The Court’s obligation to provide appropriate relief, must be read together with section 172(1)(b) which requires the Court to make an order which is just and equitable.
The other consideration a court must keep in mind, is the principle of the separation of powers and, flowing therefrom, the deference it owes to the legislature in devising a remedy for a breach of the Constitution in any particular case. It is not possible to formulate in general terms what such deference must embrace, for this depends on the facts and circumstances of each case. In essence, however, it involves restraint by the courts in not trespassing onto that part of the legislative field which has been reserved by the Constitution, and for good reason, to the legislature. Whether, and to what extent, a court may interfere with the language of a statute will depend ultimately on the correct construction to be placed on the Constitution as applied to the legislation and facts involved in each case.
I am persuaded by Mr Trengove’s submission that, as far as deference to the legislature is concerned, there is in principle no difference between a court rendering a statutory provision constitutional by removing the offending part by actual or notional severance, or by reading words into a statutory provision. In both cases the parliamentary enactment, as expressed in a statutory provision, is being altered by the order of a court. In the one case by excision and in
- Executive Council, Western Cape Legislature, and Others v President of the Republic of South Africa and Others 1995 (10) BCLR 1289 (CC); 1995 (4) SA 877 (CC) at paras 99–100.