Section 9 of the Constitution — unfair discrimination — section 10 fails the Harksen test ORDER On application for confirmation of an order of constitutional invalidity granted by the Full Court of the High Court of South Africa, Eastern Cape Division, Grahamstown (hearing an appeal from the High Court of South Africa, Eastern Cape Division, Grahamstown): 1. The declaration of constitutional invalidity of section 10 of the Births and Deaths Registration Act 51 of 1992 (Act) by the Full Court of the High Court of South Africa, Eastern Cape Division, Grahamstown, is confirmed in the terms set out in paragraphs (a) and (b): (a) It is declared that section 10 of the Act is invalid in its entirety and consequently severed from the Act. (b) The proviso in section 9(2) of the Act stating that the provision is “subject to the provisions of section 10” is severed from section 9(2) by reason of the declaration of constitutional invalidity of section 10. 2. The declaration of constitutional invalidity referred to in paragraphs (a) and (b) takes effect from the date of this order. 3. The first respondent must pay the costs of the applicant in this Court, including the costs of two counsel. JUDGMENT VICTOR AJ (Jafta J, Khampepe J, Madlanga J, Majiedt J, Mhlantla J, Theron J and Tshiqi J concurring): 2