Khosa and Others v Minister of Social Development and Others; Mahlaule and Another v Minister of Social Development (CCT 13/03; CCT 12/03) [2004] ZACC 11; 2004 (6) SA 505 (CC); 2004 (6) BCLR 569 (CC) (4 March 2004)

CONSTITUTIONAL COURT OF SOUTH AFRICA

Case CCT 12/03

LOUIS KHOSA First Applicant

ELIASSE MUCAMBO MULHOVO Second Applicant

SANIA NDLOVU Third Applicant

versus

THE MINISTER OF SOCIAL DEVELOPMENT First Respondent

THE DIRECTOR-GENERAL OF SOCIAL DEVELOPMENT Second Respondent

THE MEMBER OF THE EXECUTIVE COMMITTEE FOR

HEALTH & WELFARE IN THE NORTHERN PROVINCE Third Respondent

_____________________________

Case CCT 13/03

SALETA MAHLAULE First Applicant

ALTINAH HLUNGWANA Second Applicant

versus

THE MINISTER OF SOCIAL DEVELOPMENT First Respondent

THE DIRECTOR-GENERAL OF SOCIAL DEVELOPMENT Second Respondent

THE MEMBER OF THE EXECUTIVE COMMITTEE FOR

HEALTH & WELFARE IN THE NORTHERN PROVINCE Third Respondent

Heard on : 13 and 30 May 2003

Decided on : 4 March 2004

JUDGMENT

MOKGORO J:

[1] These two cases concern a constitutional challenge to certain provisions of the Social Assistance Act 59 of 1992 (the Act). They were referred to this Court for the confirmation of orders of constitutional invalidity arising from similar applications brought in the Transvaal Provincial Division of the High Court (the High Court). The applicants in both matters are permanent residents. In the one application, Khosa and Others v The Minister of Social Development and Others[1] (the Khosa matter), the applicants challenged the constitutionality of section 3(c) of the Act which reserves social grants for aged South African citizens. Similarly, in the other application, Mahlaule and Another v The Minister of Social Development and Others[2] (the Mahlaule matter), the constitutional challenge was to sections 4(b)(ii) and 4B(b)(ii) of the Act, as amended by the Welfare Laws Amendment Act 106 of 1997 (Welfare Laws Amendment Act), which similarly reserve child-support grants and care-dependency grants respectively for South African citizens only. The respondents in both matters are the Minister of Social Development, the Director-General of Social Development and the Member of the Executive Committee for Health and Welfare in the Northern Province. Because the two matters are related and involve similar considerations and arguments of law, they were heard together both in the High Court and in this Court.

Factual background

[2] The applicants in both matters are Mozambican citizens who have acquired permanent residence status in South Africa in terms of exemptions granted to them under the now repealed Aliens Control Act 96 of 1991.[3] All of the applicants in both matters, save for the second applicant in the Khosa matter, fled Mozambique in the 1980s as a result of the outbreak of civil war and sought refuge in South Africa. They integrated into the local community in the former Gazankulu territory in what is now known as Limpopo Province. The second applicant in the Khosa matter came to South Africa to work for the then National Parks Board at Skukuza until his retirement in May 1992. He, like the other applicants in this case, is also a permanent resident.

[3] All of the applicants in both matters are destitute and would qualify for social assistance under the Act but for the fact that they are not South African citizens. In the Khosa matter, the second applicant had applied for an old-age grant on 1 September 1992 which was eventually paid to him in November 1996. This grant was later withdrawn in February 1998 during a “pension clean-up” by the Northern Province provincial government in which the payment of some 94 000 grants was discontinued. He was thereafter not permitted to apply for a new grant under the Act because of his lack of South African citizenship.

[4] In the case of the other applicants in both matters, their applications for old-age grants were refused because they are not South African citizens as required by the Act. In the Mahlaule matter, the first applicant attempted to apply for a child-support grant under section 4 of the Act in respect of two of her children who were then below the age of 7, but she too was not permitted to apply for the grant on the basis that she lacks South African citizenship. Another of her children, aged 12, is diabetic and would qualify for a care-dependency grant under section 4B(b)(ii).[4] Section 2(g) of the Act, which currently regulates the allocation of care-dependency grants, read together with regulations 5 and 9[5] promulgated under the Act, does not expressly preclude non-citizens from receiving care-dependency grants.

Proceedings in the High Court

[5] The applicants in both matters instituted motion proceedings in the High Court in which they sought to challenge the constitutionality of the relevant provisions of the Act. In the Khosa matter, the impugned law was subsection 3(c) of the Act. Section 3 of the Act states:

“Subject to the provisions of this Act, any person shall be entitled to the appropriate social grant if he satisfies the Director-General that he —

(a) is an aged or disabled person or a war veteran;

(b) is resident in the Republic at the time of the application in question;

(d) complies with the prescribed conditions.”[6] (Emphasis added.)

In the Mahlaule matter, both applicants challenged subsection 4(b)(ii) of the Act.[7] Section 4 of the Act governs child-support grants and states:

“Subject to the provisions of this Act, any person shall be entitled to a child-support grant if that person satisfies the Director-General that —

(a) he or she is the primary care-giver of a child; and

(b) he or she and that child —

(i) are resident in the Republic at the time of the application for the grant in question;

(ii) are South African citizens; and

(iii) comply with the prescribed conditions.” (Emphasis added.)

In the Mahlaule matter, the first applicant also challenged the constitutionality of subsection 4B(b)(ii) which will be introduced into the Act.[8] That section reads as follows:

“Subject to the provisions of this Act, any person shall be entitled to a care-dependency grant if that person satisfies the Director-General that —

(a) he or she is the parent or foster parent of a care-dependent child; and

(b) that he or she and that child —

(i) are resident in the Republic at the time of the application for the grant in question;

(ii) in the case of a parent and his or her child, are South African citizens; and

(iii) comply with the prescribed conditions.” (Emphasis added.)

[6] In the High Court, the respondents noted an intention to oppose the applications. Although the answering affidavits were due on 28 October 2002, none was filed by that date. The matter was set down for hearing before the High Court on 12 November 2002, but was postponed and the respondents were ordered to pay the wasted costs.

[7] On 12 March 2003, the matter came before the High Court again. It was not opposed by the respondents who were not present at the hearing. The High Court dealt with the matter as an unopposed application and made orders in similar terms to those sought by the applicants in their notice of motion. In the Khosa matter, the High Court granted the following order:

“IT IS ORDERED that:

1. Section 3(c) of the Social Assistance Act, 59 of 1992, (prior to amendment by the Welfare Laws Amendment Act, 106 of 1997) is inconsistent with the Constitution of the Republic of South Africa, 108 of 1996 (‘the Constitution’), and invalid.

2. Section 3(c) of the Social Assistance Act (prior to amendment by the Welfare Laws Amendment Act, 106 of 1997) is struck down.

