31:
351:) were not present or represented at the hearing. The High Court therefore dealt with the matters as unopposed applications and judged the relevant provisions of the Social Assistance Act to be unconstitutional; those provisions stood to be struck down. The High Court's order of constitutional invalidity was referred for confirmation to the
383:
provides that "Everyone has the right to have access to— social security, including, if they are unable to support themselves and their dependants, appropriate social assistance," and the court held that the word "everyone" should be read literally, entailing that permanent residents were bearers of
438:
concurred. Ngcobo held that it was constitutional for the state to exclude permanent residents from access to old-age grants, and that such exclusion constituted a justifiable limitation on section 27(1)(c) rights in pursuit of legitimate policy purposes. However, Ngcobo concurred in the majority's
418:
instantly to permanent residents, while remaining available to citizens. Importantly, the
Constitutional Court also differed from the High Court in considering the situation of permanent residents as distinct from that of other immigrant populations; it did not endorse the High Court's holding that
413:
policy considerations, but the court was not persuaded that these factors sufficed to justify the limitation imposed on the section 27(1)(c) right of permanent residents. The Social
Assistance Act was therefore inconsistent with the Constitution insofar as it excluded permanent residents from the
417:
However, the
Constitutional Court amended the order of the High Court in respect of remedies. Instead of striking down the relevant provisions of the Social Assistance Act, it ordered that permanent residents should be read into the provisions so that access to social grants would be extended
394:, according to which the unfairness of a discriminatory system must be assessed primarily with reference to the system's impact on the person discriminated against. In this case, the impact of the discriminatory exclusion was also offensive to the
384:
the right to social security. The court also found that the exclusion of permanent residents from the welfare system constituted unfair discrimination and therefore infringed upon the
304:
status in South Africa in terms of exemptions granted to eligible
Mozambican citizens under the Aliens Control Act, 1991. Each was indigent and would ordinarily be eligible for
572:
557:
385:
281:
440:
406:
376:
340:
277:
371:, the Constitutional Court upheld the finding of unconstitutionality, holding that the relevant provisions of the Social Assistance Act were inconsistent with the
336:
567:
321:
317:
313:
305:
258:
170:
499:"Charity Begins – But Does Not End – At Home: Khosa v Minister of Social Development; Mahlaule v Minister of Social Development 2004 6 BCLR 569 (CC)"
562:
402:
439:
order with respect to child-support grants and child-dependency grants: the exclusion could not be justifiable in the case of children, because
312:. The applicants therefore challenged the constitutionality of the Social Assistance Act, 1992 insofar as it reserved certain social grants –
352:
250:
41:
207:
538:
390:
348:
344:
52:
Khosa and Others v
Minister of Social Development and Others; Mahlaule and Another v Minister of Social Development and Others
246:
Khosa and Others v
Minister of Social Development and Others, Mahlaule and Another v Minister of Social Development and Others
372:
332:
166:
97:
380:
273:
219:
444:
410:
409:. The respondents had outlined several reasons for the existing welfare policy, including budgetary constraints and
325:
93:
309:
262:
265:. The court found that provisions of the Social Assistance Act, 1992 were unconstitutional on that basis.
355:, where the matter was heard in May 2003 and where the applicants were represented by Paul Kennedy SC and the
30:
494:
356:
293:
227:
297:
202:
301:
254:
324:– for South African citizens. Although the applicants lodged two independent applications in the
520:
129:
121:
510:
476:
141:
464:
280:
socioeconomic right to access social security and social assistance, as well as from the
149:
431:
368:
269:
233:
145:
137:
551:
435:
133:
268:
The matter was decided on 4 March 2004, with the court split seven to two; Justice
77:
542:(CCT17/00) ZACC 17; 2001 (1) SA 1; 2000 (11) BCLR 1211 ; 12 BLLR 1365 (CC).
498:
292:
The applicants were five
Mozambican citizens, all but one of whom had arrived in
181:
Mokgoro J (Chaskalson, Langa, Goldstone, Moseneke, O’Regan and Yacoob concurring)
515:
173:. Provisions of the Social Assistance Act, 1992 are therefore unconstitutional.
153:
125:
524:
480:
388:
right to equality; in this assessment, it relied heavily on the approach of
395:
308:, but each had been denied social grants on the basis that they lacked
272:
wrote the majority judgement. The holding stemmed primarily from the
328:, the matters were heard together because of their similarities.
106:
Mahlaule and Others v
Minister of Social Development and Others
465:"Extending access to social assistance to permanent residents"
422:
residents should be included in the social welfare system.
102:
Khosa and Others v
Minister of Social Development and Others
253:
which established that it is unconstitutional to exclude
443:
169:
prohibits the exclusion of permanent residents from
284:right to freedom from unfair discrimination.
193:
185:
177:
159:
117:
112:
89:
84:
73:
65:
57:
47:
37:
23:
80:; 2004 (6) SA 505 (CC); 2004 (6) BCLR 569 (CC)
434:filed a dissenting judgment in which Justice
8:
573:South African anti-discrimination case law
558:Constitutional Court of South Africa cases
367:In a majority judgment written by Justice
208:discrimination on the basis of citizenship
29:
20:
514:
455:
341:Director-General of Social Development
24:Khosa v Minister of Social Development
7:
463:Sloth-Nielsen, Julia (1 July 2004).
