Page:Du Toit v Minister of Welfare.djvu/27

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Skweyiya AJ

preferable to have statutory guidelines and procedures governing the situation, there is no reason why existing procedures could not be used in appropriately adapted form.

[37]The absence of statutory regulation concerning the protection of children in cases where same-sex adoptive parents break up, is not sufficient to render the limitations of the constitutional rights identified in this case justifiable. In the circumstances, then, I conclude that the limitations of the rights to equality, dignity and the paramountcy of the best interests of children in cases concerning them are not justifiable.


Remedy

[38]In concluding that the impugned provisions are inconsistent with the Constitution and to that extent invalid, I am now required to consider a remedy that is not only appropriate[1] but also just and equitable.[2] Applicants submit that in the present case, appropriate relief demands not


  1. See section 38 of the Constitution which provides that a court “may grant appropriate relief” to anyone alleging that a right in the Bill of Rights has been infringed or threatened. See also Pretoria City Council v Walker 1998 (2) SA 363 (CC); 1998 (3) BCLR 257 (CC) at para 95; and Fose v Minister of Safety and Security 1997 (3) SA 786 (CC); 1997 (7) BCLR 851 (CC) at paras 18, 19, and 69. (These cases dealt with the comparable provision in the interim Constitution, namely, section 7(4).)
  2. Section 172(1)(b) states that―
    “(1) When deciding a constitutional matter within its power, a court―
    (2) may make any order that is just and equitable…”
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