3. The order in terms of paragraphs 1 and 2 is referred to the Constitutional Court for confirmation.

4. The second and third respondents are directed to:

4.1 pay the applicants an old-age grant within three months;

4.2 pay arrear old-age grant monies within three months

4.2.1 to the first applicant calculated from 1 November 2001;

4.2.2 to the second applicant calculated from 1 February 1998; and

4.2.3 to the third applicant calculated from 1 January 2000.

4.3 pay interest on such arrear grant monies at 15,5% per annum calculated from the dates in the preceding paragraph within three months.

5. The first and second respondents are directed to re-programme their computer data-base to allow it to accept and process the claims of non-South African citizens who qualify for social grants in terms of the Social Assistance Act.

6. The second and third respondents are directed to:

6.1 forthwith receive and process an application for a social grant for the persons listed on the schedule annexed to this order; and

6.2 within three months of application, either pay the persons listed on the schedule a social grant or advise them in writing of the reasons for the refusal of their applications.

7. The respondents are directed to pay the costs of this application.”

“IT IS ORDERED:

1. Section 4(b)(ii) of the Social Assistance Act, 59 of 1992, as amended by the Welfare Laws Amendment Act, 106 of 1997, is inconsistent with the Constitution and invalid.

2. Section 4(b)(ii) of the Social Assistance Act, as amended by the Welfare Laws Amendment Act, 106 of 1997 is struck down.

3. Section 4B(b)(ii) of the Social Assistance Act, 59 of 1992, as amended by the Welfare Laws Amendment Act, 106 of 1997, is inconsistent with the Constitution and invalid.

4. Section 4B(b)(ii) of the Social Assistance Act, as amended by the Welfare Laws Amendment Act, 106 of 1997 is struck down.

5. The order in terms of paragraph 1 to 4 is referred to the Constitutional Court for confirmation.

6. The second and third respondents are directed to:

6.1 pay a child-support grant to the first and second applicants within three months;

6.2 pay the first and second applicants arrear grant monies calculated from 1 April 2002 within three months; and

6.3 pay the first and second applicants interest on such arrear grant monies at 15.5% per annum and within three months.

7. The second and third respondents are directed to:

7.1 forthwith receive and process an application for a child support grant for the persons listed on the schedule attached to this order; and

7.2 within three months of application, either pay them a child-support grant or advise them in writing of the reasons for the refusal of their application.

8. The respondents pay the costs of this application.”

[9] The effect of the orders of the High Court is to oblige the state to provide social assistance under the Act to all “residents” who qualify for such assistance, irrespective of their citizenship. Unless “resident in the Republic” is construed narrowly to cover only permanent residents this implies an obligation on the state to provide assistance to both permanent and temporary residents.

[10] The matter was dealt with in the High Court as an unopposed application and an order was made by the judge without giving reasons. An order of constitutional invalidity made by a High Court is of no force and effect unless confirmed by this Court.9 To enable it to deal with the matter, this Court needs to know a judge’s reasons for making an order and the provisions of the Constitution which he or she relied on in doing so.[9] This Court was denied this benefit in the present case. An order declaring a provision of a statute to be invalid deals with an important constitutional matter and has far-reaching implications.[10] Such an order should only be made after careful consideration and reasons for the decision should always be given.

[11] Because the applicants challenged the constitutionality of section 4B(b)(ii) of the Act as amended by the Welfare Laws Amendment Act, the order of the High Court was directed at that section. Technically, because that section has yet to be brought into force, it is incorrect to refer to the provision in that way. Until promulgation the section is situated in section 3 of the Welfare Laws Amendment Act and it is preferable, therefore, to refer to it as that part of section 3 which is to introduce section 4B(b)(ii) into the Act. For the sake of convenience, however, this judgment will refer to the impugned section as section 4B(b)(ii), as it appears in section 3 of the Welfare Laws Amendment Act.

Proceedings in the Constitutional Court on 13 May 2003

[12] The orders of invalidity in both matters were referred to this Court for confirmation as required by section 172(2) of the Constitution. The Chief Justice gave directions setting both matters down for hearing on 13 May 2003. He further directed that if the respondents wished to oppose the application or appeal against any of the orders of the High Court they should lodge a notice to that effect on or before 14 April 2003 and arguments by not later than 6 May 2003. Paragraph 6 of those directions stated that:

“The respondents are requested to advise the registrar of the Constitutional Court and the Minister of Justice and Constitutional Development by not later than 14 April 2003 whether or not they intend making representations to the Court on the issues raised in these directions.

If the respondents do not intend to make representations to the Court, the Minister of Justice is requested in terms of section 8(2) of the Constitutional Court Complementary Act 13 of 1995 to appoint counsel to present argument to the Court on the issues raised in these directions, and in particular, on the government’s attitude to the order made. Such argument must be lodged by not later than 6 May 2003.”

[13] By 6 May 2003 no arguments had been lodged by any of the respondents or by the Minister of Justice and Constitutional Development (the Minister). Instructions had apparently not been given to the attorney of record in the State Attorney’s office, who was under the impression that the respondents did not intend to oppose the relief sought by the applicants. In response to an enquiry by the Registrar of this Court, the State Attorney indicated that the Minister had little to contribute to the case as he was not the Minister responsible for the legislation. The State Attorney requested, however, that the Minister be allowed until 23 May 2003, a date falling ten days after the date set down for hearing, to make representations to this Court.

[14] Responding on the same day to the State Attorney, the Chief Justice wrote:

“The direction to which you refer was given in terms of section 3(2) of the Constitutional Court Complementary Act which requires the Minister to appoint counsel to submit argument to the Court if requested to do so by the Chief Justice. Once the request was made the Minister was obliged to instruct counsel. If the counsel concerned required instructions or information from the Department of Social Development, as seems to be essential in the present case, the necessary arrangements should have been made timeously. It appears from your letter that the delay is the result of the failure to give effect to the Chief Justice’s directions. The case has been set down for hearing on 13 May and an extension to 23 May is not possible. The delay is unfortunate but the issues raised in the case are important and the Court requires the assistance of counsel for the State. Counsel must do the best they can in the circumstances and lodge their submissions as soon as possible and at the latest by 4.00 pm on the 9^th May.”

[15] The Director-General of the Department of Justice and Constitutional Development then informed the Registrar that the respondents wished to oppose the matter. There was therefore no longer a need to brief counsel on behalf of the Minister.

[16] When the matter came before this Court on 13 May 2003 the respondents were represented by counsel. They contended that the proceedings in the High Court had been irregular and that its order should be set aside, alternatively that because of the absence of material evidence on the record, the matter should be referred back to the High Court to be dealt with there. They tendered an affidavit deposed to by the Acting Director-General of the Department of Social Development (as he then was) which stated in relevant part:

“6.4 During November 2002, the respondents received an opinion from the state law advisors. In short the state law advisors were of the opinion, prima facie, that the requirement that only South African citizens are obliged to receive grants in terms of section 3(c) and 4(b)(ii) of the Social Assistance Act no. 59 of 1992 (“the Act”) constitutes unfair discrimination and is in conflict with section 9 of the Constitution.

