Constitutional Court remedial jurisprudence. This is the ‘important principle of constitutional adjudication that successful litigants should be awarded relief’.[1] In Dawood, that had the consequence that (a) the provisions of the statute at issue were declared invalid; (b) the order of invalidity was suspended to enable Parliament to do what was constitutionally necessary; but (c) an extensive order was also granted, requiring Home Affairs officials in the interim to act in accordance with the principles of the judgment, pending the legislative modifications.[2] In Zondi, too, an order of invalidity was issued and suspended, but extensive remedial assistance was granted.[3]
[46]In my respectful view the appellants in this case are entitled to no less. Our order developing the common law trenches on no statutory provision. Deference to the particular functions and responsibilities of the legislature does not therefore require that we suspend it. Instead, the appellants are entitled to appropriate relief. They should be awarded the benefit of a declaration regarding the common law of marriage that takes effect immediately.
- ↑ S v Bhulwana, S v Gwadiso 1996 (1) SA 388 (CC) para 32; Dawood v Minister of Home Affairs 2000 (3) SA 936 (CC) para 66, Zondi paras 124–135.
- ↑ See 2000 (3) SA 936 (CC) para 70.
- ↑ See Zondi para 135.
