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186 Chapter 10
friends and the community in which they live, none of whom may have
agreed to sponsor the immigration of such persons to South Africa. ...
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. 101
Mokgoro J could well have added that permanent residents are, as
supplicants, not merely dependent on family members, but quite
literally at their mercy.
The same story could well be told of the sexual slaves that Jordan
necessarily, though never directly, addresses. Many sex slaves would
consider themselves fortunate to be supplicants. They are not just
excluded from the protection of the law. Many sex slaves do not speak
the language, do not know the law of the land, do not have the
resources to engage corrupt immigration officials or to escape
criminal syndicates. Many are enslaved by their own families.
By depicting the permanent residents in Khosa as supplicants,
Justice Mokgoro is able to get us to see that FC section 7(2), read with
FC section 9 and FC section 27, places the state under an obligation
to protect and to fulfil the rights of all persons in South Africa. By
hammering home the point about turning our neighbours into beggars,
Justice Mokgoro shows us that legal regimes that offer incentives to
become members of the political community but then punish persons
who cannot act on such incentives — by withholding benefits or by
threatening incarceration — are perverse. Justice Mokgoro then
demonstrates that the state’s denial of various social security grants
to permanent residents extinguishes the material conditions for
genuine agency. And, in the end, it is this depiction of Khosa’s
permanent residents as supplicants — as beggars — that convinces a
majority of the Court that the children, the aged and the disabled
permanently resident in South Africa are entitled to their claim for
state support. Had a similar story been told in Jordan about the lives
of sex slaves, the outcome might well have been different.
101 Khosa (n 60 above) para 76.