6.5 However, in regard to the limitation clause, the state law advisors were of the opinion that only a competent court can determine this question.

6.6 After much deliberation in the department, a decision was taken not to oppose the matter. It has now transpired that since we are dealing with an application to declare the provisions of the Act unconstitutional, it was necessary that the respondents should have opposed the matter in the High Court.”

[17] Counsel for the respondents contended that there was a duty on the High Court judge flowing from the Constitution and the doctrine of separation of powers, to call for evidence on the availability of resources on the part of the respondents and to give a reasoned judgment for the finding of invalidity. As neither of these was done, the respondents contended that the High Court decision infringed the doctrine of separation of powers and therefore ought not to be confirmed by this Court. They further argued that even if the decision did not infringe the separation of powers, this Court should not confirm the order of the High Court as the relevant statistical and financial information had not been before it at the time of hearing the application.

[18] The respondents had the opportunity to place evidence before the High Court and cannot be heard to say that it was the duty of the High Court to call for evidence before declaring the impugned legislation unconstitutional. It was the respondents who were to be blamed for the failure to place relevant information and argument before the High Court which explained the reasons for the disputed provisions and the purpose they were intended to serve.

[19] Any challenge to legislation, whether national, provincial or local, is important. National legislation does not belong to a particular Minister or Department. It is the collective expressed will of Parliament. Declaring legislation invalid can have grave implications for our constitutional jurisprudence and, in some cases, far-reaching practical effects.[11] Even in those cases where the view is taken that there is nothing to be said in support of challenged legislation, a court, in order to exercise the due care required of it when dealing with such matters, may well require the assistance of counsel.[12] In this case it should have been apparent to the respondents that the declaration of invalidity of the impugned legislation could have significant budgetary and administrative implications for the state. If the necessary evidence is not placed before the courts dealing with such matters their ability to perform their constitutional mandate will be hampered and the constitutional scheme itself put at risk.[13] It is government’s duty to ensure that the relevant evidence is placed before the court.

[20] Counsel for the respondents also submitted that it was necessary for the Minister of Finance, who wished to intervene in the proceedings, to be joined in this matter as he had a “direct and substantial interest” and might be prejudiced by the order of the High Court. The non-joinder of the Minister of Finance, the respondents argued, was material and had the effect of vitiating the proceedings and the order of the High Court.

[21] As an alternative to the dismissal of the application for confirmation, the respondents submitted that the matter be referred back to the High Court for the relevant evidence to be considered there, or that this Court postpone the matter to enable the respondents to lodge such evidence here.

[22] The lack of evidence before this Court does not, in and of itself, justify the granting of a postponement.[14] A postponement is granted only at the discretion of the Court when it is in the interests of justice to do so.[15] Had this case not involved the confirmation of an order declaring a legislative provision to be inconsistent with the Constitution, which if confirmed could have far-reaching implications for the budget, the application for a postponement would almost certainly have been refused. The respondents were in wilful default both in the High Court and in this Court, and the government had also failed to comply with the directions issued by this Court in terms of the Constitutional Court Complementary Act.[16]

[23] It would not, however, have been in the public interest in this case for this Court to have proceeded with the hearing without the information necessary for a proper determination of the case, nor would it have been appropriate to refer the matter back to the High Court. Even though the High Court had not provided a reasoned judgment for its decision, it had finalised the matter and had made an order of invalidity. The matter was thus properly before this Court.

[24] Public interest dictates that there should be certainty as to the constitutionality of legislation, and the operation of an order of constitutional invalidity, a matter which falls squarely within the jurisdiction of this Court, should therefore not be held in abeyance for longer than is necessary.[17] Here this concern was heightened by the fact that the applicants are indigent persons who find themselves in dire circumstances. There was therefore a need to bring these proceedings to a close. Remitting the matter back to the High Court would only have caused undue delay, contrary to the interests of justice.

[25] This Court required further information to enable it to discharge its constitutional duty, and it was in the interests of justice that such information be placed before it. In the circumstances, the most appropriate way of dealing with the situation was to require the respondents to place the necessary information before this Court expeditiously. For these reasons, the matter was postponed. The Court considered it appropriate to make a special order of costs against the respondents and made the following order:

“1. The hearing in this matter is postponed until 09:00 on 30 May 2003.

2. The respondents are required to lodge their written argument by 16:00 on 21 May 2003.

3. The applicants may lodge a reply by 16:00 on 27 May 2003.

4. The Minister of Social Development is to pay the wasted costs of this application on the scale of attorney and own client.”

The orders for confirmation by this Court

[26] The orders of the High Court which are subject to confirmation by this Court are the orders of invalidity contained in paragraphs 1 and 2[18] of the order in the Khosa matter, and paragraphs 1 to 4[19] of the order in the Mahlaule matter. In addition, that court made interim orders aimed at providing relief pending a decision by this Court. The interim orders appear in paragraphs 4 and 5 of the order handed down in the Khosa matter[20] and paragraphs 6 and 7 of the order handed down in the Mahlaule matter.[21] The interim orders in this case are not themselves directly subject to confirmation and there has been no appeal against them.[22]

[27] Section 3(c) of the Act has been substituted by section 3 of the Welfare Laws Amendment Act, a provision which has not yet been brought into force.[23] This amendment introduces no substantive change to section 3(c) of the Act. The amendment, when it comes into force, will change the wording in section 3 from:

“Subject to the provisions of this Act, any person shall be entitled to the appropriate social grant if he satisfies the Director-General that he —

. . .

to:

“Subject to the provisions of this Act, any person shall be entitled to the appropriate social grant if that person satisfies the Director-General that he or she —

. . .

The substantive requirement for citizenship in section 3(c) as a basis for qualification for access to the social grant will therefore remain intact after amendment.

[28] Since section 3(c) as amended had not yet been brought into force, the High Court only gave an order dealing with section 3(c) prior to amendment by section 3 of the Welfare Laws Amendment Act. The newly introduced section 4B(b)(ii) as it appears in section 3 of the Welfare Laws Amendment Act, which was challenged by the applicant and struck down by the High Court as constitutionally invalid in the Mahlaule matter, has also not yet been brought into force.[26] The only section which was challenged by the applicants in the High Court and which is in force, as amended by the Welfare Laws Amendment Act, is section 4(b)(ii) of the Act.

[29] In their written argument, the applicants therefore sought to reserve the right to amend their notice of motion so as to challenge the amended section before this Court. However, no such application was made, either in writing or in oral argument. Were the applicants to have done so, this would potentially have changed the nature of the proceedings in the Khosa matter from confirmation proceedings to an application for direct access to challenge the constitutionality of a section that was not directly before the High Court.28 If section 3(c) prior to amendment is found to be unconstitutional, it would certainly be the case that section 3(c) after amendment would also be unconstitutional, given that the wording of the two subsections is substantively identical. I return to the question of the constitutionality of the section after amendment later in this judgment.

