Page:NCGLE v Minister of Home Affairs.djvu/82

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Ackermann J

permit and who has entered into a marriage with a person who is permanently and lawfully resident in the Republic, less than two years prior to the date of his or her application, refuse to authorize such a permit unless the committee is satisfied that such marriage was not contracted for the purpose of evading any provision of this Act.”

Should the provisions of section 25(5) be extended to include permanent same-sex life partners, it would likewise be permissible for Parliament and the executive to take reasonable steps to prevent persons falsely purporting to be in same-sex life partnerships from evading the provisions of the Act.

[86]Against the background of what has been said above I am satisfied that the constitutional defect in section 25(5) can be cured with sufficient precision by reading in, after the word “spouse”, the following words: “or partner, in a permanent same-sex life partnership,” and that it should indeed be cured in this manner. Permanent in this context means an established intention of the parties to cohabit with one another permanently. In my view, such a reading in, seen in the light of what has been said above concerning the legislature’s right to fine-tune the section as so extended and other provisions that may be relevant thereto, does not intrude impermissibly upon the domain of the legislature.

[87]It is necessary to emphasise again that the Court need only provide the reading in remedy for excluded same-sex life partners, because it is only in relation to them that the Court was called upon to decide, and only in relation to them that it has been decided above, that their exclusion from the provisions of section 25(5) is constitutionally invalid. Apart from those cases where the Constitution makes express provision to the contrary, a court decides constitutional disputes and makes, where appropriate, orders of constitutional invalidity, only on the issues