LITIGATING SOCIO-ECONOMIC RIGHTS IN SOUTH AFRICA - PULP

88 Chapter 3
arising from the exclusion of the applicants from the social assistance
scheme. Nevertheless, the case also invoked positive obligations; the
state argued that including the applicants in the social assistance
scheme would impose financial burdens on the state and discourage
self sufficiency amongst non-citizens. 160 In effect, the state was
arguing that, even if there was an obligation to provide for the
applicants, it just did not have the resources to discharge this
obligation. Indeed, enforcing the applicant’s rights would not only
entail their inclusion in the programme, but also a commitment of
resources to meet their social assistance needs. The state was also
arguing in effect that provision of the benefits requested would have
had a negative impact on such interests as the need to promote selfsufficiency
of non-citizens.
The Court held that once those not self-sufficient are granted
permanent resident status, then the state has a duty to provide for
them. This is irrespective of the financial burden that may be imposed
on the state. 161 The application of the proportionality test in this case
is seen in the finding that providing social assistance to the applicants
outweighed the financial and immigration concerns of the state. 162
The values embedded in the protection of the survival interests of
non-citizens were considered by the Constitutional Court to outweigh
the financial and other considerations raised by the state. The Court
said that the importance of providing access to social assistance to all
who live in South Africa and the impact upon life and dignity that a
denial of such access far outweighs the financial and immigration
considerations on which the state relied. Accordingly, ‘the denial of
access to social grants to permanent residents who, but for their
citizenship, would qualify for such assistance does not constitute a
reasonable legislative measure as contemplated by section 27(2) of
the Constitution’. 163
The Constitutional Court in the passage above appears to suggest
that proportionality has a role to play in considering whether or not
the measures adopted by the state are reasonable. The Court appears
to have been inspired to apply this test because of the direct
invocation by the applicants of the right to equality in section 9. 164
160 Paras 60 & 63.
161
Para 68.
162 Liebenberg (n 70 above) 21.
163 Para 82.
164
The proportionality test has featured strongly in the approach that the
Constitutional Court has adopted in considering equality cases. This is most
especially at the stage of considering whether discrimination amounts to unfair
discrimination. See Harksen v Lane NO 1998 1 SA 300 (CC) para 53. At this stage of
the equality inquiry, the court has to consider the impact of the discrimination on
the victim. If the discrimination burdens people who have in the past been
victims of discrimination, then it will be unfair unless the purpose it intends to
achieve outweighs the burdens imposed. This requires a proportionality test