must conclude that this is an instance where the common law deviates from the spirit, purport and objects of the Bill of Rights and it should accordingly be developed, if this is possible and appropriate, so as to remove the deviation.
[101]As the Constitutional Court held in Carmichele v Minister of Safety and Security,[1] where the common law is deficient as regards the spirit, purport and objects of the Bill of Rights in terms of s 39(2) of the Constitution, the Courts are under a general obligation to develop the common law appropriately. The Constitutional Court pointed out[2] that ‘in exercising their powers to develop the common law, Judges should be mindful of the fact that the major engine for law reform should be the Legislature and not the Judiciary’. It proceeded to cite with approval a dictum by Iacobucci J in a decision of the Canadian Supreme Court, R v Salituro,[3] which contained the following:
‘In a constitutional democracy such as ours it is the Legislature and not the courts which has the major responsibility for law reform. … The Judiciary should confine itself to those incremental changes which are necessary to keep the common law in step with the dynamic and evolving fabric of our society.’
