Page:Gory v Kolver (CC).djvu/33

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Van Heerden AJ

of unconstitutionality and are accordingly before this Court as part of the confirmation proceedings.”[1]

[50] If one accepts this reasoning, then Mr Kolver might not require our leave to appeal against any of the ancillary orders contained in paragraphs 4 to 11 of the High Court order, but might have a right of appeal pursuant to section 172(2)(d) of the Constitution. In terms of this section –

“[a]ny person or organ of state with a sufficient interest may appeal, or apply, directly to the Constitutional Court to confirm or vary an order of constitutional invalidity by a court in terms of this subsection.”

It could be argued that the phrase “order of constitutional invalidity” should be read broadly to include any ancillary order that is dependent upon the declaration of constitutional invalidity and that was made pursuant to such declaration in the interests of justice and equity. However, in view of the conclusion reached in paragraph [48] above, it is not necessary to decide this question for the purposes of the present proceedings and, in the absence of any argument on this point, I would prefer not to do so. I am satisfied that, once this Court decides to confirm the declaration of invalidity in terms of section 172(2)(a) of the Constitution, then it should logically also re-examine all the ancillary orders made by the High Court, including the orders forming the subject of Mr Kolver’s application for leave to appeal, to determine whether these orders are just and equitable.

  1. 2000 (3) SA 936 (CC); 2000 (8) BCLR 837 (CC) at para 18.