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)

About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Constitutional Court
SAFLII
>>
Databases
>>
South Africa: Constitutional Court
>>
2004
>>
[2004] ZACC 11
|

|

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)

Links to summary

CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 12/03
LOUIS KHOSA                                                                                                Â
First
Applicant
                                                                                                                                        Â
ELIASSE MUCAMBO MULHOVO                                                          Â
Second
Applicant
SANIA NDLOVU                                                                                            Â
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                                                                                    Â
First
Applicant
                                                                                                                                        Â
ALTINAH HLUNGWANA                                                                         Â
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.Â
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]
Â
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;
(c)
is a
South African citizen
; and
(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]
Â
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.”
Â
(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.”
[8]
Similarly, in the
Mahlaule
matter, an
order was granted in the following terms:
“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.Â
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]
Â
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]
Â
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]
Â
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]
Â
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.Â
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]
Â
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.
class=MsoFootnoteReference>
style='font-size:13.0pt;font-family:"Times New Roman"'>[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]
Â
Here this concern was heightened by the fact that the applicants are indigent
persons who find themselves in dire circumstances.Â
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
—
. . .
(c) is a South African citizen . . . ”
[24]
(emphasis added)
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
 —
. . .
(c) is a South African
citizen”
[25]
(emphasis added).
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]
Â
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.Â
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.
2
8
  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]
Â
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]
Â
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]
Â
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]
Â
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]
Â
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.Â
The applicants also claimed to act in the public interest.Â
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]
Â
In this case, the status of the applicants as permanent residents is sufficient
to accord them standing to bring this challenge.Â
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 —
            . . .     Â
(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.
4
6
[41]     In this case we are
concerned with these intersecting rights which reinforce one another at the
point of intersection.Â
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]
Â
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.Â
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.Â
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]
Â
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]
Â
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.Â
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]
Â
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.Â
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]
Â
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.Â
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.Â
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]
Â
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.Â
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.Â
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.Â
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]
Â
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]
Â
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”.Â
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.Â
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.Â
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.Â
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]
Â
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.Â
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.Â
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 Amendment Act, making
, in the strict
sense, that Act the subject of constitutional challenge, the order regarding
this issue should be directed at the
Welfare Laws Amendment Act and
not the
Social Assistance Act.  For the same reasons as in the case of section 3(c), we
do not confirm the order of the High Court
and also find section 4(b)(ii) to be
unconstitutional.  The constitutionality of section 4B(b)(ii), as it appears in
section 3
of the
Welfare Laws Amendment Act is
discussed below.
[87]     Once the Court has found
constitutional inconsistency, it must declare invalidity to the extent of the
inconsistency.
[86]
Â
The Court may then make an order which is “just and equitable”.
[87]
  In this case, the impugned
provisions are inconsistent with the Constitution in that they exclude
permanent residents from access
to social security on the basis that they are
non-citizens.  The declaration of invalidity therefore does not affect the full
extent of the impugned provisions.  In such circumstances, the approach of this
Court has been to declare only the relevant part
of the impugned legislation
inconsistent with the Constitution.
[88]
[88]     When courts consider a
remedy following a declaration of invalidity of a statute, the question of
remedial precision,
which relates directly to respect for the role of the
legislature, is an important consideration.
[89]
Â
As permanent residents are not included in the allocation of social grants in
section 4(b)(ii) of the Act, remedying the defect
with the necessary precision
would require the reading in of the curing words, rather than striking down the
impugned provisions
and suspending the declaration of invalidity, as submitted
by the respondents.  Suspending the declaration of invalidity would,
in my
view, not constitute a “just and equitable order” as contemplated by section
172(1)(b) of the Constitution.
[90]
Â
There is every reason not to delay payment of social grants any further to the applicants
and those similarly situated.  Even
if this Court were to grant interim relief
to the applicants during the period of suspension, other permanent residents
would be
barred from applying until the end of the period of suspension.Â
Striking down without an order of suspension is not appropriate
either, as it
would make the grants instantly available to all residents including visitors
within South Africa who satisfy the
other criteria.
[89]     Reading in the words “or
permanent resident” after “South African citizen” in section 3(c) and “or
permanent
residents” after “South African citizens” in section 4(b)(ii) offers
the most appropriate remedy as it retains the right of
access to social
security for South African citizens while making it instantly available to
permanent residents.
The constitutionality of legislation
not yet in force
[90]     Section 81 of the
Constitution provides:
“A Bill assented to and signed by the
President becomes an Act of Parliament, must be published promptly, and takes
effect when
published or on a date determined in terms of the Act.”
The
Welfare Laws Amendment Act has
been signed by the President and is therefore an Act of Parliament within the
meaning of section 81 of the Constitution.  In terms
of section 172(2)(a) a
court may make an order concerning the constitutional validity of an Act of
Parliament.  Thus, the fact
that section 4B(b)(ii) has not yet been brought
into force should not remove it from the jurisdiction of this Court to
determine
its constitutionality. This is similar to the position in Canada
[91]
and the United States where a
provision can also be challenged if it  has not yet been brought into force.
[92]
[91] Similarly to section 3(c)
prior to amendment, section 4B(b)(ii) as it appears in
section 3
of the
Welfare
Laws Amendment Act is
inconsistent with the Constitution only because it
excludes permanent residents from the right of access to social security.  Because

this Court has yet to consider whether it can assess the constitutionality of a
provision that has yet to be brought into force,
the question of which remedies
can be granted in these circumstances has also not been considered.  Whether
words can be read
into such a provision was not raised nor argued before us.  However,
having found that reading in the curing words offers the most
appropriate
remedy in this matter, I can see no reason why this Court should be precluded from
also reading in the appropriate
words into section 4B(b)(ii).  Section 172(1),
which empowers courts to declare laws to be inconsistent with the Constitution,

does not distinguish between laws which have been brought into force and those
which have not.  Once a matter is properly before
this Court, there should be
no bar to the just and equitable remedies that can be granted, so long as this
Court is ever mindful
of its role in relation to Parliament. In the case of a
provision that has yet to be brought into force the legislative process
is complete
and we have a duly enacted Act of Parliament before us.  In the consideration
of a precise remedy, aimed at respecting
the role of the legislature, there
seems to be no material difference between this Court’s power to read words
into such a provision,
and its power in respect of provisions that have been
brought into force.
[92]     This Court has held that
any order relating to the constitutionality of law or conduct must have a
practical effect.
[93]
In the present matter, unlike in the cases of a challenge to repealed
legislation
[94]
or where there is no longer a live controversy between the parties,
[95]
an order in respect of section
4B(b)(ii) will have a practical effect, although the effect will be delayed.
Parliament has approved
the provision, the President must bring it into force
[96]
and at that point it will
impact on the lives of many people who are in a position similar to that of the
applicants. Having reached
this conclusion, the just and equitable order for
this Court to make would be to read the words “or permanent resident” into
the
section so as to make the grants available to permanent residents.
[93]  One further
matter needs to be addressed and that is whether this Court’s order reading
words into section 3(c) of the
Act can be formulated in a way that will survive
the bringing into force of section 3 of the Welfare Laws Amendment Act?  Although

