Page:NCGLE v Minister of Home Affairs.djvu/70

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Ackermann J

Court[1] have also made similar orders.

[72]Criticism has also been expressed of a model for remedy selection, with respect to under-inclusive provisions, which assumes that there is no constitutional norm, albeit inchoate, which can guide such selection. While it is impossible to reflect adequately, in any summary, the richness and depth of the contentions advanced in this regard by Caminker, the following passages capture important aspects of their thrust and are relevant to the present enquiry:

“… [G]iven the presence of an inchoate substantive norm and the absence of structural values obliging judicial passivity, the current model’s assumption that courts conclude their ‘essentially judicial’ role simply by mandating equal treatment through either extension or nullification is false. Though both remedies are formally adequate, one is substantively preferred; courts (at least temporarily) can further actualize constitutional norms by choosing the preferred remedy.

  1. The Court had previously declined to make such an order but in a landmark decision in November 1998 it adopted an approach which essentially constituted the reading in of words to a statute. Reported in 1999 NJW 557.