The result must be consistent with the Constitution**: The modified legislation, after reading-in or severance, must fully comply with the Bill of Rights and other constitutional provisions.
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Here are the requirements laid down in National Coalition for Gay and Lesbian Equality v Minister of Home Affairs 2000 (2) SA 1 (CC) before reading-in or severance could take place:
The result must be consistent with the Constitution: The modified legislation, after reading-in or severance, must fully comply with the Bill of Rights and other constitutional provisions.
The alteration must be as minimal as possible: The court should make the least intrusive changes necessary to remedy the unconstitutionality, respecting the legislative intent as much as possible.
The meaning and purpose of the statute must remain substantially the same: The core objective and overall scheme of the legislation should not be fundamentally altered by the court's intervention.
The court must be able to define with sufficient precision how the statute is to be modified: The court needs to be clear and specific about the exact wording to be added (reading-in) or removed (severance) to avoid ambiguity or further legal uncertainty.
The court must be satisfied that the order will not have an undue impact on other provisions or on third parties: The remedy should not create new constitutional problems or unfairly prejudice individuals or groups not directly involved in the litigation.
The court should not usurp the function of the legislature: While correcting unconstitutional provisions, the court must avoid overstepping its judicial role and effectively rewriting legislation, which is the prerogative of Parliament.
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