the amendment made by the
Welfare Laws Amendment Act takes
the form of
substituting a new
section 3(c)
for the existing
section 3(c)
, the wording of
the existing section is retained apart form the old usage of referring only to
the male gender in statutes.  Both
genders are referred to in the new section.
Save for that, the language of the new section is identical to the language of
the
existing section.
[94] If this
Court’s order is formulated in a way that addresses only the wording of the
existing
section 3(c)
it would mean that if
section 3
of the
Welfare Laws
Amendment Act is
brought into force in its present form, the order made by this
Court in respect of social grants would be frustrated. The President
would face
the dilemma of either bringing into force a provision known to be
unconstitutional, or refraining from bringing
section 3
of the
Welfare Laws
Amendment Act into
force, although that is what the statute requires him to
do.  If this Court can formulate its order in a way that avoids this dilemma
I
have no doubt that it would be just and equitable to do so.
[95] Since the
amendment to the existing
section 3(c)
introduced by the
Welfare Laws Amendment
Act does
not change the substance of the existing section, or alter the words
that are the subject of the constitutional objection, it seems
to me that it
would be just and equitable for this Court to declare that the words “or
permanent resident” must be read into
the existing section, and into the
section as it will read once
section 3
of the
Welfare Laws Amendment Act is
brought into force.  To refrain from doing so would be to put form above
substance.  The result would be that the applicants
and others in their
position would not receive the full protection of the rights to which they are
entitled.  A just and equitable
order would therefore be to read in the words
“or permanent resident” after the word “citizen” into section 3(c) of the
Act
in its present form and in the form it will have when
section 3
of the
Welfare Laws
Amendment Act comes
into force.
[96]     Following the reading-in of
the above words, the sections will then read:
“
Section
3
[of the Social Assistance Act]:
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;
(c)
is a South African citizen
or permanent
resident
; and
(d)
complies with the prescribed conditions.” (Emphasis
added.)
“Section 3 [of the Social Assistance Act as it appears in the
Welfare Laws Amendment Act]:
Subject
to the provisions
of this Act, any person shall be entitled to the appropriate social grant if he
or she satisfies the Director-General
that he or she ­­—
(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;
(c)
is a South African citizen
or permanent
resident
; and
(d)
complies with the prescribed conditions.”
(Emphasis added.)
“
Section
4 [of the Social Assistance Act, as amended by the
Welfare Laws Amendment Act]:
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
or permanent residents
; and
(iii) comply with the prescribed conditions.” (Emphasis added.)
“Section 4B [as it appears in the
Welfare Laws Amendment Act]:
Subject
to the provisions
of this Act, any person shall be entitled to a care-dependency grant if that
person satisfied 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
or permanent residents
; and
(iii) comply with the prescribed conditions.” (Emphasis added.)        Â
Costs
[97]     The applicants have
successfully prosecuted an important constitutional claim and are entitled to
their costs.
The Order
[98]     The following order is made:
1.
In the
Khosa
matter, the order of
invalidity and striking down of section 3(c) of the Social Assistance Act 59 of
1992, prior to its amendment
by the
Welfare Laws Amendment Act 106 of 1997
, made
by the High Court is set aside and replaced with the following order:
1.1.
The omission of the words “or permanent resident” after the word
“citizen” from section 3(c) of the Social Assistance Act
59 of 1992,
prior to amendment by the
Welfare Laws Amendment Act 106 of 1997
is declared to
be inconsistent with the Constitution.
1.2.
To remedy the defect, section 3(c) of the Social Assistance Act
59
of 1992 prior to amendment by the
Welfare Laws Amendment Act 106 of 1997
is to
read as through the words “or permanent resident” appear after the word
“citizen”.
1.3.
The omission of the words “or permanent resident” after the word
“citizen” from that part of
section 3
of the
Welfare Laws Amendment Act 106 of
1997
which is to amend section 3(c) of the Social Assistance Act 59 of 1992 is
declared inconsistent with the Constitution.
1.4.
That part of
section 3
of the
Welfare Laws Amendment Act 106 of 1997
which is to amend section 3(c) of the Social Assistance Act 59 of 1992 is to be
read as though the words “or permanent resident”
appear after the word
“citizen”.
2.
In the
Mahlaule
matter, the order of
invalidity and striking down of section 4(b)(ii) of the Social Assistance Act
59 of 1992, as amended by the
Welfare Laws Amendment Act 106 of 1997
, made by
the High Court is set aside and replaced with the following order:
2.1.
The omission of the  words “or permanent resident” after the word
“citizen” from section 4(b)(ii) of the Social Assistance
Act
59 of 1992,
as amended by the
Welfare Laws Amendment Act 106 of 1997
, is declared to be
inconsistent with the Constitution.
2.2.
Section 4(b)(ii) of the Social Assistance Act
59 of 1992, as
amended, is to be read as though the words “or permanent residents” appear after
the word “citizens”.
3.
In the
Mahlaule
matter, the order of
invalidity and striking down of section 4B(b)(ii) of the Social Assistance Act
59 of 1992, as amended by the
Welfare Laws Amendment Act 106 of 1997
, made by
the High Court is set aside and replaced with the following order:
3.1.
The omission of the words “or permanent
resident” after the word “citizen” from that part of
section 3
of the
Welfare
Laws Amendment Act which
is to introduce
section 4B(b)(ii)
into the
Social Assistance Act 59 of 1992 is declared to be inconsistent with
the Constitution.
3.2.
That part of
section 3
of the
Welfare Laws Amendment Act 106 of 1997
which is to introduce
section 4B(b)(ii)
into the Social Assistance Act 59 of
1992 is to be read as though the words “or permanent residents” appear after
the word
“citizens”.
4.
The first and second respondents are ordered,
jointly and severally, to pay the costs of the confirmation proceedings.
Chaskalson CJ,
Langa DCJ, Goldstone J, Moseneke J, O’Regan J and Yacoob J concur in the
judgment of Mokgoro J.
NGCOBO J:
Introduction
[99]     The
question presented in these confirmatory proceeding
s
is whether the state can, consistent with the Constitution, exclude
non-citizens from the social welfare system that it has put
in place to meet
the needs of those who are unable to support themselves.  The social welfare
grants that are the subject matter
of the claims in these proceedings are
social grants, child support grants and care dependency grants.  At issue is
the constitutional
validity of sections 3(c)
[1]
,
4(b(ii)
[2]
and 4B(b)(ii)
[3]
of the Social Assistance Act 59 of 1992
[4]
which limit social grants, child support grants and care dependency grants
respectively, to South African citizens.
[100]   The applicants, who are
permanent residents, meet all the requirements for social welfare grants save
for the requirements
of citizenship.  They contend that the citizenship
requirement in sections 3(c), 4(b)(ii) and 4B(b)(ii) is inconsistent with the