[30] In the case of section 4B(b)(ii), no substantively similar provision is made for care-dependency grants in the existing legislation. Care-dependency grants are defined in section 1 of the Act and administered under section 2(g) of the Act. Regulation 5 read with regulation 9 under the Act currently provides for the administration of these care-dependency grants. There is nothing in the Act, or in either of those regulations or in any other applicable regulation which expressly restricts these grants to South African citizens only.[27]

[31] This Court has accepted without comment the constitutional propriety of the practice of including in legislation a provision empowering the President to determine the date of operation of legislation.[28] In Ex Parte Minister of Safety and Security and Others: In re S v Walters and Another this Court was asked to examine the constitutionality of a provision in legislation that had not yet been brought into force but declined to do so on the ground that the challenge to that provision was not properly before it.[29] This case is, however, somewhat different to Walters. The Court in Walters was invited to consider matters of interpretation of the provision in question without the applicants challenging the constitutionality of a provision. Here, this Court is confronted with an order declaring a legislative provision invalid and inconsistent with the Constitution where that provision has not yet been brought into force. That order was referred to this Court in terms of section 172(2)(a) of the Constitution which provides:

“The Supreme Court of Appeal, a High Court or a court of similar status may make an order concerning the constitutional validity of an Act of Parliament, a provincial Act or any conduct of the President, but an order of constitutional invalidity has no force unless it is confirmed by the Constitutional Court.”

This Court is now required to confirm that order before it comes into operation and is of any force and effect. Up to now this Court has not had to confront the question as to whether or not a court can declare legislation invalid which has been passed by Parliament and assented to by the President but which has not yet been brought into force, nor did counsel address this issue either in written argument or in oral submissions before this Court.

[32] This case is a section 172 confirmation matter. In the President, Ordinary Court Martial case,[30] this Court had to decide whether it is obliged to hear matters referred to it under section 172 or whether it has a discretion to do so.[31] Langa DP (as he then was) held that subsection 172(2) does not expressly provide that this Court is obliged to determine such appeals or matters which come for confirmation. He held that while it is clear that the confirmation procedure in section 172 exists to provide certainty, and that in general this Court will be required to hear and determine such proceedings, subsection 172(2) does not require this Court in all circumstances to determine matters brought to it under that subsection.[32] In that case the legislation that had been declared invalid by the High Court had been repealed prior to reaching this Court for confirmation. As a decision on the constitutional invalidity of that legislative provision would have no practical effect on the parties to the litigation and there were no considerations of public policy involved, the Court declined to hear the matter referred to it.[33] Similarly in Independent Electoral Commission v Langeberg Municipality[34] Yacoob J and Madlanga AJ held that if a confirmation order will have no practical effect, this Court will not exercise its discretion under section 172 in favour of confirmation.[35] The fact that section 4B(b)(ii) as it appears in section 3 of the Welfare Laws Amendment Act has not yet been brought into force is a matter to which I return later in this judgment.

The tender by the state

[33] At the second hearing of this matter before this Court on 30 May 2003 the respondents conceded that, as a matter of law, children who are South African citizens should not be denied access to child-support grants and that a provision in legislation which denies such children access because their primary care-giver or their parents are not South African citizens would be unconstitutional.[36] They did not oppose the confirmation of the order in so far as it declared section 4(b)(ii) of the Act as amended and section 4B(b)(ii) as it appears in section 3 of the Welfare Laws Amendment Act to be inconsistent with the Constitution to the extent that they exclude children who are South African citizens from social assistance. They contended, however, that such an order of invalidity should be suspended for 18 months to enable Parliament to amend the legislation.

[34] Acknowledging the plight of the applicants who are destitute and in need of care, the second respondent informed the Court that the first respondent had been urgently requested to consider extending the definition of a “South African citizen” in the Act[37] to accommodate the present applicants and former refugees from Mozambique who were granted exemptions under the Aliens Control Act.[38] The respondents contended that these concessions should settle the dispute between the parties and that there was therefore no need for this Court to confirm the order of invalidity in respect of subsection 3(c) of the Act.

[35] An offer to settle the dispute made by one litigant to the other, even if accepted, cannot cure the ensuing legal uncertainty or dispose of the confirmation proceedings. Even if the applicants had accepted the offer it would have settled the dispute only between these litigants. The impact of the settlement would have been too limited and would not resolve the unconstitutionality of the impugned provisions and the impact that they have on the broader group of permanent residents who qualify in all other respects for social grants. An important purpose of confirmation proceedings is to ensure legal certainty.[39] If parties were permitted to reach agreements that would remove this Court’s power to hear confirmation proceedings in relation to an order of invalidity, that purpose would be defeated.

Standing

[36] In the High Court the applicants brought their application under section 38(a)-(e) of the Constitution.[40] They claimed standing in their private capacities, on behalf of their children and on behalf of permanent residents who cannot act in their own names, and in the interest of classes of permanent residents and children affected by the impugned legislation. The applicants also claimed to act in the public interest. However, before this Court, the respondents contested the appropriateness of the applicants bringing these proceedings in the public interest. They contended that the issues of fact and law raised in this case concern a finite group of persons and not permanent residents in general.[41] Thus, the case regarding a wider category of permanent residents, in the circumstances, was abstract and hypothetical and should not be entertained.

[37] In my view, the applicants meet more than one of the requirements under section 38. They need not satisfy all of the provisions in section 38 for them to have standing to approach this Court.[42] In this case, the status of the applicants as permanent residents is sufficient to accord them standing to bring this challenge. Further, it is appropriate for the applicants to bring this matter in the interest of permanent residents and children who are in the care of permanent residents. They are indeed members of a group or class of people who would qualify for social assistance under the Act but for the fact that they are not South African citizens. They also act on behalf of children who cannot act on their own and who would qualify for social assistance but for the citizenship limitation. I am satisfied that based on these provisions the applicants have standing before this Court. There is therefore no need to decide the applicants’ claim of public-interest standing.

Main contentions of the parties

[38] The applicants contended that the exclusion of all non-citizens from the scheme is inconsistent with the state’s obligations under section 27(1)(c) of the Constitution to provide access to social security to “everyone”. The relevant parts of section 27 of the Constitution provide:

“Health care, food, water and social security —

(1) Everyone has the right to have access to —

. . .

(c) social security, including, if they are unable to support themselves and their dependants, appropriate social assistance.

(2) The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of each of these rights.”

[39] They also argued that the exclusion limited their right to equality and was unfair under section 9 of the Constitution and that the limitation was unjustifiable under section 36 of the Constitution. They further contended that their right to life under section 11 of the Constitution and their right to dignity under section 10 were infringed without justification. In so far as the grants in favour of children were concerned, they contended that the exclusion also infringed the rights that children have under section 28 of the Constitution. The respondents essentially advanced reasons that motivated and, so it was submitted, justified the decision to exclude all non-citizens, including permanent residents. These arguments will be dealt with in detail later in this judgment.

