[87]Although in argument before this Court, counsel for the applicants did not abandon the contention that only this Court has the power to make such an order, they did not vigorously pursue it. In my view the submission cannot be sustained. All courts competent to make declarations of constitutional invalidity have the power to make an appropriate order under section 172(1)(b)(i) if such order, in the circumstances of a particular case, is “just or equitable”. This was in fact so held in S v Ntsele.[1] The real issue is whether, in the circumstances of this case, an order limiting the retrospectivity of the declaration of invalidity would indeed be just and equitable, on a proper construction of that concept in the context of the section and the Constitution as a whole.
[88]To the extent that a court of first instance has this power, such court must grapple with its exercise. This is necessary because in a given case it might be necessary to receive evidence in order to decide whether, and in what manner, such power should be exercised. It is essential that the court of first instance receive and if necessary adjudicate on such evidence, and not a court of appeal or this Court on confirmation. The importance of following such a procedure has been stressed by this Court in similar
- ↑ 1997 (11) BCLR 1543 (CC) at para 12.
