Ackermann J
| (a) | In regard to a declaration of constitutional invalidity of a law or a provision thereof, section 98(6) of the interim Constitution regulated the consequences of such a declaration differently, depending on whether the law was in existence at the time the interim Constitution came into effect or whether it was passed thereafter. The 1996 Constitution draws no such distinction. | |
| (b) | The effect of a declaration of invalidity (subject to the Constitutional Court’s power to order otherwise) is dealt with more extensively under the interim Constitution in subparagraphs (a) and (b) of section 98(6). Under the 1996 Constitution, and in the absence of a contrary order by a competent court, nothing more is provided other than that it has retrospective effect. I infer this from the fact that the power of a competent court to make an order in this regard under section 172(1)(b)(i) is to limit “the retrospective effect of the order of constitutional invalidity,” interpreted against the background of the principle of the objective theory of constitutional invalidity adopted in Ferreira v Levin[1], namely, that a pre-existing law which is inconsistent with the Constitution becomes invalid the moment the relevant provisions of the Constitution come into effect[2].
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| (c) | The power of a competent court to make an order differing from that provided for |
- ↑ Above n 34 at paras 26–29, in particular at para 28.
- ↑ This is of course subject to the express power granted to a competent court under section 172(1)(b)(ii) to make “an order suspending the declaration of invalidity for any period and on any conditions, to allow the competent authority to correct the defect.”
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