Page:NCGLE v Minister of Home Affairs.djvu/67

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Ackermann J

the other by addition.

[68]This chance difference cannot by itself establish a difference in principle. The only relevant enquiry is what the consequences of such an order are and whether they constitute an unconstitutional intrusion into the domain of the legislature. Any other conclusion would lead to the absurdity that the granting of a remedy would depend on the fortuitous circumstance of the form in which the legislature chose to enact the provision in question. A legislature could, for example, extend certain benefits to life-partners generally and exclude same-sex life partners by way of express exception. In such case there would be no objection to declaring the exception invalid, where a court was satisfied that such severance was, on application of whatever the appropriate test might be, constitutionally justified in relation to the legislature. It would be absurd to deny the reading in remedy, where it was equally constitutionally justified in relation to the legislature, simply because of its form.

[69]There is nothing in the Constitution to suggest that form must be placed above substance in a way that would result in so glaring an anomaly. The supremacy clause, section 2, does not enact that “words” inconsistent with the Constitution are invalid but rather that inconsistent “law” is. Similarly section 172(1)(a) obliges a competent court to declare that “any law … that is inconsistent with the Constitution is invalid to the extent of its inconsistency” and not “any words” or “any words in any law”. The same conclusion regarding the nature and permissibility of reading in as a constitutional remedy was reached by the Canadian Supreme Court in the leading case of Schachter v Canada.[1]

  1. (1992) 93 DLR (4th) 1 per Lamer CJC for the Court at 12 h to 13 h.