335:in March 2003, the respondents (the
251:Constitutional Court of South Africa
42:Constitutional Court of South Africa
14:
345:Member of the Executive Committee
331:When the matters came before the
568:South African administrative law
539:Hoffmann v South African Airways
391:Hoffmann v South African Airways
296:in the 1980s as refugees of the
563:2004 in South African case law
401:The court then proceeded to a
347:for Health and Welfare in the
337:Minister of Social Development
306:state-funded social assistance
261:on the grounds that they lack
224:section 27 of the Constitution
1:
333:Transvaal Provincial Division
212:rights of permanent residents
98:Transvaal Provincial Division
189:Ngcobo J (Madala concurring)
516:10.17159/obiter.v26i1.14819
445:best interests of the child
403:rights limitations exercise
589:
326:High Court of South Africa
215:right to social assistance
94:High Court of South Africa
310:South African citizenship
263:South African citizenship
259:the social welfare system
198:
171:the social welfare system
164:
28:
414:social welfare system.
300:. All five had acquired
16:South African legal case
495:Mpedi, Letlhokwa George
481:10.10520/AJA1684260X_81
357:Legal Resources Centre
322:care-dependency grants
78:[2004] ZACC 11
497:(19 September 2022).
294:Limpopo, South Africa
249:is a decision of the
228:socio-economic rights
398:of those excluded.
353:Constitutional Court
318:child-support grants
298:Mozambican Civil War
69:CCT 12/03; CCT 13/03
302:permanent residency
255:permanent residents
426:Minority judgment
363:Majority judgment
349:Northern Province
242:
241:
218:section 9 of the
203:Children's rights
580:
543:
535:
529:
528:
518:
491:
485:
484:
460:
377:Section 27(1)(c)
113:Court membership
33:
21:
588:
587:
583:
582:
581:
579:
578:
577:
548:
547:
546:
536:
532:
493:
492:
488:
462:
461:
457:
453:
428:
365:
290:
238:
104:(25455/02) and
17:
12:
11:
5:
586:
584:
576:
575:
570:
565:
560:
550:
549:
545:
544:
530:
486:
454:
452:
449:
432:Sandile Ngcobo
427:
424:
373:Bill of Rights
369:Yvonne Mokgoro
364:
361:
314:old-age grants
289:
286:
270:Yvonne Mokgoro
240:
239:
237:
236:
234:discrimination
230:
225:
222:
216:
213:
210:
205:
199:
196:
195:
191:
190:
187:
183:
182:
179:
175:
174:
167:Bill of Rights
162:
161:
157:
156:
119:
118:Judges sitting
115:
114:
110:
109:
91:
87:
86:
82:
81:
75:
71:
70:
67:
63:
62:
59:
55:
54:
49:
48:Full case name
45:
44:
39:
35:
34:
26:
25:
15:
13:
10:
9:
6:
4:
3:
2:
585:
574:
571:
569:
566:
564:
561:
559:
556:
555:
553:
541:
540:
534:
531:
526:
522:
517:
512:
508:
504:
500:
496:
490:
487:
482:
478:
474:
470:
466:
459:
456:
450:
448:
446:
442:
437:
436:Tholie Madala
433:
425:
423:
421:
415:
412:
408:
404:
399:
397:
396:human dignity
393:
392:
387:
382:
378:
374:
370:
362:
360:
358:
354:
350:
346:
342:
338:
334:
329:
327:
323:
319:
315:
311:
307:
303:
299:
295:
287:
285:
283:
279:
275:
271:
266:
264:
260:
256:
252:
248:
247:
235:
231:
229:
226:
223:
221:
217:
214:
211:
209:
206:
204:
201:
200:
197:
192:
188:
184:
180:
176:
172:
168:
163:
160:Case opinions
158:
155:
151:
147:
143:
139:
135:
131:
127:
123:
122:Chaskalson CJ
120:
116:
111:
107:
103:
99:
95:
92:
90:Appealed from
88:
83:
79:
76:
72:
68:
64:
60:
56:
53:
50:
46:
43:
40:
36:
32:
27:
22:
19:
537:
533:
506:
502:
489:
472:
468:
458:
429:
419:
416:
400:
389:
381:Constitution
366:
330:
291:
274:Constitution
267:
245:
244:
243:
220:Constitution
105:
101:
85:Case history
61:4 March 2004
51:
18:
475:(3): 9–11.
411:immigration
178:Decision by
130:Goldstone J
66:Docket nos.
552:Categories
469:ESR Review
451:References
441:section 28
407:section 36
288:Background
278:section 27
142:Moseneke J
108:(25453/02)
525:2709-555X
386:section 9
282:section 9
150:O'Regan J
138:Mokgoro J
126:Langa DCJ
74:Citations
430:Justice
343:and the
194:Keywords
154:Yacoob J
146:Ngcobo J
134:Madala J
379:of the
232:unfair
186:Dissent
58:Decided
523:
503:Obiter
405:under
339:, the
320:, and
509:(1).
257:from
38:Court
521:ISSN
165:The
152:and
511:doi
477:doi
420:all
276:'s
554::
519:.
507:26
505:.
501:.
471:.
467:.
447:.
375:.
359:.
316:,
148:,
144:,
140:,
136:,
132:,
128:,
124:,
96:,
527:.
513::
483:.
479::
473:5
100:–
Text is available under the Creative Commons Attribution-ShareAlike License. Additional terms may apply.