Constitution.  For this contention, they rely, in particular, on the right to
have access to social security
[5]
,
to equality
[6]
,
to human dignity
[7]
,
to life
[8]
and to children’s rights.
[9]
[101]   This case presents a novel
question in the context of socio-economic rights.  In the past this Court has
been called
upon to evaluate programmes that the state has put in place in
order to determine whether they comply with the Constitution.
[10]
  In this case, the state has
put in place a scheme for social welfare assistance to meet its obligations
under the Constitution.Â
The contents of the scheme are not in issue.  The only
complaint is that access to the benefits system is limited to citizens only.Â
We
are therefore not concerned with what should be made available to those in need
but with who among the needy should receive
the social welfare benefits.
The problem of the governing
constitutional provisions
[102]   Two interesting and difficult
questions arise.  The first is conceptual:  which provisions of the
Constitution should
govern the constitutional challenge involved in this case?Â
The right of access to social security is no doubt implicated because
this case
is concerned with access to social security.  But the impugned provisions
exclude non-citizens from benefiting from
the scheme.  The exclusion of
non-citizens from the scheme manifestly implicates the right not to be
discriminated against.Â
This question was not addressed in argument.  It need
not be considered on this occasion.  The outcome would be the same under
either
constitutional provision.
[103]   My colleague, Mokgoro J, has approached the
matter on the footing that the right of access to social security governs the

question presented in this case.  There is much to be said for this view.  The
parties themselves have framed the legal issue
as involving the right of
permanent residents not to be excluded from the benefits system.  On this
logic, the primary right implicated
is guaranteed by section 27 of the
Constitution.  The constitutional validity of the exclusion must therefore be
examined by reference
to the right to have access to social security.  But, as
the main judgment acknowledges in this case, the result under either of
these
constitutional provisions would be the same.
[104]   That is not to say that the
other rights asserted by the applicants do not enter the picture.  The Bill of
Rights is
the cornerstone of our constitutional democracy and it “affirms the
democratic values of human dignity, equality and freedom.”
[11]
  The founding values will
inform most, if not all, of the rights in the Bill of Rights.  Socio-economic
rights must be understood
in the context of the founding values of our
Constitution.  Access to socio-economic rights is crucial to the enjoyment of
the
other rights mentioned in the Bill of Rights, in particular the enjoyment
of human dignity, equality and freedom.  A denial of
access to a social welfare
scheme may, as demonstrated by this case, therefore have an impact on more than
one constitutional right.Â
We are therefore concerned with a statute
implicating multiple constitutional rights that reinforce one another at their
point
of intersection.
The problem of methodology
[105]   But if section 27 governs the
present constitutional challenge, the problem of a methodological approach
arises.  The
obligations of the state under section 27(2) are limited to taking
“reasonable legislative and other measures.”  The main judgment
regards this as
an internal limitation on the right of access to social security.  I agree.Â
But is it possible to find that
a measure is reasonable within the meaning of
subsection 2 yet not reasonable and justifiable under section 36(1), the
limitation
clause?
[106]   Let us take a
non-controversial group, the temporary visitors, which the main judgment also
accepts can legitimately be
excluded from the social welfare benefits.  If
their exclusion would be reasonable under section 27(2), is the state required
to show also that their exclusion is reasonable and justifiable under section
36(1)?  This raises a number of related questions,
including, whether the
standard for determining reasonableness under section 27(2) is the same as the
standard for determining
reasonableness and justifiability under section 36(1)
and, if not, what is the appropriate standard for determining reasonableness

under section 27(2).  These questions were not addressed in argument and for
reasons that will appear below, they will not be
answered now.
[107]   Faced with these questions,
the main judgment adopts the attitude that the outcome would be the same
whether the enquiry
is to be conducted under section 27(2) or section 36(1).  I
prefer to approach the matter differently – by looking first to the
enquiry
required in section 27 and then, if necessary, to section 36.  I should add,
though, that the outcome would be the same
even if the enquiry were to begin
and end in section 27(2).
Is there a limitation of a
constitutional right?
[108]   For convenience, the relevant
provisions of section 27 are set out hereunder:
“(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.”
[109]   Section 27(1) and (2) must be
read together to give content to the right of access to social security.Â
Subsection 1
delineates the scope of the right by vesting the right in
everyone.
[12]
Â
In
Grootboom
, this Court held that subsection 1 of section 26 places a
negative obligation on the state to desist from preventing or impairing
the
right of access to adequate housing.  This applies to section 27 as well.
[110]   Subsection (2) imposes a
positive obligation upon the state “to devise a comprehensive and workable plan
to meet its
obligations in terms of the subsection.”
[13]
  However, this is a qualified
obligation, to “(a) take reasonable legislative and other measures; (b) to
achieve the progressive
realisation of the right; and (c) within available
resources”.
[14]
[111]   Section 27(1) vests a right
of access to social security in “everyone”.  The constitutional reference to “everyone”

implies that all in need must have access to the social welfare scheme that the
state has put in place.  Where some who are in
need are excluded, everyone does
not have access to the scheme.  The word “everyone” is a term of general import
and unrestricted
meaning.  It means what it conveys.  Once the state puts in
place a social welfare system, everyone has a right to have access
to that
system.
[112]   However, that does not mean
that there can be no limitation imposed on those who may have access to that
system.  The
Constitution contemplates that the rights in the Bill of Rights
“are subject to limitations contained or referred to in section
36, or
elsewhere in the Bill.”
[15]
Â
The right to have access to social security, which is a right contained in the
Bill of Rights, is therefore subject to limitation
in terms of section 36.
[113]   Confining social security to
citizens in the Act does constitute a limitation on the right of access to
social security
of those applicants who are not citizens.  What has to be
determined therefore is whether that limitation is reasonable and justifiable

in terms of section 36.
[16]
Â
And this question involves a proportionality analysis that takes into account
the nature of the right, the nature and extent
of the limitation, the
importance of the purpose of the limitation, the relationship between the
limitation and purpose and the
existence of less restrictive means to achieve
that purpose.
[17]
Is the limitation justifiable?
[114]   The importance of the right
in issue cannot be gainsaid.  It is a right that goes to one of the core values
of our Constitution
– human dignity.  The state has an obligation to ensure
that its citizens have access to basic needs such as food, clean water
and
shelter.  Social security is a vital component of the social system that is
available for those who cannot provide these basic
needs for themselves or
their families.
[115]   However, the limitation
imposed by the impugned statutory provisions on permanent residents is neither
absolute nor permanent.Â
It is true that only citizens can qualify for social
security under the Act.  But a permanent resident becomes eligible for
citizenship
after a fixed period of time.  Under
section 5(1)
of the
South
African Citizenship Act 88 of 1995
,
[18]
a permanent resident need only have resided continuously in the Republic for a
period of five years in order to qualify for citizenship
by naturalisation.
[116]   It is also true that the five
year waiting period could prove harmful to permanent residents who are unable
to provide
for themselves, just as it might prove harmful to a South African
citizen who has to wait for five years to reach the qualifying
age for a social
grant.  But recognising this possibility, the law also includes a provision for
such individuals to obtain benefits
during this interim period.  Under
section
5(9)(a)
of the
South African Citizenship Act, the
Minister
“may under exceptional circumstances grant
a certificate of naturalisation as a South African citizen to an applicant who
does
not comply with the requirements of the said subsection (1) relating to
residence or ordinary residence in the Republic.”
[117]   It is therefore plain from
these provisions that a permanent resident can get social benefits after five
years, but that
the state can waive the residential waiting period for
permanent residents in exceptional cases.  From this, it must follow that

