Page:NCGLE v Minister of Home Affairs.djvu/71

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Ackermann J

Setting the remedial starting point in this manner maintains respect for the legislature’s authority to participate in the remedial decision; the potential for subsequent legislative review ‘vitiates any objection that the Supreme Court, in fashioning interstitial rules, violates separation of powers principles vis-a-vis Congress.’ Indeed, employing the norm-based model not only will better execute the judiciary’s proper remedial function, but it also will enrich the legislature’s contribution by enhancing its subsequent deliberative process. When selecting a particular remedy according to this model, a court necessarily will discuss candidly the source and strength of the constitutional preference expressed by relevant inchoate norms. This discussion will inform the ensuing legislative deliberations and generate normative claims for leaving the court’s starting point undisturbed; the legislature therefore is more likely to take account of both constitutional values and policy preferences when formulating its ultimate remedial response.”[1][Footnotes omitted]

[73]Having concluded that it is permissible in terms of our Constitution for this Court to read words into a statute to remedy unconstitutionality, it is necessary to summarise the principles which should guide the court in deciding when such an order is appropriate. In developing such principles, it is important that the particular needs of our Constitution and its remedial requirements be constantly borne in mind.

[74]The severance of words from a statutory provision and reading words into the provision are closely related remedial powers of the Court. In deciding whether words should be severed from a provision or whether words should be read into one, a court pays careful attention first, to the need to ensure that the provision which results from severance or reading words into a statute


  1. Above n 97 at 1204–5.

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