sexual health and human rights in the african region - The ICHRP

Development and Others 804 is a valuable precedent for determining entitlement to
health services by non-citizens. Immigrant populations can be disadvantaged
and marginalized by laws and policies that make access to health services
contingent upon citizenship. Limiting provision of health services to citizens may
be seen by domestic authorities as a rational way of managing finite and
constrained resources. At the same time, excluding non-citizens from access to
health services may constitute unfair discrimination. Furthermore, it can
undermine public health in areas such as HIV/AIDS. The success of HIV
preventative strategies crucially depends on the collective responsibility of and
co-operation by, citizens and non-citizens alike.
[40] Khosa concerns an application brought by applicants who had immigrated to
South Africa, from Mozambique, were permanent residents, 805 but not citizens,
of South Africa under South African law. They had been denied access to social
assistance by way of social grants for the elderly under the Social Assistance Act
of 1992, 806 and child–support grants and care-dependency grants under the
Welfare Laws Amendment Act of 1997. 807 Both Acts reserved the grants for
South African citizens only. Apart from not meeting the citizenship requirement
under the Acts, the applicants were destitute people and met the means test
under the Acts. They challenged the constitutionality of the Acts mainly on
ground that it was inconsistent with the state’s obligation under section 27(1)(c)
to provide social security to ‘everyone’. Section 27 says, inter alia:
(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.
[41] The applicants also contended that the exclusion of permanent residents
constituted a violation of the rights to equality (section 9), human dignity
(section 10), and life (section 11), and the rights guaranteed to children under
section 28 of the Constitution. The main issues before the Constitution court
were: 1) whether the word ‘everyone’ in section 27 of the Constitution, includes
permanent residents; 2) whether it was reasonable to confine everyone only to
South African citizens; and 3) whether excluding permanent residents under the
challenged Acts constituted unfair discrimination.
804 Khosa and Others and Minister of Social Development and Others 2004 (6) SA 505.
805 Permanent residence status was acquired under the Aliens Control Act No 96 of 1991 (South Africa).
806 Social Assistance Act No 59 of 1992 (South Africa).
807 Welfare Laws Amendment Act No 106 (South Africa).
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