The approach to claims for socio-economic rights

[40] The socio-economic rights in our Constitution are closely related to the founding values of human dignity, equality and freedom.[43] Yacoob J observed in Government of the Republic of South Africa and Others v Grootboom and Others that the proposition that rights are inter-related and are all equally important, has immense human and practical significance in a society founded on these values.46

[41] In this case we are concerned with these intersecting rights which reinforce one another at the point of intersection. The rights to life and dignity, which are intertwined in our Constitution,[44] are implicated in the claims made by the applicants. This Court in Dawood said:

“Human dignity . . . informs constitutional adjudication and interpretation at a range of levels. It is a value that informs the interpretation of many, possibly all, other rights. . . . Section 10, however, makes it plain that dignity is not only a value fundamental to our Constitution it is a justiciable and enforceable right that must be respected and protected. In many cases, however, where the value of human dignity is offended, the primary constitutional breach occasioned may be of a more specific right such as the right to bodily integrity, the right to equality or the right not to be subjected to slavery, servitude or forced labour.”[45]

[42] Equality is also a foundational value of the Constitution and informs constitutional adjudication in the same way as life and dignity do. Equality in respect of access to socio-economic rights is implicit in the reference to “everyone” being entitled to have access to such rights in section 27. Those who are unable to survive without social assistance are equally desperate and equally in need of such assistance.

[43] This Court has dealt with socio-economic rights on four previous occasions.[46] What is clear from these cases is that section 27(1) and section 27(2) cannot be viewed as separate or discrete rights creating entitlements and obligations independently of one another. Section 27(2) exists as an internal limitation on the content of section 27(1) and the ambit of the section 27(1) right can therefore not be determined without reference to the reasonableness of the measures adopted to fulfil the obligation towards those entitled to the right in section 27(1).[47]

[44] When the rights to life, dignity and equality are implicated in cases dealing with socio-economic rights, they have to be taken into account along with the availability of human and financial resources in determining whether the state has complied with the constitutional standard of reasonableness. This is, however, not a closed list and all relevant factors have to be taken into account in this exercise. What is relevant may vary from case to case depending on the particular facts and circumstances. What makes this case different to other cases that have previously been considered by this Court is that, in addition to the rights to life and dignity, the social-security scheme put in place by the state to meet its obligations under section 27 of the Constitution raises the question of the prohibition of unfair discrimination.

[45] It is also important to realise that even where the state may be able to justify not paying benefits to everyone who is entitled to those benefits under section 27 on the grounds that to do so would be unaffordable, the criteria upon which they choose to limit the payment of those benefits (in this case citizenship) must be consistent with the Bill of Rights as a whole. Thus if the means chosen by the legislature to give effect to the state’s positive obligation under section 27 unreasonably limits other constitutional rights, that too must be taken into account.

The ambit of the right of access to social security in terms of section 27(1)(c)

[46] The socio-economic rights in sections 26[48] and 27 of the Constitution are conferred on “everyone” by subsection (1) in each of those sections. In contrast, the state’s obligations in respect of access to land apply only to citizens.[49] Whether the right in section 27 is confined to citizens only or extends to a broader class of persons therefore depends on the interpretation of the word “everyone” in that section. The applicants relied on section 25 of the Constitution, as well as various other rights in the Bill of Rights,[50] to argue that “everyone” in section 27 included non-citizens and therefore also (for the purposes of this case) permanent residents.

[47] This Court has adopted a purposive approach to the interpretation of rights.[51] Given that the Constitution expressly provides that the Bill of Rights enshrines the rights of “all people in our country”,[52] and in the absence of any indication that the section 27(1) right is to be restricted to citizens as in other provisions in the Bill of Rights, the word “everyone” in this section cannot be construed as referring only to “citizens”.[53]

The reasonableness of the legislative scheme

[48] A court considering the reasonableness of legislative or other measures taken by the state will not enquire into whether other more desirable or favourable measures could have been adopted, or whether public resources could have been better spent.[54] A wide range of possible measures could be adopted by the state to meet its obligations and many of these may meet the requirement of reasonableness. Once it is shown that the measures do so, this requirement would be met.

[49] In dealing with the issue of reasonableness, context is all important. We are concerned here with the right to social security and the exclusion from the scheme of permanent residents who, but for their lack of citizenship, would qualify for the benefits provided under the scheme. In considering whether that exclusion is reasonable, it is relevant to have regard to the purpose served by social security, the impact of the exclusion on permanent residents and the relevance of the citizenship requirement to that purpose. It is also necessary to have regard to the impact that this has on other intersecting rights. In the present case, where the right to social assistance is conferred by the Constitution on “everyone” and permanent residents are denied access to this right, the equality rights entrenched in section 9 are directly implicated.

The purpose of providing access to social security to those in need

[50] The state did not suggest that the exclusion of permanent residents was a temporary measure, nor did it argue that the exclusion was an incident of attempts by it progressively to realise everyone’s right of access to social security. The state’s case is rather that non-citizens have no legitimate claim of access to social security and it therefore excluded them from the scheme that it put in place. It is that proposition that has to be tested against the constitutional standard of reasonableness demanded by section 27(2).

[51] Those who seek assistance must meet stringent means tests prescribed by regulations made under the Act. Grants are made to those in need, including vulnerable persons. According to Mr Madonsela, the Director-General of the Department of Social Development, the legislation is part of the government’s strategy to combat poverty. He says also that the legislation is directed at realising the relevant objectives of the Constitution and the Reconstruction and Development Programme, and giving effect to South Africa’s international obligations.

[52] The right of access to social security, including social assistance, for those unable to support themselves and their dependants is entrenched because as a society we value human beings and want to ensure that people are afforded their basic needs. A society must seek to ensure that the basic necessities of life are accessible to all if it is to be a society in which human dignity, freedom and equality are foundational.[55]

The reasonableness of citizenship as a criterion of differentiation

[53] It is necessary to differentiate between people and groups of people in society by classification in order for the state to allocate rights, duties, immunities, privileges, benefits or even disadvantages and to provide efficient and effective delivery of social services. However, those classifications must satisfy the constitutional requirement of “reasonableness” in section 27(2). In this case, the state has chosen to differentiate between citizens and non-citizens. That differentiation, if it is to pass constitutional muster, must not be arbitrary or irrational nor must it manifest a naked preference. There must be a rational connection between that differentiating law and the legitimate government purpose it is designed to achieve. A differentiating law or action which does not meet these standards will be in violation of section 9(1) and section 27(2) of the Constitution.

[54] The respondents averred that citizenship is a requirement for social benefits in “almost all developed countries”.[56] That may be so in respect of certain benefits. But unlike ours, those countries do not have constitutions that entitle “everyone” to have access to social security, nor are their immigration and welfare laws necessarily the same as ours.

