Application alleging that exclusion of non-citizens from social grant entitlements was unconstitutional on basis of Sections 27, 28 9, 10 and 11 South African Constitution ; unfair discrimination ; reasonableness ; general limitations clause
The applicants were permanent residents in South Africa. They challenged legislative provisions, which limited entitlement to social grants for the aged to South African citizens, and would prevent children of non-South African citizens in the same position as the applicants from claiming any of the childcare grants available to South African children (regardless of the citizenship-status of the children themselves).
The Court held, amongst other things, that the Constitution gave “everyone” the right to have access to social security – not merely citizens – and that “everyone” would include those residing in the country legally. Mokgoro J, writing for the majority, highlighted the interdependence and interconnectedness of rights and observed that the right to equality was implicit in the Section 27 entitlement of everyone to have access to social security. She held that when other constitutional rights are implicated by a socio-economic right, compliance with those other implicated rights will be important in evaluating whether the measures taken by the state in fulfilling the socio-economic right are reasonable within the meaning of s.27(2). The Court stated that, due to their position as people who have become part of South African society and made their homes in South Africa, the exclusion of permanent residents from the legislative scheme amounted to unfair discrimination in violation of s.9(3). Applying the “reasonableness test” in s.27(2) the Court found the scheme's exclusion of permanent residents to be unreasonable, stating that the importance of providing access to social assistance to all who live permanently in South Africa, as well as the impact upon life and dignity that a denial of such access would have, far outweighed the financial and immigration considerations on which the State relied.
With regard to s.28, the Court confirmed that the exclusion of children from access to these grants amounted to unfair discrimination on the basis of their parents' nationality and that "the denial of support in such circumstances to children in need trenches upon their rights under section 28(1)(c)" The Court ordered that the relevant legislative provisions be read as though the words “or permanent resident” appeared after “citizen”.
Keywords: Khosa & Ors v Minister of Social Development & Ors. Cited as: 2004(6) BCLR 569, Older, Person, Right
The potential impact of this case was huge. The Legal Resources Centre who were responsible for bringing the case estimated that the judgment would impact on at least 250 000 people in South Africa. (LRC annual report 2004). The judgment has largely been given effect to by the State.
The legislation at issue in Khosa has since been repealed and replaced by the Social Assistance Act of 2004. The new Act does not incorporate the Constitutional Court's ‘reading in' of “permanent residents” in Khosa and thus ostensibly reverts to the situation prior to the case being brought. However, the Act also incorporates a ministerial discretion which may be employed to bring permanent residents within the protection of the Act. It remains to see whether this will occur.
One of the primary issues in the case was whether to adjudicate the ‘reasonableness' of government measures as part of the enquiry into the internal limitation contained in section 27(2) [HYPERLINK TO PROVISION NEEDED], or whether the enquiry should revolve around section 36 [HYPERLINK TO PROVISION NEEDED], the general clause which governs the limitation of rights under the Constitution. Because the court had heard no argument on the point it declined to decide the matter. The majority held, however, that even if it was assumed that a different threshold of reasonableness applied in ss 26 and 27 to that used in s 36, they were satisfied that the exclusion of permanent residents from the scheme was ‘neither reasonable nor justifiable within the meaning of section 36'. Thus, it is still unclear whether s.27 and s.36 ‘reasonableness' are identical and how exactly s.36 operates in relation to socio-economic rights under the Constitution.
For the applicants: Nick de Villiers, 5th Floor, Centenary House, Bureau Lane, PRETORIA, 0002 PO Box 7614, PRETORIA, 0001 Tel: (012) 323-7673 Fax: (012) 321-6680 Docex: 94 Legal Resources Centre Pretoria. For the respondents: MTK Moerane SC SA Nathi instructed by the State Attorney, Cape Town