in mind the significant pre-existing disadvantage and vulnerability of same-sex life partners resulting from “the long history in our country and abroad of marginalisation and persecution of gays and lesbians”,[3] it would not in my view be just and equitable to deny Mr Gory any effective constitutional relief by making the declaration of invalidity of section 1(1) fully prospective, despite the effect of such declaration of invalidity on the interests of third parties (such as Mr Brooks’ parents).[4]
- ↑ See S v Bhulwana; S v Gwadiso 1996 (1) SA 388 (CC); 1995 (12) BCLR 1579 (CC) at para 32; S v Ntsele above n 36 at para 14; see further Currie & De Waal above n 48 at 206–209; Rautenbach above n 48 para 1A98.5 at 1A-202–1A-203 and the other authorities there cited.
- ↑ See for example Fose v Minister of Safety and Security above n 16 at para 69.
- ↑ Fourie above n 9 at para 59; see also National Coalition for Gay and Lesbian Equality v Minister of Home Affairs above n 20 at paras 42–54.
- ↑ See the Bhe case above n 37 at para 126.
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