Khosa & Others v Minister of Social Development & Others
Please note the summary below draws on the case summary made by ESCR-Net and is available on http://www.escrnet.org/caselaw/caselaw_show.htm?doc_id=401099&
Name of Case
Khosa & Others v Minister of Social Development & Others
Nationality, citizenship, accessibility, availability, discrimination, Children‘s Rights, Nationality, Migrant Rights, Older Persons’ Rights, Social Security and Welfare Rights, reasonableness, general limitations clause, South Africa, constitutional law, national level
Constitutional Court of South Africa
2004(6) BCLR 569 (CC); 4 March 2004
The applicants were indigent Mozambican citizens with permanent resident status in South Africa.
The Social Assistance Act 59 of 1992 (the Act) granted by Claasen AJ in the Pretoria High Court disqualified persons who were not South African citizens from receiving certain welfare grants.
The application alleged that exclusion of non-citizens from social grant entitlements was unconstitutional on the basis of the following sections of the South African Constitution:
27 - right to health care, food, water and social security
28 - children’s rights,
9 - equality,
10 - human dignity; and
11 – right to life;
The applicants brought an action challenging the Act, which limited entitlement to social grants for the aged to South African citizens, and would prevent children of non-South African citizens in the same position as the applicants from claiming any of the childcare grants available to South African children (regardless of the citizenship-status of the children themselves).
The applicants brought their application in their own names, on behalf of their minor children, other people who had joined the application but could not litigate personally, the class of permanent residents as a whole, and in the general public interest.
Note. see the section on the website relating to who can bring a case.
The applicants argued that if they had been South African citizens, all of them would have qualified to receive welfare grants in terms of the Act.
The applicants argued in the High Court that the citizenship requirement infringed their Constitutional rights to equality, social security, and the rights of children. The application was unopposed in the High Court. The High Court found for the applicants and struck down the challenged provisions relating to child-support grants, care-dependency grants and old-age grants. In addition, the Director-General of Social Development and the MEC for Health and Welfare in the Northern Province were ordered to pay to the applicants the relevant grants, including certain arrears, and to receive and process applications for grants from the named persons on whose behalf the applicants acted.
The Constitutional Court held that the Constitution vests the right to social security in “everyone” and that permanent residents are bearers of this right. The exclusion of permanent residents from the welfare scheme is not a reasonable way to achieve the realisation of the right to social security. Furthermore, the Court held that the exclusion of permanent residents from the scheme is discriminatory and unfair and infringes the right to equality.
The Court highlighted the interdependence and interconnectedness of rights and observed that the right to equality was implicit in the Section 27 entitlement of everyone to have access to social security.
The Court stated that, due to their position as people who have become part of South African society and made their homes in South Africa, the exclusion of permanent residents from the legislative scheme amounted to unfair discrimination in violation of s.9(3). Applying the “reasonableness test” in s.27(2) the Court found the scheme's exclusion of permanent residents to be unreasonable, stating that the importance of providing access to social assistance to all who live permanently in South Africa, as well as the impact upon life and dignity that a denial of such access would have, far outweighed the financial and immigration considerations on which the State relied.
See the section of cases on budget interference.
The Court confirmed that the exclusion of children from access to these grants amounted to unfair discrimination on the basis of their parents' nationality and that "the denial of support in such circumstances to children in need trenches upon their rights under section 28(1)(c)" The Court read in the words “or permanent resident” after the word “citizen” in each of the challenged sections.
Note. In terms of interpretting the constitution, the Court considered not just the words of those who drafted it but also their intentions. This is a very common interpretative tool that judges use when the words of a constitution or statute are ambiguous or do not expressly provide for the circumstances of a given case. See the section on the website relating to interpreting law.
There were a minority of judges in the Constitutional Court who dissented. [Note. unless the decision in a case is unanimous, there will be judges who disagree with what the majority, and therefore the Court, decide in any case. Their opinion is often recorded in the judgement if of note but it will not be binding on any future cases. However, it is a useful way of seeing how other judges at that level viewed the case and other ways in which the law and a given situation could have been interpreted.]
The two dissenting judges in this case found that section 3(c) [must be a South African citizen] of the 1992 Act was a reasonable limitation of the right of access to social security. They stated that the state has insufficient resources to provide for everyone within its borders and is entitled to prioritise its citizens and as such, the Act has the legitimate purpose of encouraging self-sufficiency in immigrants. Furthermore, it is important that the provision of these benefits does not create an incentive to immigrate to South Africa. The minority held further that the limitation is merely temporary since it is possible for permanent residents to naturalise after five years.
However, interestingly with regard to the right to education, the dissenting judges agreed that the provisions relating to children are unconstitutional. These sections established grants for children whose parents are South African citizens but failed to provide for children who might be South African citizens but whose parents are not.
The potential impact of this case was huge. The Legal Resources Centre who were responsible for bringing the case estimated that the judgment would impact on at least 250 000 people in South Africa. (LRC annual report 2004). The judgment has largely been given effect to by the State.
The legislation at issue in Khosa has since been repealed and replaced by the Social Assistance Act of 2004. The new Act does not incorporate the Constitutional Court's ‘reading in' of “permanent residents” in Khosa and thus ostensibly reverts to the situation prior to the case being brought. However, the Act also incorporates a ministerial discretion which may be employed to bring permanent residents within the protection of the Act. It remains to see whether this will occur.
This case indicates that not allowing permanent residents who are not national citizens access to education would be discriminatory.
In addition, the views of the dissenting judges indicate that the Court was unanimous in its view that children, even of parents who were not South African should not face such limitations and should be able to access the grants. This would indicate that even the dissenting judges might in theory agree that in the field of education non-citizens shouldn’t be discriminated against.
However, it should be noted that their view in this case might be that children who did not have South African parents and were not South African themselves, could legitimately not benefit from the grants.