permanent residents need not always wait for five years to become citizens and
thus become eligible for social security.
[118]   There is a further
consideration that is relevant in this regard.  It is this: under section 1 of
the Act, the Minister
for Welfare and Population Development, may, with the
concurrence of the Minister of Finance, extend the definition of a citizen
to
include non-citizens.
[19]
Â
The effect of this provision is that a permanent resident who is defined as a
citizen becomes eligible for social benefits under
the Act.  In the present
case, the Minister of Welfare and Population Development with the concurrence
of the Minister of Finance,
actually agreed to extend the definition of citizen
to include the applicants, except for the five whose applications were under

consideration at the time.  That offer was apparently rejected by the applicants.
[119]   Properly understood,
therefore, the limitation of rights involved in this case is of a limited
duration and is not absolute.Â
The denial of benefits lasts for a period of
five years, when a permanent resident has to wait to become a citizen by
naturalisation.Â
However, the Minister may either waive the five year waiting
period or extend the definition of a citizen to include a non-citizen.Â
Thus,
even the most destitute of permanent residents, for whom waiting would lead to
severe hardship, could have their condition
ameliorated.  The impugned
provisions do not therefore disadvantage permanent residents in a manner that
is beyond their control,
as the applicants suggest.
[120]   The state has advanced two
reasons for the limitation.  First, it says that it is consistent with a basic
principle that
a state is obliged to cater for the needs of its citizens.  The
Act is obviously designed to combat the very serious social ill
of poverty.Â
The state has committed a significant amount of resources to combat poverty in
this nation by increasing financial
expenditures.  The state, like all other governments,
has limited resources to confront this policy challenge.  The harsh reality
is
that there are simply insufficient resources available to cater for all the
various persons who might enter its borders seeking
assistance.
[121]   The second rationale that the
state offers in defence of its policy is that immigrants should be encouraged
to be self-sufficient.Â
Immigrants within our borders should not depend on
public resources to meet their needs but rather on their own capabilities and
the
resources of their families and their sponsors.  This must be seen against the
need to ensure that the availability of public
benefits does not constitute an
incentive for immigration to South Africa.  The legitimacy of a legislative
goal of discouraging
immigration that is motivated by the availability of the
welfare benefits, cannot be gainsaid.
[122]   It is true that the
immigration laws already prohibit the immigration of those who are likely to
become a burden to the
state purse.
[20]
Â
But that fact in itself does not detract from the importance of the purpose
advanced to defend the legislation at issue here.Â
Nor does it detract from the
clear relationship between the limitation and its purpose.  It is important to
bear in mind here
that those who, after immigrating to this country, find
themselves destitute and unable to provide for themselves are not completely

left in the cold.  They could be catered for through the extension of the
definition of a citizen or through the waiver of the
residence requirement for naturalisation.
[123]   So too is the fact that the
elderly, physically challenged and children will not be encouraged to work
because they are
simply unable to work.  As a matter of public policy, I cannot
say that the impugned provisions are unreasonable simply because
some
immigrants who are unable to work will not be induced to work to provide for
themselves.  In the legislature’s view, immigrants
might have to rely on their
families or sponsors rather than on the state purse.  The impugned provisions
are reasonably related
to that goal and there is a close relationship between
the limitation and its purpose.
[124]   South Africa is not the only
country that denies welfare benefits to non-citizens.  The United States,
Canada and Britain
are developed countries that have resources that far exceed
ours.  They may have constitutions and immigration laws different to
ours.  The
point is that South Africa is not alone in denying benefits to permanent
residents.  The rationale for this approach
includes, amongst other things, the
policy of encouraging the non-citizen’s self-sufficiency, preventing the
creation of incentives
for immigration, and preserving the public treasury by
confronting the rising costs of operating benefits programs.
[125]   There are important
differences between citizens and permanent residents.  In terms of the
Immigration Act, they
do not have the rights, privileges, duties and
obligations which a law or the Constitution explicitly ascribes to
citizenship.Â
Thus, they do not enjoy political rights, they do not enjoy the
right to choose their trade, occupation or profession freely.Â
Before a
certificate of naturalisation is issued, a permanent resident is required to
make a declaration of allegiance to the Republic.
[126]   It is true that permanent
residents enjoy a right to work in South Africa, the right to own houses, the
obligation to
pay taxes, and the responsibility to contribute to the economic
growth of South Africa.  But some of these privileges and duties
also apply to
another group of non-citizens – work permit holders.  Just as permanent
residents, work permit holders may establish
a home in South Africa for their
families; indeed, members of this group may well elect to become permanent
residents.  Both groups
of non-citizens are under the Constitution entitled to
socio-economic rights.  The crucial question is whether social security

benefits should be made available to every person who is within our borders.Â
In my view, the state has successfully advanced
compelling reasons for limiting
the benefits to citizens.  The need to reduce the rising costs of operating
social security systems,
the need to prevent the availability of social
security benefits from constituting an incentive for immigration and the need
to
encourage the immigrants to be self-sufficient.
[127]   The state is justifiably
concerned about the impact of providing social security benefits to
non-citizens on the state
finance and its ability to provide expenditure on
other socio-economic rights.  Mr Kruger, the Chief Director of Social Services

in the National Treasury, tells us that the war on poverty has led to a
substantial and rapid increase in expenditure.  Expenditure
on social grants
has increased from R16.1 billion to R26.2 billion and this is expected to
increase to R44.6 billion over the next
three years.  These figures show an
increasing demand for social grants.
[128]   There is a paucity of
information concerning the number of persons who might qualify for grants if
they are extended to
permanent residents.  This is not surprising.  Mr Kruger
however estimates that the annual costs of including permanent residents
could
range between R243 million and R672 million.  Policymakers have the expertise
necessary to present a reasonable prediction
about future social conditions.Â
That is precisely the kind of work that policymakers are supposed to do.Â
Unless there is evidence
to the contrary, courts should be slow to reject
reasonable estimates made by policymakers.
[129]   The fact that the increase is
not huge is not relevant.  The fact of the matter is that there will be an
increase; how
huge that increase will be, will be determined by an increase in
the number of permanent residents.  What makes it difficult to
predict the
number of persons who might qualify, is that there is no clear information
about the number of people who might qualify
under a more generous immigration
regime.  And if there is merit in the possibility that the state could become a
magnet for new
immigrants seeking permanent resident status, estimating the
likely size of the pool of grant applicants and an accurate estimate
of the financial
burden would be even more arduous a task.
[130]   There is a further reason
which is implicit in the reasons advanced by the state.  The state’s policy
encourages the
naturalisation process.  As pointed out earlier, temporary and
permanent resident status are both precursors to the full commitment
of
citizenship.
[21]
Â
By crafting the benefits rule so that only citizens qualify, the statute
provides a legitimate incentive for an alien to become
a citizen.  The
unequivocal declaration of loyalty and commitment that an alien can give to a
country is through naturalisation
and taking the oath of allegiance.  After
this a permanent resident becomes a citizen and thus qualifies for social
security benefits.
[131]   I accept that the applicants
were entitled to test the validity of the impugned provisions.  However, one
should not
lose sight of the fact that the applicants have lived in this
country since the 1980s.  They, therefore, qualify for naturalisation
and
acquisition of citizenship in South Africa.  None have applied, nor have any
advanced reasons why they have not applied.Â
Had they applied for citizenship
or even sought an exception, they would have qualified for social security
benefits under the
statutes.  I draw attention to this fact to illustrate the
limited nature and impermanence of the limitation involved in this case.Â