[55] The respondents contended that immigrants, before entering the country, are required to show self-sufficiency in order to qualify for permanent residence status. They are only restricted from accessing the right in question for a temporary period of five years, after which they can apply for citizenship by reason of naturalisation. On receipt of citizenship, they would have a right to social security. In their submission, any infringement of the right was therefore only of a temporary nature. They did not, however, offer any justification for denying the right to permanent residents during this five-year period.

[56] In essence, the Constitution properly interpreted provides that a permanent resident need not be a citizen in order to qualify for access to social security. Justifying the restriction of that right of access by the fact that the South African Citizenship Act 88 of 1995 allows them to apply under exceptional circumstances for naturalisation,[57] and thereby obtain access to the grants in question, is not reasonable. Besides, it is doubtful whether the need for a social grant will be viewed as an “exceptional circumstance” sufficient to waive the normal requirements for naturalisation considering that the Immigration Act 13 of 2002 requires, in terms of sections 25 to 28, that a person applying for permanent residence in South Africa either be self-sufficient or have a supporting sponsor. The decision to grant naturalisation under the South African Citizenship Act may well be subject to administrative discretion and would therefore be beyond the control of the applicants.[58]

[57] The respondents argued that the state has an obligation toward its own citizens first, and that preserving welfare grants for citizens only creates an incentive for permanent residents to naturalise. This argument, commonly found in American jurisprudence, is based on the social contract assumption that non-citizens are not entitled to the full benefits available to citizens.[59] The argument, however, does not accord with the stated legislative intention in the Immigration Act which provides that:

“The holder of a permanent residence permit has all the rights, privileges, duties and obligations of a citizen, save for those rights, privileges, duties and obligations which a law or the Constitution explicitly ascribes to citizenship.”[60]

Financial considerations

[58] I accept that the concern that non-citizens may become a financial burden on the country is a legitimate one and I accept that there are compelling reasons why social benefits should not be made available to all who are in South Africa irrespective of their immigration status. The exclusion of all non-citizens who are destitute, however, irrespective of their immigration status, fails to distinguish between those who have become part of our society and have made their homes in South Africa, and those who have not. It also fails to distinguish between those who are being supported by sponsors who arranged their immigration and those who acquired permanent residence status without having sponsors to whom they could turn in case of need.

[59] It may be reasonable to exclude from the legislative scheme workers who are citizens of other countries, visitors and illegal residents, who have only a tenuous link with this country. The position of permanent residents is, however, quite different to that of temporary or illegal residents. They reside legally in the country and may have done so for a considerable length of time. Like citizens, they have made South Africa their home. While citizens may leave the country indefinitely without forfeiting their citizenship, permanent residents are compelled to return to the country (except in certain circumstances) at least once every three years.[61] While they do not have the rights tied to citizenship, such as political rights and the right to a South African passport, they are, for all other purposes mentioned above, in much the same position as citizens. Once admitted as permanent residents they can enter and leave the country.[62] Their homes, and no doubt in most cases their families too, are in South Africa. Some will have children born in South Africa. They have the right to work in South Africa,[63] and even owe a duty of allegiance to the state.[64] For these reasons, I exclude temporary residents and it would have been appropriate for the High Court to have done so.

[60] The respondents also sought to deny the benefit to permanent residents on the grounds that this would impose an impermissibly high financial burden on the state. The respondents relied for this point on an affidavit deposed to by Mr Kruger, the Chief Director of Social Services in the National Treasury. According to him, the development of a system of social grants has been a key pillar of the government’s strategy to fight poverty and promote human development. This has led to a substantial and rapid increase in expenditure on social grants. In the last three years alone the expenditure, excluding costs of administration, has increased from R16.1 billion to R26.2 billion. It is contemplated that over the next three years grants will increase from R26.2 billion to R44.6 billion. In addition, provision has to be made for expenditure on other socio-economic programmes. Mr Kruger says that if provision has to be made for the expenditure necessary to give effect to the High Court order, the costs will be large and will result in shortfalls in provincial budgets particularly in the poorer provinces.

[61] Mr Kruger indicates that there is a paucity of information concerning the number of persons who might qualify for grants if they are extended to permanent residents. He refers to various classes of persons who have been exempted from the normal immigration requirements and have been accorded permanent residence status. They include Mozambican refugees and various persons from members of the Southern African Development Community and other African countries. He estimates that there are at least 260 000 such persons currently in South Africa. Most of these permanent residents have been living in South Africa for a considerable period of time. In the case of the applicants, they have all been in South Africa since 1993 or longer. The respondents were unable, however, to furnish this Court with information relating to the numbers who hold permanent resident status, or who would qualify for social assistance if the citizenship barrier were to be removed.

[62] There is thus no clear evidence to show what the additional cost of providing social grants to aged and disabled permanent residents would be. Taking into account certain assumptions relating to the composition of the groups and numbers of dependents, Mr Kruger concludes that the additional annual cost of including permanent residents in grants in terms of sections 3, 4 and 4B could range between R243 million and R672 million. The possible range demonstrates the speculative nature of the calculations, but even if they are taken as providing the best guide of what the cost may be, they do not support the contention that there will be a huge cost in making provision for permanent residents. Approximately one fifth of the projected expenditure is in respect of child grants and the unconstitutionality of the citizenship requirement in that section of the Act has already been conceded by the respondents. The remainder reflects an increase of less than 2% on the present cost of social grants (currently R26.2 billion) even on the higher estimate. Bearing in mind that it is anticipated that the expenditure on grants will, in any event, increase by a further R18.4 billion over the next three years without making provision for permanent residents, the cost of including permanent residents in the system will be only a small proportion of the total cost.

Self-sufficiency

[63] Another reason given for excluding permanent residents from the scheme was the promotion of the immigration policy of the state, which seeks to exclude persons who may become a burden on the state and thereby to encourage self-sufficiency among foreign nationals.

[64] Limiting the cost of social welfare is a legitimate government concern. If it is considered necessary to control applications for permanent residence by excluding those who may become a burden on the state, that too is permissible, but it must be done in accordance with the Constitution and its values. The state can protect itself against persons becoming financial burdens by thorough, careful consideration in the admission of immigrants, or by taking adequate security from those admitted, or by demanding such security or guarantees from their sponsors at the time the immigrants are allowed into the country or are permitted to stay as permanent residents. It would not necessarily be unreasonable in such circumstances to require a permanent resident to look in the first instance to his or her sponsor for support, and to permit a claim on the security system only if, notwithstanding the security or guarantee, that fails.

