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

[42] The Constitutional Court held unanimously that excluding permanent residents
was inconsistent with section 27 of the Constitution and constituted, inter alia,
unfair discrimination and that the impugned legislation was, therefore
unconstitutional. By way of a remedy, the words ‘permanent resident’ would be
read in after the word ‘citizen’ in the impugned legislation.
[43] In the main, the Constitutional Court resolved the case by applying the Harksen v
Lane test 808 for determining unfair discrimination and finding violations of the
rights to equality and human dignity. The focus on the Court’s inquiry was on
the impact of the discrimination in the applicants. The Court found that
excluding destitute permanent residents from accessing social security benefits
impacted on permanent residents in an adverse and serious manner, and could
not be justified. Permanent residents when juxtaposed with citizens were a
vulnerable minority with little political capital. Excluding permanent residents
from social security benefits sent the message that they were inferior and less
worthy members of society. It consigned members of the community who had no
means of supporting themselves to relationships of dependency upon families
and cast them in the role of supplicants. The court indicated that there might be
circumstances where it would be justifiable to limit the right of access of noncitizens
to social security, such as where, on account of scarcity of resources,
exclusion is temporary and an incident of the progressive realization of a socioeconomic
right. However, the Court said this was not such an instance as the
state’s argument was that non-citizens had no legitimate claim to social
security. 809
[44] It was also part of the reasoning of the Court in Khosa that the right of access to
social security was a socio-economic right and that socio-economic rights are as
fundamental and as important as the other rights in the Bill of Rights and that
any criterion that is chosen by government to exclude or limit them must be
consistent with the Bill of Rights. Excluding non-citizens irrespective of their
immigration status was over-inclusive as it failed to draw a distinction between
those who had become part of the society and made their homes in South Africa,
such as permanent residents and those who had not done so.
[45] Khosa and Others has implications not only for access to social security but also
access to other socio-economic rights guaranteed to ‘everyone’ by the
Constitution, including access to health care services. It is the first case to
examine the intersection between equality and universal access to socioeconomic
rights. The term ‘everyone’ connotes universality and the state must
have sufficiently good reasons for excluding immigrants or any other social
group from such services. In this regard, Khosa and Others cannot be understood
808 Harksen v Lane 1997 (11) BCLR 1489 (Constitutional Court of South Africa). This test was discussed in
Chapter 2 of this study.
809 Khosa and Others para 50.
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