Unlike the case of minors, these adult non-citizens are quite capable of
obtaining citizenship but have chosen not to exercise
their option.
[132]   The state’s management and
control of the immigration process is a legitimate purpose.  No careful
immigration policy
can foresee that an immigrant once admitted will fall upon
hard times and thus become unable to provide for him or herself.  The
policy of
the Act is to admit only those who are self-sufficient and will not be a burden
on the state.  This is in any event
a temporary phase, for after they have been
permanent residents for five years, they may qualify for citizenship.  However,
the
immigrants who become destitute are not abandoned to destitution.  As
pointed out earlier, they can seek designation as “citizens”
for the purpose of
qualifying for benefits under the Act or request that the five-year residence
requirement be waived and thus
expedite their naturalisation under the
South
African Citizenship Act and
ultimately, entitlement to social welfare benefits.
[133]   It is inconceivable that the
statutory exceptions that would allow a permanent resident to have access to
social security
benefits would be invoked in circumstances where there is a
sponsor who is able and willing to provide for the permanent resident.Â
It is
only when the permanent resident has no sponsor or is unable to support him or
herself, that the statutory exceptions could
be invoked.  Properly understood,
therefore, the Act requires a permanent resident to look in the first instance
to his or her
own resources, or his or her sponsor for support and permits a
claim on the security system only if that fails.  The main judgment
accepts
that a statute which requires a permanent resident to look to the sponsor or
his or her own resources in the first place
and permits a claim on the social
security system only if that fails, is not unreasonable.
[134]   Weighing up the competing
considerations, in particular, having regard to the fact that the limitation in
issue here is
neither absolute nor permanent, I am satisfied that the
limitation imposed by section 3 of the Act is reasonable and justifiable
under
section 36(1) of the Constitution.
[135]   However, the same cannot be
said of the limitation imposed by sections 4(b)(ii) and 4B(b)(ii) of the Act.Â
Foster child
grants under section 4A are not subject to a citizenship
requirement.  Yet the child support grants under section 4 and the
care-dependency
grants under section 4B are subject to a citizenship
requirement.  The children referred to in sections 4(b)(ii) and 4B(b)(ii)
may be
South African citizens.  It matters not according to these provisions.  What
matters is whether their primary caregiver
or parent is a South African
citizen.
[136]   These provisions therefore
deny the assistance to some citizens, while affording benefits to other
citizens.  What is
more, they fail to take sufficient account of section 28(2)
of the Constitution.  That section reminds us that “[a] child’s
best interests
are of paramount importance in any matter concerning the child.”  The exclusion
of the children from these benefits
cannot therefore be reasonable and
justifiable in terms of section 36.  The respondents very properly conceded
that such exclusion
cannot be justified.
[137]   But, there is a problem with
section 4B(b)(ii).  That problem arises because that section will be introduced
by
section 3
of the
Welfare Laws Amendment Act 106 of 1997
.Â
Section 3
has not
yet been brought into operation.  Does the fact that it has not yet been
brought into operation preclude a court from
pronouncing on its constitutional
validity?
[138]   Section 172(2)(a) of the
Constitution authorises a high court to “make an order concerning the
constitutional validity
of an Act of Parliament”.  The
Welfare Laws Amendment
Act, which
introduces
section 4B(b)(ii)
is “an Act of Parliament.”  In terms of
section 81 of the Constitution, “[a] Bill assented to and signed by the
President
becomes an Act of Parliament”.  That it has not taken effect matters
not.  Accordingly, I agree with the main judgment that
this Court has
jurisdiction to determine the constitutional validity of section 4B(b)(ii).
[139]   Once it is accepted that this
Court has jurisdiction to consider the constitutional validity of section
4B(b)(ii), it
follows that this Court has the power not only to declare that
provision unconstitutional, but also to grant “any order that is
just and
equitable” under section 172(1) of the Constitution.  I agree with the main
judgment that the appropriate remedy would
be to read the words “permanent
resident” into section 4B(b)(ii).  The same goes for section 4(b)(ii).
[140]   In the result, I concur in
the conclusion reached by Mokgoro J in relation to sections 4(b)(ii) and
4B(b)(ii) and in the
order that she proposes in that regard.  However, I am
unable to concur in the result reached by Mokgoro J in relation to section
3(c)
and in the order that she proposes in that regard.  In my view, the order of
invalidity in relation to section 3(c) should
not be confirmed.  I would make
no order for costs.
Madala
J concurs in the judgment of Ngcobo J
For the
applicants:                 P Kennedy SC instructed by the Legal Resources
Centre, Pretoria.
For the
respondents:             MTK Moerane SC and SA Nathi instructed by the State
Attorney, Cape Town.
[1]
Case number 25455/02.
[2]
Case
number 25453/02.
[3]
South Africa granted a series of amnesties and concessions as
exemptions to the immigration process in terms of section 28(2) of
the Aliens
Control Act.  In October 1993, a tripartite agreement was signed between South
Africa, the United Nations High Commissioner
for Refugees and the Mozambican
Government granting formal refugee status to those Mozambicans who had fled to
South Africa as
a result of the civil war in Mozambique.  In October 1995, the
South African government granted an amnesty to Mozambican miners
permitting
them to apply for permanent residence status.  In July 1996, the South African
government granted amnesty to nationals
of the Southern African Development
Community, which included Mozambique. Finally, in December 1996, the South
African government
permitted all Mozambicans who wished to remain in South
Africa and who were not covered by the previous amnesties to apply for
permanent residence status.
[4]
Section 1 of the Act defines a “care-dependent child” as “a child
between the ages of one and 18 years who requires and receives
permanent home
care due to his or her severe mental or physical disability”.
[5]
Government Gazette 18771 GN R418, 31 March 1998.
[6]
Section 3 of the Act will be substituted by
section 3
of the
Welfare Laws Amendment Act, a
provision which has yet to be put into operation
by proclamation.
[7]
Section 4 of the Act has been substituted by section 3 of the Welfare
Laws Amendment Act.  Subsection 4(b)(ii) of the Act was brought
into operation on
1 April 1998 by proclamation in Government Gazette GN R27 18731, 13 March 1998.
[8]
Section 4B(b)(ii) will be introduced by
section 3
of the
Welfare
Laws Amendment Act in
that part of the section relating to care-dependency
grants and has also yet to be put into operation by proclamation.Â
9
See
section 172(2)
read with 167(5) of the Constitution.
[9]
Dawood and Another v Minister of Home Affairs and Others,
Shalabi and Another v Minister of Home Affairs and Others, Thomas and Another
v
Minister of Home Affairs and Others
[2000] ZACC 8
;
2000 (3) SA 936
(CC);
2000 (8) BCLR
837
(CC) at para 17.
[10]
Zantsi v Council of State, Ciskei and Others
[1995] ZACC 9
;
1995 (4) SA 615
(CC);
1995 (10) BCLR 1424
(CC) at para 5.
[11]
Id
[12]
Minister of Justice v Ntuli
[1997] ZACC 7
;
1997 (3) SA
772
(CC);
1997 (6) BCLR 677
(CC)
at
para
41
;
S v
Ntsele
[1997] ZACC 14
;
1997 (2) SACR 740
(CC);
1997 (11) BCLR 1543
(CC) at
para
13
;
Parbhoo
and
Others
v
Getz NO
and Another
1997 (4) SA 1095
(CC);
1997 (10) BCLR 1337
(CC) at
para
5
;
S v Mello
and Another
[1998] ZACC 7
;
1998 (3) SA 712
(CC);
1998 (7) BCLR 908
(CC)
at
para
11
;
National Coalition for Gay and Lesbian
Equality
and Others
v Minister of Home Affairs
and
Others
[1999] ZACC 17
;
2000
(2) SA 1
(CC);
2000 (1) BCLR 39
at
para
7
;
Dawood
above
n 9 at para 17.
[13]
Id
Dawood
.
Â
[14]
National Coalition
above n 12
at
para
7
.
[15]
Id at para 11;
In re Certain Amicus Curiae Applications:
Minister of Health and Others v Treatment Action Campaign and Others
2002 (5)
SA 713
(CC);
2002 (10) BCLR 1028
(CC) at para 7.
[16]
See para 14 above.
[17]
Janse van Rensburg NO
and Another
v Minister of
Trade and Industry
and Another NNO
2001 (1) SA 29
(CC);
2000 (11) BCLR 1235
(CC)
at par
a
5.
Â
See also
President, Ordinary Court Martial and Others v Freedom of
Expression Institute and Others
[1999] ZACC 10
;
1999 (4) SA 682
(CC);
1999 (11) BCLR 1219
(CC) at para 14.
[18]
Para 7 above.
[19]
Para 8 above.
[20]
Para 7 above.
[21]
Para 8 above.
[22]
See above n 9 at para 12.
[23]
See above n 6.
[24]
Section 3 of the Act prior to amendment by the
Welfare Laws Amendment
Act.
>
[25]
Section 3 of the Act
after amendment by the
Welfare
Laws Amendment Act
>.
[26]
See above n 8.
28
See
Satchwell v President of the Republic of South Africa and
Another
[2003] ZACC 2
;
2003 (4) SA 266
(CC);
2002 (9) BCLR 986
(CC) at para 5.
[27]
Regulation 9
requires applicants to submit an identity document
issued in South Africa with a thirteen-digit identity number.  In terms of
sections 4
and
8
of the now repealed Identification Act 72 of 1986 and sections
3, 7 and 8 of the replacement
Identification Act 68 of 1997
, permanent
residents who are non-South African citizens can be (and are) issued with South
African identity documents containing
thirteen-digit identity numbers except
that the last three digits of that number indicate that the person is not a
South African
citizen.
[28]
Pharmaceutical Manufacturers Association of SA and Another: In
re Ex Parte President of the Republic of South Africa and Others
[2000] ZACC 1
;
2000 (2)
SA 674
(CC);
2000 (3) BCLR 241
(CC);
In re: Constitutionality of the
Mpumalanga Petitions Bill,
2000
2002 (1) SA 447
(CC);
2001 (11) BCLR 1126
(CC). See also
Ex Parte Minister of Safety and Security and Others: In re S
v Walters and Another
[2002] ZACC 6
;
2002 (4) SA 613
(CC);
2002 (7) BCLR 663
(CC)
at para 71.  In
Pharmaceutical Manufacturers
at paras 76 and 85-6 and
Walters
at para 73, this Court further held that this is a public power which the
President is obliged to exercise lawfully and for the purpose
for which it was
given in the enactment and that the exercise of this power will be reviewable
by the courts in certain circumstances.
[29]
Id
Walters
at paras 73-5.
[30]
President, Ordinary Court Martial
above n 17.
[31]
Id at para 14.
[32]
Id at para 16.
[33]
Id at paras 16-18.
[34]
[2001] ZACC 23
;
2001 (3) SA 925
(CC);
2001 (9) BCLR 883
(CC) at para 11.
[35]
In the case of
JT Publishing (Pty) Ltd and Another v Minister of
Safety and Security and Others
[1996] ZACC 23
;
1997 (3) SA 514
(CC);
1996 (12) BCLR 1599
(CC) at para 15 Didcott J made reference to the well-established and uniformly
observed judicial policy directing courts not to
exercise their discretion in
favour of deciding points that are merely abstract, academic or hypothetical.
[36]
The effect of these provisions is that, in terms of section
4(b)(ii) of the Act, although a child is a South African citizen, because
the
primary care-giver is a non-South African citizen the child cannot have access
to a child-support grant.  Similarly, the effect
of section 4B(b)(ii) when it
is introduced will be that a child, although a South African citizen, will be
denied access to a care-dependency
grant because his or her parent is a
non-South African citizen.
[37]
The definition of “South African citizen” in section 1 of the Act
contemplates that the Minister of Welfare and Population Development,
with the
concurrence of the Minister of Finance, may by notice in the Gazette extend the
category of South African citizens for
purposes of the Act to members of a
group or category of persons defined in that notice, which is to be published
in the Gazette.
[38]
See above n 3.
[39]
President, Ordinary Court Martial
above n 17 at para 14.
[40]
Â
Section
38(a)-(e) of the Constitution entitles the following persons to approach a
competent Court for the enforcement of rights
contained in the Bill of Rights:
            “(a) anyone acting in their own interest;
  (b) anyone acting on behalf of another person who
cannot act in their own name;
  (c) anyone acting as a member of, or in the interest
of, a group or class of persons;
  (d) anyone acting in the public interest; and
  (e) an association acting in the interest of its
members.”
[41]
The respondents relied on the fact that the declaration of
invalidity sought in the High Court had a clearly defined group of persons

