[20] In terms of section 172(1)(b) of the Constitution, a court which has declared a statutory provision to be unconstitutional and invalid may make any order that is just and equitable, including “an order limiting the retrospective effect of the declaration of invalidity” and “an order suspending the declaration of invalidity for any period and on any conditions, to allow the competent authority to correct the defect”.
Appropriate relief—“reading-in”
[21] The Starke sisters argue that reading words into section 1(1) as ordered by the High Court is not the appropriate remedy in this case. With reference to the principles which should guide a court in deciding when an order of reading-in is appropriate, as articulated by this Court in National Coalition for Gay and Lesbian Equality v Minister of Home Affairs,[1] they emphasise the need to ensure “that the result achieved would interfere with the laws adopted by the Legislature as little as possible”[2] and that –
“In deciding to read words into a statute, a Court should also bear in mind that it will not be appropriate to read words in, unless in so doing a Court can define with sufficient precision how the statute ought to be extended in order to comply with the Constitution. Moreover, when reading in (as when severing) a Court should endeavour to be as faithful as possible to the legislative scheme within the constraints of the Constitution.”[3]
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