question of retrospectivity and that these concerns had not been addressed by the order made by the High Court. This notwithstanding, the Minister did not see fit to oppose Mr Gory’s application to this Court for confirmation of, inter alia, paragraph 3 of the High Court order dealing with retrospectivity. To my mind, something more substantive is required when a state official is called upon to deal with the constitutionality of a statutory provision falling under his or her administration and with the formulation of an appropriate remedy in the event that such provision is held to be constitutionally invalid is under consideration by a court.
[65] The State is under an ongoing constitutional obligation to “respect, protect, promote and fulfil the rights in the Bill of Rights”[1] by ensuring (inter alia) that legislation which violates constitutional rights is amended or replaced. Despite this obligation, and despite dicta of this Court to the effect that comprehensive legislation accommodating same-sex life partnerships in a constitutionally acceptable manner is necessary,[2] such legislation has not yet been forthcoming. Members of the gay and lesbian community have continued to have to approach the courts to challenge legislation violating their constitutional rights and, in this way, to achieve piecemeal reform of the law. This is illustrated yet again by the present proceedings. In the final analysis, it is the State which is responsible for section 1(1) of the Act still remaining on the statute books in its unconstitutional form. The estate is a small one, but the principle involved is important. The effect of ordering Mr Gory, Mr Brooks’ parents
- ↑ Section 7(2) of the Constitution.
- ↑ See J and Another v Director General, Department of Home Affairs, and Others above n 25 at paras 23 and 25; Minister of Home Affairs and Another v Fourie and Others above n 9 at paras 58 and 116.
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