In any event the benefits conferred on spouses express a clear policy of the government to protect and enhance the family life of spouses. This policy extends back at least 69 years, for the provisions of section 3(1)(b)(v) of the Immigration Quota Act 8 of 1930 provided a comparable benefit, although less fully and in a more discriminatory manner. The indications are therefore strong that, had Parliament considered the most appropriate way for it to remedy the unconstitutionality of section 25(5), it would have chosen a remedy which did not deprive spouses of their current benefits under the section. This view is fortified by the fact that the government is, in other areas, giving effect to its legislative obligations under the equality clause in respect of same-sex partners. All these considerations indicate that, if reasonably possible, a striking down order should not be the remedy resorted to.
- The relevant part of section 3(1) reads:
“Subject to the provisions of sub-section (2) of this section it shall be competent for the board in any calender year to permit in its discretion any person born in any particular country not specified in the Schedule to this Act to enter the Union for permanent residence therein, notwithstanding that the maximum number of persons born in that country which may, under section one, be permitted to enter the Union, have already been granted permission to enter the Union during that year: Provided―
(a) … (b) that every person so admitted― (i) is of good character; and (ii) is in the opinion of the board likely to become readily assimilated with the inhabitants of the Union and to become a desirable citizen of the Union within a reasonable period after his entry into the Union; and (iii) is not likely to be harmful to the economic, or industrial welfare of the Union; and (iv) does not and is, in the opinion of the board, not likely to pursue a profession, occupation, trade or calling in which, in the opinion of the board, a sufficient number of persons is already engaged in the Union to meet the requirements of the inhabitants of the Union; or (v) is the wife or a child under twenty-one years of age, or a destitute or aged parent or grandparent of a person permanently and lawfully resident in the Union who is able and undertakes to maintain him or her.” [Emphasis supplied]
- See the statutes referred to in n 41 above.