Page:NCGLE v Minister of Justice.djvu/79

by the Constitution are differently formulated. Under the interim Constitution the provisions of section 98(6)(a) and (b) were dominant, the Constitutional Court being empowered to order otherwise than as provided in these paragraphs “in the interests of justice and good government”. Under the 1996 Constitution the dominant provision of section 172(1)(b)(i) is to the effect that a competent court:

“(b)

may make any order that is just and equitable, including—

(i)

an order limiting the retrospective effect of the declaration of invalidity;”

[85]The reasons why the applicants did not proceed with the relief sought in paragraphs (b) and (d) of their Notice of Motion^[1] is explained as follows in the judgment of the High Court:

“[Applicants] submitted that the effect of the invalidity of the common-law crimes should be considered [in] individual cases which have not yet been finalised. The concern of the applicants in this regard was that the common-law crimes prohibited some conduct which may remain prohibited despite the Constitution. If, for example, a person has been convicted of sodomy (rather than indecent assault) for an act of ‘male

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1. The full relief initially sought in the Notice of Motion is quoted in paragraph 4 above. Paragraphs (b) and (d) read as follows:

   “(b)		an order invalidating any conviction for the offence of sodomy if that conviction related to conduct committed after 27 April 1994 and either an appeal from, or review of the relevant judgment, is pending or the time for noting an appeal from that judgment has not yet expired;
   (d)		an order invalidating any conviction for the offence of commission of an unnatural sexual act between men if that conviction related to conduct committed after 27 April 1994 and either an appeal from, or review of the relevant judgment, is pending or the time for noting an appeal from that judgment has not yet expired”.