whose names were attached to the applicants’ notice of motion and could
therefore not be extended to a ‘nameless’ group of
persons.
[42]
South African National Defence Union v Minister of Defence and
Another
[1999] ZACC 7
;
1999 (4) SA 469
(CC);
1999 (6) BCLR 615
(CC) at para 4.
[43]
Section 1 of the Constitution states in the relevant part:
“The
Republic of South Africa is one sovereign democratic state founded on the
following values:
(a) Human
dignity, the achievement of equality and the advancement of human rights and
freedoms.”
46
2001 (1) SA 46 (CC); 2000 (11) BCLR 1169 (CC).
[44]
S v Makwanyane
and Another
[1995] ZACC 3
;
1995 (3) SA 391
(CC);
1995
(6) BCLR 665
(CC) at para 327.
[45]
Above n 9 at para 35.
[46]
Ex Parte Chairperson of the Constitutional Assembly: In re
Certification of the Constitution of the Republic of South Africa,
[1996] ZACC 26
;
1996
1996
(4) SA 744
(CC);
1996 (10) BCLR 1253
(CC) at paras 76-8;
Soobramoney v
Minister of Health, KwaZulu-Natal
[1997] ZACC 17
;
1998 (1) SA 765
(CC);
1997 (12) BCLR 1696
(CC);
Grootboom
above n
Error! Bookmark not defined.
;
Minister of Health and Others v Treatment Action Campaign and Others
(2),
2002 (5) SA 721; 2002 (10) BCLR 1033 (CC).
[47]
Id
Soobramoney
at para 22;
Grootboom
at para 74;
Treatment
Action Campaign
at paras 23 and 39.
[48]
Section 26 provides:
“
26. Housing
(1)
Everyone has the right to
have access to adequate housing.
(2)
The state must take
reasonable legislative and other measures, within its available resources, to
achieve the progressive realisation
of this right.
(3)  No one may be evicted from their home,
or have their home demolished, without an order of court made after considering
all
the relevant circumstances. No legislation may permit arbitrary evictions.”
[49]
Section 25(5) of the
Constitution provides:
“The state must take reasonable legislative
and other measures, within its available resources, to foster conditions which
enable
citizens
to gain access to land on an equitable basis.” (Emphasis
added.)
[50]
 Some
rights in the Bill of Rights such as political rights in section 19;
citizenship rights in section 20; the right to a passport
and to enter, remain
and reside in the Republic in sections 21(3) and 21(4); freedom of trade,
occupation and profession in section
22; and certain labour rights in section
23 are qualified as being available to smaller groups of people than “everyone”.
[51]
Above n 44 at para 9;
S v Mhlungu and Others
[1995] ZACC 4
;
1995 (3) SA 867
(CC);
1995 (7) BCLR 793
(CC) at para 8.
[52]
Section 7(1) of the Bill
of Rights provides:
“[The] Bill
of Rights is a cornerstone of democracy in South Africa.  It enshrines the
rights of
all people in our country
and affirms the democratic values of
human dignity, equality and freedom.” (Emphasis added.)
[53]
Commissioner for Inland Revenue v NST Ferrochrome (Pty) Ltd
1999 (2) SA
228
(T)
a
t 232
.
[54]
Above n
Error! Bookmark not defined.
at
para 41.
[55]
Id at para 44.
[56]
The respondents referred to the position in the United States,
Canada and the United Kingdom.
[57]
See section 5(9).
[58]
See para 65 below.
[59]
See, for example,
Mathews v Diaz
426 US 67
, 78 (1976).  See
also para 66 below.
[60]
S
ection 25(1).
[61]
Section 28(c)
of the
Immigration Act.
class=MsoFootnoteReference>
>
[62]
Section 9(2)
and
9
(3)(d) of the
Immigration Act.
class=MsoFootnoteReference>
lang=EN-ZA style='font-size:10.0pt;font-family:"Times New Roman"'>[63
]
Larbi-Odam and Others v Member of the Executive Council for
Education (North-West Province) and Another
[1997] ZACC 16
;
1998 (1) SA 745
(CC);
1997 (12)
BCLR 1655
(CC) at para 24.
[64]
S v Tsotsobe
and Others
1983 (1) SA 856
(A) at 866E;
S
v Zwane
and Others
1989 (3) SA 253
(W) at 256I.
[65]
[1999] USCA7 490
;
189 F.3d 598
(7th Cir 1999).
[66]
Id at 609.
[67]
City Council of Pretoria v Walker
[1998] ZACC 1
;
1998 (2) SA 363
(CC);
1998
(3) BCLR 257
(CC) at para 27.
[68]
Bel Porto School Governing Body and
Others v Premier, Western Cape and Another
[2002] ZACC 2
;
2002 (3) SA 265
(CC);
2002 (9) BCLR 891
(CC) at para 46.
[69]
Section
9(3)
provides:
“The state may not unfairly
discriminate directly or indirectly against anyone on one or more grounds,
including race, gender,
sex, pregnancy, marital status, ethnic or social
origin, colour, sexual orientation, age, disability, religion, conscience,
belief,
culture, language and birth.”
[70]
Section
9(5)
states
:
“Discrimination on one or more
of the grounds listed in subsection (3
)
is unfair unless it is established that the
discrimination is fair.”
S
ee also
Harksen v Lane
NO
and Others
[1997] ZACC 12
;
1998 (1) SA 300
(CC);
1997 (11) BCLR 1489
(CC) at
para
53.
[71]
1997
(4
)
SA 1 (CC)
[1997] ZACC 4
; ;
1997 (6) BCLR
708
(CC) at paras
41-3.
[72]
2001 (1) SA 1
(CC);
2000 (11) BCLR 1211
(CC)
at para 27
.
[73]
Above n 71 at para 52.
[74]
Above n 66.
[75]
Id
[76]
Id
at para 20.
[77]
Above n 72.
[78]
Harksen
above n 73 at para 51.
[79]
National Coalition
above n 12 at para 41.
[80]
[1996] ZACC 9
;
1996 (4) SA 197
(CC);
1996 (6) BCLR 752
(CC) at para 42.
[81]
Rosberg
“The Protection of Aliens from Discriminatory Treatment by the National
Government” (1977)
Supreme Court Review
275 at 311.
[82]
Chang
“Immigrants Under the
N
ew
W
elfare
L
aw:
A
C
all for
U
niformity,
A
C
all for
J
ustice”
(1977)
45
U
niversity
of
C
alifornia
L
os
A
ngeles
L
aw
R
eview
205 at 223.
[83]
To
use the terminology from
Plessy v Ferguson
[1896] USSC 151
;
163 US 537
, 551 (189
6
) and
Brown
v Board
of Education
347 US 483
, 494
(1954), the
exclusion of
foreigners
from state welfare program
me
s not only
operates to stamp
them
with a “badge of inferiority”
,
but
marginalises
them
by sending a message of second-class status in
the communities in which they reside.
[84]
Section 28(1)(c)
reads:
(1)
Every child has the
right —
. . .
(c) to basic nutrition, shelter, basic health care
services and social services.”
[85]
See Van der Walt
The Constitutional Property Clause
(Juta, 1997) 92-5; Rautenbach
General Provisions of the South African Bill
of Rights
(Butterworths, 1995) 84-5 and 106-07; De Waal et al
The Bill
of Rights Handbook
4 ed (Juta, 2001) 451; Liebenberg “Socio-economic Rights”
in Chaskalson et al
(eds)
Constitutional Law of South Africa
(Juta,
1999) 41-7 to 41-8; De Vos “Pious Wishes or Directly Enforceable Human Rights?
Social and Economic Rights in South Africa’s
1996 Constitution”
(1997) 13
SAJHR
67
at 79-80; Pieterse “Towards a Useful Role for Section 36 of the
Constitution in Social Rights Cases?
Residents of Bon Vista Mansions v
Southern Metropolitan Local Council
” (2003) 120
SALJ
41.
[86]
Section 172(1)(a) of the Constitution provides:
“(1) When
deciding a constitutional matter within its power, a court —
     (a) must declare that any law or
conduct that is inconsistent with the Constitution        is invalid to the
extent
of its inconsistency.”
[87]
Section 172(1)(b) reads:
          Â
“(1)When deciding a constitutional matter within its
power, a court —
                 Â
(b) may make any order that is just and equitable, including —
(i) an order limiting the retrospective effect of the
declaration of invalidity; and
(ii) an order suspending the declaration of invalidity
for any period and on any conditions, to allow the competent authority to

