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
- ↑ 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).)
- ↑ 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…”