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 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The legislation at issue in Khosa has since been repealed and replaced by the Social Assistance Act of 2004.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