[65] At the time the immigrant applies for admission to take up permanent residence the state has a choice. If it chooses to allow immigrants to make their homes here it is because it sees some advantage to the state in doing so. Through careful immigration policies it can ensure that those admitted for the purpose of becoming permanent residents are persons who will profit, and not be a burden to, the state. If a mistake is made in this regard, and the permanent resident becomes a burden, that may be a cost we have to pay for the constitutional commitment to developing a caring society, and granting access to socio-economic rights to all who make their homes here. Immigration can be controlled in ways other than allowing immigrants to make their permanent homes here, and then abandoning them to destitution if they fall upon hard times. The category of permanent residents who are before us are children and the aged, all of whom are destitute and in need of social assistance. They are unlikely to earn a living for themselves. While the self-sufficiency argument may hold in the case of immigrants who are viable in the job market and who are still in the process of applying for permanent resident status, the argument is seemingly not valid in the case of children and the aged who are already settled permanent residents and part of South African society.

[66] Respondents relied in their argument on the decision of a United States appellate court in City of Chicago v Shalala.[65] In that case it was held that the relevant legislative provisions which disqualified non-citizens who were legal permanent residents from participation in the scheme, were not inconsistent with the equal protection clause of the US Constitution.[66] In reaching its decision the court applied a rational basis standard of review, holding that there was a rational connection between the federal government’s immigration policy and its welfare policy of encouraging the self-sufficiency of immigrants.

[67] The test for rationality is a relatively low one. As long as the government purpose is legitimate and the connection between the law and the government purpose is rational and not arbitrary, the test will have been met.[67] Despite the failure of many of the respondents’ arguments with respect to the purpose of the exclusion of permanent residents from the social-assistance scheme, I am prepared to assume that there is a rational connection between the citizenship provisions of the Act and the immigration policy it is said to support. But that is not the test for determining constitutionality under our Constitution. Section 27(2) of the Constitution sets the standard of reasonableness which is a higher standard than rationality.[68]

Is there unfair discrimination?

[68] The fact that the differentiation between citizens and non-citizens may have a rational basis does not mean that it is not an unfairly discriminatory criterion to use in the allocation of benefits. If the differentiation is based on a ground listed in section 9(3)[69] of the Constitution a rebuttable presumption that the discrimination is unfair is created by section 9(5).[70] However, where, as in this case, the ground for the differentiation is not itself listed but is analogous to such listed grounds, there is no presumption in favour of unfairness and the unfairness first has to be established.

[69] In President of the Republic of South Africa and Another v Hugo[71] Goldstone J stated that:

“At the heart of the prohibition of unfair discrimination lies a recognition that the purpose of our new constitutional and democratic order is the establishment of a society in which all human beings will be accorded equal dignity and respect regardless of their membership of particular groups. The achievement of such a society in the context of our deeply inegalitarian past will not be easy, but that that is the goal of the Constitution should not be forgotten or overlooked.

. . .

To determine whether that impact was unfair it is necessary to look not only at the group who has been disadvantaged but at the nature of the power in terms of which the discrimination was effected and, also at the nature of the interests which have been affected by the discrimination.”

[70] Citizenship is not a ground of differentiation that is specified in section 9(3) of the Constitution. In Hoffmann v South African Airways this Court held that “at the heart of the prohibition of unfair discrimination is the recognition that under our Constitution all human beings, regardless of their position in society, must be accorded equal dignity.”[72] To be considered an analogous ground of differentiation to those listed in section 9(3) the classification must, therefore, have an adverse effect on the dignity of the individual, or some other comparable effect.[73]

[71] In Larbi-Odam[74] the Court found that discrimination on the basis of citizenship in the context of permanent employment amounted to unfair discrimination. With respect to permanent residents the Court had the following to say:

“[Permanent residents] have been selected for residence in this country by the Immigrants Selection Board, some of them on the basis of recruitment to specific posts. Permanent residents are generally entitled to citizenship within a few years of gaining permanent residency, and can be said to have made a conscious commitment to South Africa. Moreover, permanent residents are entitled to compete with South Africans in the employment market. As emphasised by the appellants, it makes little sense to permit people to stay permanently in a country, but then to exclude them from a job they are qualified to perform.”[75]

With regard to the vulnerability of permanent residents, the Court in Larbi-Odam found that first, foreign citizens are a minority in all countries, and have little political muscle. Secondly, the Court felt that citizenship is a personal attribute which is difficult to change. The respondents argued in this Court that citizenship is not a matter within the discretion of the Minister of Home Affairs, and that the state would be compelled to grant citizenship to persons who have resided in South Africa for five years and who satisfy the other criteria required for citizenship by naturalisation. Even if that were true (and it is not necessary to decide the point) it remains so that citizenship is typically not within the control of the individual and is, at least temporarily, a characteristic of personhood not alterable by conscious action and in some cases not alterable except on the basis of unacceptable costs. It is also true, as was noted in Larbi-Odam, that in the South African context individuals were deprived of rights or benefits ostensibly on the basis of citizenship, but in reality in circumstances where citizenship was governed by race. Differentiation on the grounds of citizenship is clearly on a ground analogous to those listed in section 9(3) and therefore amounts to discrimination.[76]

[72] With this said, one must now determine whether that discrimination is unfair. The determining factor regarding the unfairness of the discrimination is its impact on the person discriminated against.[77] Relevant considerations in this regard include:

“(a) the position of the complainants in society and whether they have suffered in the past from patterns of disadvantage, whether the discrimination in the case under consideration is on a specified ground or not;

(b) the nature of the provision or power and the purpose sought to be achieved by it. If its purpose is manifestly not directed, in the first instance, at impairing the complainants in the manner indicated above, but is aimed at achieving a worthy and important societal goal, such as, for example, the furthering of equality for all, this purpose may, depending on the facts of the particular case, have a significant bearing on the question whether complainants have in fact suffered the impairment in question. . . .

(c) with due regard to (a) and (b) above, and any other relevant factors, the extent to which the discrimination has affected the rights or interests of complainants and whether it has led to an impairment of their fundamental human dignity or constitutes an impairment of a comparably serious nature.”[78]

These factors do not constitute a closed list and it is their cumulative effect that must be examined and in respect of which a determination must be made as to whether the discrimination is unfair.[79]

[73] In Brink v Kitshoff NO, O'Regan J, with the concurrence of all the members of the Court, stated:

“Section 8 was adopted then in the recognition that discrimination against people who are members of disfavoured groups can lead to patterns of group disadvantage and harm. Such discrimination is unfair: it builds and entrenches inequality amongst different groups in our society. The drafters realised that it was necessary both to proscribe such forms of discrimination and to permit positive steps to redress the effects of such discrimination. The need to prohibit such patterns of discrimination and to remedy their results are the primary purposes of section 8 and, in particular, subsections (2), (3) and (4).”[80]

[74] There can be no doubt that the applicants are part of a vulnerable group in society and, in the circumstances of the present case, are worthy of constitutional protection. We are dealing, here, with intentional, statutorily sanctioned unequal treatment of part of the South African community. This has a strong stigmatising effect. Because both permanent residents and citizens contribute to the welfare system through the payment of taxes, the lack of congruence between benefits and burdens created by a law that denies benefits to permanent residents almost inevitably creates the impression that permanent residents are in some way inferior to citizens and less worthy of social assistance.[81] Sharing responsibility for the problems and consequences of poverty equally as a community represents the extent to which wealthier members of the community view the minimal well-being of the poor as connected with their personal well-being and the well-being of the community as a whole.[82] In other words, decisions about the allocation of public benefits represent the extent to which poor people are treated as equal members of society.[83]

[75] Social grants in terms of section 3 of the Act can be claimed by “an aged person, a disabled person or a war veteran”. Child-support grants in terms of section 4 can be claimed by the primary care-giver of the child, and care-dependency grants can be claimed by the parent or foster parent of a care-dependent child. In terms of section 1 of the Act, a care-dependent child is one who requires and receives permanent home care owing to his or her severe mental or physical disability.