correct the defect.”
[88]
National Coalition
above n 12 at para 87.
[89]
Id
[90]
Above n 90.
[91]
In
National Citizens’ Coalition Inc v Attorney-General for
Canada
(1985) 11 DLR (4d) 481 the Supreme Court of Canada considered the
constitutionality of certain provisions of the Canada Elections
Act, even
though the law had not yet come into force.
[92]
Commonwealth of Pennsylvania v West Virginia
[1923] USSC 170
;
262 US 553
, 593 (1923); Tribe
American Constitutional Law
Vol 1 3 ed (Foundation
Press, 2000) at 337.
[93]
President, Ordinary Court Martial
above n 17 at paras 16-8;
Independent
Electoral Commission v Langeberg Municipality
above n 36 at para 11.
[94]
See
President, Ordinary Court Martial
above n 17.
[95]
See
Independent Electoral Commission v Langeberg Municipality
above n 36.
[96]
Walters
above n 30 at para 73.
[1]
Section 3 provides:
“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;
(c)           is
a South African citizen; and
(d)           complies
with the prescribed conditions.”
[2]
Section 4 provides:
“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.”
[3]
Section 4B provides:
“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 the parent
and his or her child, are South African citizens;  and
(iii)          comply with the prescribed conditions.”
[4]
Section 4B(b)(ii) will be introduced by
section 3
of the
Welfare
Laws Amendment Act 106 of 1997
. See n 8 of the main judgment.
[5]
Section 27
provides:
“(1)  Everyone
has the right to have access to—
(a)           health care services, including
reproductive health care;
(b)           sufficient food and water; and
(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.
(3)           No
one may be refused emergency medical treatment.”
[6]
Â
Section 9
provides:
“(1)         Everyone is equal before the
law and has the right to equal protection and benefit of the law.
. . .
(3)           The state may not unfairly
discriminate directly or indirectly against anyone on one or more grounds,
including
race, gender, sex, pregnancy, marital status, ethnic or social
origin, colour, sexual orientation, age, disability, religion, conscience,

