Page:Du Toit v Minister of Welfare.djvu/29

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Skweyiya AJ

[39]This Court has recognised the remedy of reading into legislation wording that cures the constitutional defect as an appropriate form of relief. In National Coalition for Gay and Lesbian Equality v Minister of Home Affairs, Ackermann J held that reading in is “an appropriate form of relief under s 38 of the Constitution”.[1]

[40]During the hearing of this matter, the amicus curiae handed into Court a draft order, the terms of which proposed a variation of the relief granted by the High Court. The amicus proposed that the Court suspend a declaration of invalidity for a period of twenty-four months from the date of the order to enable Parliament to address the matter. In particular, the amicus argued that it was desirable that Parliament should provide a system of regulation of same-sex life partnerships which would ensure that the best interests of the children would be preserved in the event of the termination of such partnerships, in circumstances where the partners were joint adoptive parents of children.

[41]I have no doubt that the provision of effective protection for children upon termination of a same-sex partnership can best be cured by the passing of legislation by Parliament. However, in the interim, I am of the view that the interests of the siblings and prospective adoptive children in general can adequately be addressed by the high courts as the upper guardian of all minor children. In exercising that role, the high courts will seek to develop the constitutional standard of the best interests of the child. The flexibility of that standard will ensure that the welfare and

  1. Above n 10 at para 70. This form of relief has been used by the Constitutional Court subsequently on several occasions. See, for example, Satchwell, above n 10.