The impact of the exclusion

[76] The exclusion of permanent residents in need of social-security programmes forces them into relationships of dependency upon families, friends and the community in which they live, none of whom may have agreed to sponsor the immigration of such persons to South Africa. These families or dependants, who may be in need of social assistance themselves, are asked to shoulder burdens not asked of other citizens. The denial of the welfare benefits therefore impacts not only on permanent residents without other means of support, but also on the families, friends and communities with whom they have contact. Apart from the undue burden that this places on those who take on this responsibility, it is likely to have a serious impact on the dignity of the permanent residents concerned who are cast in the role of supplicants.

[77] As far as the applicants are concerned, the denial of the right is total and the consequences of the denial are grave. They are relegated to the margins of society and are deprived of what may be essential to enable them to enjoy other rights vested in them under the Constitution. Denying them their right under section 27(1) therefore affects them in a most fundamental way. In my view this denial is unfair.

[78] Section 4(b)(ii) of the Act, which deals with child-support grants, requires both the adult and the child to be South African citizens. In the case of care-dependency grants, section 4B(b)(ii) requires that both the parent and the child be South African citizens. However, there is no citizenship requirement in respect of foster parents of a care-dependent child. Foster-child grants in terms of section 4A are also not subject to a citizenship requirement. The children referred to in section 4(b)(ii) and 4B(b)(ii) may have been born in South Africa and may be citizens, but if the primary care-giver or parent, excluding foster parents, is not a South African citizen, the grant is not payable. The respondents did not seek to support these provisions, which discriminate against children on the grounds of their parents’ nationality. It was therefore conceded that citizenship is an irrelevant consideration in assessing the needs of the children concerned. Moreover the denial of support in such circumstances to children in need trenches upon their rights under section 28(1)(c) of the Constitution.[84]

Evaluation

[79] It is now necessary to weigh up the competing considerations taking into account the intersecting rights that are involved in the present case. Of crucial importance to this analysis is the fact that the Constitution provides that “everyone” has the right to have access to social security if they are unable to support themselves and their dependants. We are concerned here with a scheme that has been put in place by the state to provide access to social security to persons unable to support themselves and their dependants. The only challenge to the scheme is that it denies access to non-citizens. There is no suggestion that the scheme is otherwise inappropriate or inconsistent with the Constitution.

[80] I have already indicated that the exclusion of permanent residents from the scheme is discriminatory and unfair and I am satisfied that this unfairness would not be justifiable under section 36 of the Constitution. The relevant considerations have been traversed above and need not be repeated. What is of particular importance in my view, however, and can be stressed again, is that the exclusion of permanent residents from the scheme is likely to have a severe impact on the dignity of the persons concerned, who, unable to sustain themselves, have to turn to others to enable them to meet the necessities of life and are thus cast in the role of supplicants.

[81] The denial of access to social assistance is total, and for as long as it endures, permanent residents unable to sustain themselves or to secure meaningful support from other sources will be relegated to the margins of society and deprived of what may be essential to enable them to enjoy other rights vested in them under the Constitution. Denying permanent residents access to social security therefore affects them in a most fundamental way.

[82] In my view the importance of providing access to social assistance to all who live permanently in South Africa and the impact upon life and dignity that a denial of such access has, far outweighs the financial and immigration considerations on which the state relies. For the same reasons, I am satisfied that the denial of access to social grants to permanent residents who, but for their citizenship, would qualify for such assistance does not constitute a reasonable legislative measure as contemplated by section 27(2) of the Constitution.

[83] There is a difficulty in applying section 36 of the Constitution to the socio-economic rights entrenched in sections 26 and 27 of the Constitution. Sections 26 and 27 contain internal limitations which qualify the rights. The state’s obligation in respect of these rights goes no further than to take “reasonable legislative and other measures within its available resources to achieve the progressive realisation” of the rights. If a legislative measure taken by the state to meet this obligation fails to pass the requirement of reasonableness for the purposes of sections 26 and 27, section 36 can only have relevance if what is “reasonable” for the purposes of that section, is different to what is “reasonable” for the purposes of sections 26 and 27.

[84] This raises an issue which has been the subject of academic debate but which has not as yet been considered by this Court.[85] We heard no argument on the matter and do not have the benefit of a judgment of the High Court. In the circumstances, it is undesirable to express any opinion on the issue unless it is necessary to do so for the purposes of the decision in this case. In my view it is not necessary to decide the issue. Even if it is assumed that a different threshold of reasonableness is called for in sections 26 and 27 than is the case in section 36, I am satisfied for the reasons already given that the exclusion of permanent residents from the scheme for social assistance is neither reasonable nor justifiable within the meaning of section 36.

[85] The Constitution vests the right to social security in “everyone”. By excluding permanent residents from the scheme for social security, the legislation limits their rights in a manner that affects their dignity and equality in material respects. Dignity and equality are founding values of the Constitution and lie at the heart of the Bill of Rights. Sufficient reason for such invasive treatment of the rights of permanent residents has not been established. The exclusion of permanent residents is therefore inconsistent with section 27 of the Constitution.

Remedy

[86] For the reasons given above, we do not confirm the order of the High Court and we find section 3(c), prior to amendment by the Welfare Laws Amendment Act, to be unconstitutional. It was the submission of the respondents that we find sections 4(b)(ii) and 4B(b)(ii) of the Act, as amended by the Welfare Laws Amendment Act, unconstitutional and that we strike them both down, coupled with an order suspending invalidity. Section 4B(b)(ii) as it appears in section 3 of the Welfare Laws Amendment Act is not yet in force. Although this new section will become part of the Act when it is promulgated, it has been passed as part of the Welfare Laws Amendment Act. Thus, the High Court’s determination of the impugned section as a provision of the Social Assistance Act was technically not in order. Since the impugned section was before the High Court it is necessary for it to be considered in these confirmation proceedings. However, in view of the fact that the new provision is currently contained in the Welfare Laws

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South Africa: Constitutional Court

Khosa and Others v Minister of Social Development and Others; Mahlaule and Another v Minister of Social Development (CCT 13/03; CCT 12/03) [2004] ZACC 11; 2004 (6) SA 505 (CC); 2004 (6) BCLR 569 (CC) (4 March 2004)