belief, culture, language and birth.
. . .
(5)           Discrimination on one or more
of the grounds listed in subsection (3) is unfair unless it is established
that
the discrimination is fair.”
[7]
Â
Section 10
provides:
“Everyone
has inherent dignity and the right to have their dignity respected and
protected.”
[8]
Section 11
provides:
“Everyone
has the right to life.”
[9]
Section 28
provides:
“(1)         Every
child has the right—
(a)           . . .
(b)           to family care or parental
care, or to appropriate alternative care when removed from the family
environment;
(c)           to basic nutrition, shelter, basic
health care services and social services;
(d)           to be protected from maltreatment,
neglect, abuse or degradation;
(e)           to be protected from exploitative labour
practices;
. . .
(2)           A child’s best interests are
of paramount importance in every matter concerning the child.
(3)           In
this section “child” means a person under the age of 18 years.”
[10]
See
Government of the Republic of South Africa v Grootboom
2001 (1) SA 46
(CC);
2000 (11) BCLR 1169
(CC);
Minister of Health and Others
v Treatment Action Campaign and Others
(2), 2002 (5) SA 721; 2002 (10) BCLR
1033 (CC).
[11]
Section 7(1) of the Constitution.
[12]
Grootboom
above n 10 at para 34.
[13]
Grootboom
above n 10 at para 38.
[14]
Id
[15]
Section 7(3) of the Constitution.
[16]
Section 36 provides:
“(1)         The rights in the Bill of
Rights may be limited only in terms of law of general application to the extent

that the limitation is reasonable and justifiable in an open and democratic
society based on human dignity, equality and freedom,
taking into account all
relevant factors, including—
(a)           the nature of the right;
(b)           the importance of the purpose of the
limitation;
(c)           the nature and extent of the limitation;
(d)           the relation between the limitation and
its purpose; and
(e)           less restrictive means to achieve the
purpose.
(2)           Except as provided in
subsection (1) or in any other provision of the Constitution, no law may limit
any
right entrenched in the Bill of Rights.”
[17]
S v Manamela (Director-General of Justice intervening)
[2000] ZACC 5
;
2000
(3) SA 1
(CC);
2000 (5) BCLR 491
(CC) at para 32.
[18]
  Section 5(1) provides:
“The
Minister may, upon application in the prescribed form, grant a certificate of
naturalisation as a South African citizen to
any alien who satisfies the
Minister that—
(a)           he
or she is not a minor; and
(b)           he or she has been lawfully
admitted to the Republic for permanent residence therein; and
(c)           he or she is ordinarily
resident in the Republic and that he or she has been so resident for a
continuous
period of not less than one year immediately preceding the date of
his or her application, and that he or she has, in addition,
been resident in
the Republic for a further period of not less than four years during the eight
years immediately preceding the
date of his or her application; and
(d)           he
or she is of good character; and
(e)           he or she intends to continue
to reside in the Republic or to enter or continue in the service of the
Government
of the Republic or of an international organisation of which the
Government of the Republic is a member or of a person or association
of persons
resident or established in the Republic; and
( f )          he or she is able
to communicate in any one of the official languages of the Republic to the
satisfaction
of the Minister; and
(g)           he or she has an adequate
knowledge of the responsibilities and privileges of South African citizenship.”
[19]
The relevant part of section 1 provides:
“‘South
African citizen’ includes any person who—
. . .
(b)           is a member of a group or
category of persons defined by the Minister, with the concurrence of the
Minister
of Finance, by notice in the Gazette”.
[20]
The permanent residence permit is now
governed by
sections 26
and
27
of the
Immigration Act 13 of 2002
.  Both those
sections authorise the issue of permits to foreigners who have “received an
offer for permanent employment” or
who are spouses or children under the age of
21, of such a foreigner.  In addition,
section 30
provides that a person who is
“likely to become a public charge” may be declared an undesirable foreigner.
[21]
 In terms of
section 26
of the
Immigration Act, a
holder of
a work permit who has a permanent offer for employment may be issued with a
permanent residence permit.  In terms of
section 5
of the
South African
Citizenship Act, a
permanent resident qualifies for citizenship after five
years.