[68]We have on occasion declared statutory provisions to be constitutionally invalid, despite the fact that this has involved a complicated formulation of the extent to which a provision was inconsistent with the Constitution.[1] Yet notional partial inconsistency is not on its own sufficient to justify such a limited order of constitutional invalidity; the issue of severability has also to be addressed. In this regard Kriegler J, in Coetzee v Government of the Republic of South Africa and Others; Matiso and Others v Commanding Officer, Port Elizabeth Prison and Others, formulated the following test for the Court:
“Although severability in the context of constitutional law may often require special treatment, in the present case the trite test can properly be applied: if the good is not dependent on the bad and can be separated from it, one gives effect to the good that remains after the separation if it still gives effect to the main objective of the statute. The
- ↑ Thus in Ferreira v Levin above n 34 at para 157 the following order was made:
“1. The provisions of section 417(2)(b) of the Companies Act 1973 are, with immediate effect declared invalid, to the extent only that the words: ‘and any answer given to any such question may thereafter be used in evidence against him’
in section 417(2)(b) apply to the use of any such answer against the person who gave such answer, in criminal proceedings against such person, other than proceedings where that person stands trial on a charge relating to the administering or taking of an oath or the administering or making of an affirmation or the giving of false evidence or the making of a false statement in connection with such questions and answers or a failure to answer lawful questions fully and satisfactorily.”
