supplementary relief where it is clear that without such relief, the rights of persons
with visual and print disabilities will once again be violated.
Therefore,
precautionary measures should be infused in its order.
In a unanimous judgment penned by Mhlantla J (with Madlanga ADCJ, Kollapen J,
Mathopo J, Rogers J, Seegobin AJ, Theron J, Tolmay AJ and Tshiqi J concurring)
the Court held that the matter was urgent and that its jurisdiction is engaged, as the
matter concerns the infringement of the rights of visually and print impaired
persons, and that this Court is the only court with the power to supplement its own
orders.
The Court held that the failure to enact the CAB within 24 months did in fact create
a legal gap, and reverted to the position before this Court’s original order.
Therefore, the matter requires a careful balance of the immediate need for protection
against the necessity of ensuring constitutionally compliant legislation which is
appropriate and satisfactory to both Parliament and the President.
Due to the lapsing of the suspension period, no extension can be granted. However,
this Court is empowered to order just and equitable relief if justice so demands, as
long as it does not revive statutory provisions that have been declared
constitutionally invalid and where such declaration has taken effect. The Court in
Ex parte Minister of Home Affairs outlined the circumstances under which this
Court can order just and equitable relief to provide legal certainty, and relied on the
approach set out in its jurisprudence on extensions where this Court considered the
nature of the constitutional defects, the harm caused by the failure to pass remedial
legislation, and the remedies proposed by the parties.
First, the Court considered the legal framework and held that the constitutional
defect did not require the Court to strike down a specific clause in the CAB, but
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