17 It follows implicitly that A where the common law deviates from the spirit, purport and objects of the Bill of Rights the courts have an obligation to develop it by removing that deviation.  Under the IC the circumstances in which the common law could be developed by this Court was a complex issue. Du Plessis v De Klerk Gardener v Whitaker 18 However, under the Constitution there B can be no question that the obligation to develop the common law with due regard to the spirit, purport and objects of the Bill of Rights is an obligation which falls on all of our courts including this Court.  In this case the High Court and the SCA were requested to develop the common law, not on a constitutional basis, but in the light C of the unusual nature of the applicant's cause of action. The common law, especially in the field of delictual liability, has constantly required development. Minister van Polisie v Ewels Administrateur, Natal v Trust Bank van Afrika Bpk Marais v Richard en 'n Ander Pakendorf en Andere v De Flamingh Schultz v Butt 19 Where a court develops the common law, the provisions of s 39(2) of the Constitution oblige D it to have regard to the spirit, purport and objects of the Bill of Rights.  In exercising their powers to develop the common law, Judges should be mindful of the fact that the major engine for law reform should be the Legislature and not the Judiciary. In this regard it is worth repeating the dictum of Iacobucci J in E R v Salituro , 20 which was cited by Kentridge AJ in Du Plessis v De Klerk : 21 'Judges can and should adapt the common law to reflect the changing social, moral and economic fabric of the country. Judges should not be quick to perpetuate rules whose social foundation has long since disappeared. Nonetheless there are significant constraints on the power of the Judiciary to change the law. . . . In a F constitutional democracy such as ours it is the Legislature and not the courts which has the major responsibility for law reform. . . . The Judiciary should confine itself to those incremental changes which are necessary to keep the common law in step with the dynamic and evolving fabric of our society.' Under our Constitution the duty cast upon Judges is different in degree to that which the Canadian Charter of Rights cast upon Canadian G Judges. In South Africa, the IC brought into operation, in one fell swoop, a completely new and different set of legal norms. S v Makwanyane and Another per 22 In these circumstances 2001 (4) SA p955 ACKERMANN ET GOLDSTONE JJ the courts must remain vigilant and should not hesitate to ensure that the common law A
is developed to reflect the spirit, purport and objects of the Bill of Rights. We would add, too, that this duty upon Judges arises in respect both of the civil and criminal law, whether or not the parties in any particular case request the Court to develop the common law under s 39(2).
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- Common Law, High Court, DELICT CASE LAW