Page:NCGLE v Minister of Home Affairs.djvu/59

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Ackermann J

their omission from the provisions of section 25(5) was never an issue in the case nor was any argument addressed thereon. The Court does not reach the latter issue in this case and I express no view thereon, leaving it completely open. Nor does the Court in this case reach the issue of whether, or to what extent, the law ought to give formal institutional recognition to same-sex partnerships and this issue is similarly left open.

The appropriate remedy

[61]The High Court was faced with the difficult task of devising an appropriate remedy consequent upon its finding section 25(5) to be constitutionally invalid because of what it omitted.

[62]As far as the declaration of invalidity is concerned the High Court considered that three options were open to it. The first was to remedy the constitutional invalidity of section 25(5) by introducing (“reading in”) words into the section in such a way that its provisions also applied to persons in same-sex life partnerships. The High Court decided against such remedy as an appropriate one, principally because it was of the view that it was not possible to define with a sufficient degree of precision the words that had to be inserted in section 25(5) in order for it to comply with the Constitution.[1] The second was postulated as follows:

“Were a declaration of invalidity to provide that the section is inconsistent with the Constitution to the extent that it confers an exclusive benefit on spouses and hence discriminates on the grounds of sexual orientation, the rest of the section could remain valid. Thus spouses as defined in terms of the Act at present would continue to enjoy a

  1. Above n 1 at 294 B – 295 G.