[40]It is precisely this role that the Bill of Rights envisages must be fulfilled, and which it entrusts to the judiciary. As set out earlier (para 3 above), s 8(3) of provides that in order to give effect to a right in the Bill of Rights a court must—subject to limitation—‘apply, or if necessary develop, the common law to the extent that legislation does not give effect to that right’. Section 8(3) envisages just the situation this appeal presents—that legislation to give effect to a fundamental right is absent. In this circumstance, the Constitution deliberately assigns an imperative role to the court. Subject to limitation, it is obliged to develop the common law appropriately. And this role is particularly suited to the judiciary, since the common law and the need for its incremental development are matters with which lawyers and judges are concerned daily.
[41]In this case the equality and dignity provisions of the Bill of Rights require us to develop the common law. This is because legislation ‘does not give effect’ to the rights of same-sex couples discussed above. In such a situation the incremental development that the Bill of Rights envisages is entrusted to the courts. It will be rarely, if ever, that an order pursuant to such incremental development can or should be subjected to suspension.
