Khosa and Others v Minister of Social Development and Others; Mahlaule and Others v Minister of Social Development and Others

• Jurisdiction: South Africa

Khosa and Others v Minister of Social Development and Others;
Mahlaule and Others v Minister of Social Development and Others
2004 (6) SA 505 (CC)

2004 (6) SA p505

Citation	2004 (6) SA 505 (CC)
Case No	CCT 12/2003; 13/2003
Court	Constitutional Court
Judge	Chaskalson CJ, Langa DCJ, Goldstone J, Madala J, Mokgoro J, Moseneke J, Ngcobo J, O'Regan J and Yacoob J
Heard	May 13, 2003; March 30, 2003
Judgment	March 4, 2004
Counsel	P Kennedy SC for the applicants.; M T K Moerane SC (with S A Nathi) for the respondents.

Flynote : Sleutelwoorde B

Constitutional law — Human rights — Right of access to social security — Omission of words 'or C permanent resident' after word 'citizen' in s 3(c) of Social Assistance Act 59 of 1992 prior to its amendment by Welfare Laws Amendment Act 106 of 1997, as well as omission of words 'or permanent resident' from that part of s 3 of Welfare Laws Amendment Act which is to amend s 3(c) of Social Assistance Act, inconsistent with Constitution of the Republic of South Africa Act 108 of D 1996 — To remedy defect, s 3(c) of Social Assistance Act 59 of 1992 prior to amendment by Welfare Laws Amendment Act, as well as that part of s 3 of Social Assistance Act 59 of 1992 which is to amend s 3(c) of Social Assistance Act, to be read as though words 'or permanent resident' appear after word 'citizen'. E

Constitutional law — Human rights — Right of access to social security — Omission of words 'or permanent residents' after word 'citizens' from s 4(b)(ii) of Social Assistance Act 59 of 1992 as amended by Welfare Laws Amendment Act 106 of 1997, as well as omission of words 'or permanent residents' after word 'citizens' from that part of s 3 of Welfare Laws Amendment Act which is to introduce s 4B(b)(ii) into Social Assistance Act, inconsistent with F Constitution of the Republic of South Africa Act 108 of 1996 — To remedy defect, s 4(b)(ii) of Social Assistance Act as amended by Welfare Laws Amendment Act, as well as that part of s 3 of Welfare Laws Amendment Act which is to introduce s 4B(b) (ii) into Social Assistance Act 59 of 1992, to be read as though words 'or permanent residents' appear after word G 'citizens'.

Constitutional law — Human rights — Right of access to social security — Constitution of the Republic of South Africa Act 108 of 1996, s 27 — To whom applicable — Whether confined to citizens — Right conferred on 'everyone' by s 27(1) — Whether such right confined to citizens only or H extending to broader class of people depending on interpretation of word 'everyone' in section — Constitutional Court adopting purposive approach to interpretation of rights — Given that Constitution expressly providing that Bill of Rights enshrining rights of 'all people in our country', and in absence of any indication that s 27(1) right to be restricted to citizens as in other provisions of Bill of Rights, word 'everyone' in section cannot be construed as referring only to 'citizens'. I

Constitutional law — Human rights — Right not to be unfairly discriminated against — Unfair discrimination — What constitutes — If differentiation based on ground listed in s 9(3) of Constitution of the Republic of South Africa Act 108 of 1996, rebuttable presumption created by s 9(5) that J

2004 (6) SA p506

discrimination unfair — However, where ground for differentiation not itself listed, but analogous to A such listed grounds, no presumption in favour of unfairness and unfairness first to be established — To be considered analogous ground of differentiation to those listed in s 9(3), classification must have adverse effect on dignity of individual, or some other comparable effect — Differentiation on grounds of citizenship clearly on ground analogous to those listed in s 9(3) and therefore amounting to discrimination — In deciding B whether discrimination unfair, determining factor being its impact on person discriminated against — Relevant considerations in this regard include (a) position of complainants in society and whether they have suffered in past from patterns of disadvantage, whether discrimination in case under consideration on specified ground or not; (b) nature of provision or power and purpose sought C to be achieved by it; (c) extent to which discrimination has affected rights or interests of complainants and whether it has led to impairment of fundamental human dignity or constituting impairment of comparably serious nature — Above factors not constituting closed list and it is their cumulative effect that must be examined and D in respect of which determination must be made as to whether discrimination unfair.

Constitutional law — Human rights — Socio-economic rights — Approach to — Socio-economic rights in Constitution of the Republic of South Africa Act 108 of 1996 closely related to founding values of human dignity, equality and freedom — Where right to life, E dignity, and equality implicated in cases dealing with socio-economic rights, they have to be taken into account along with availability of human and financial resources in determining whether State has complied with constitutional standard of reasonableness — Such not closed list, however, and all relevant factors to be taken into account — What is relevant may vary from case to case F depending on particular facts and circumstances — Even where State able to justify not paying benefits to everyone entitled to benefits under specific section of Constitution on grounds that to do so unaffordable, criteria upon which they choose to limit payment of such benefits to be consistent with Bill of Rights as whole — Thus, if means chosen by Legislature to give G effect to State's positive obligation under specific section of Constitution unreasonably limiting other constitutional rights, that too to be taken into account.

Constitutional law — Legislation — Validity of — Reasonableness — Exclusion of certain persons from certain rights — Court considering reasonableness of legislative or other measures taken by State will not H enquire into whether other more desirable or favourable measures could have been adopted, or whether public resources could have been better spent — Wide range of possible measures could be adopted by State to meet its obligations, many of which may meet requirement of reasonableness — Once shown that measures do so, requirement met — In dealing with issue of reasonableness, I context all-important — In considering whether exclusion of certain persons from certain rights reasonable, relevant to have regard to purpose served by excluded right, impact of exclusion on excluded persons, and relevance of requirement excluding such persons to purpose — Also necessary to have regard to impact on other intersecting rights. J

2004 (6) SA p507

Constitutional practice — Constitutional challenge to legislation — Evidence — Evidence to be A placed before Court — Duty to place evidence before Court — Any constitutional challenge to legislation, whether national, provincial or local, is important — National legislation does not belong to particular Minister or department; it is collective expressed will of Parliament — Declaring legislation invalid can have grave implications for constitutional jurisprudence and, in some cases, far-reaching practical effects — Even in those cases where B view is taken that there is nothing to be said in support of challenged legislation Court, in order to exercise due care required of it when dealing with such matters, may well require assistance of counsel — Where declaration of invalidity of impugned legislation could have significant budgetary and administrative implications for State, necessary evidence to be placed before Courts C dealing with such matters, otherwise ability to perform constitutional mandate hampered and constitutional scheme itself put at risk — Government's duty to ensure that relevant evidence is placed before Court.

Constitutional practice — Courts — Constitutional Court — Powers of — Constitutionality of D legislation not yet in force — In terms of s 81 of Constitution of the Republic of South Africa Act 108 of 1996, Bill assented to and signed by President becomes Act of Parliament and takes effect when published or on date determined in terms of Act — In terms of s 172(2)(a) Court may make order concerning constitutional validity of Act of Parliament — Thus, fact that legislative provision not yet brought into force should not remove it from jurisdiction of E Constitutional Court to determine its constitutionality — Section 172(1) of Constitution, which empowers Court to declare laws to be inconsistent with Constitution, does not distinguish between laws which have been brought into force and those which have not — Once matter properly before Constitutional Court, should be no bar to just and equitable remedies F that can be granted, as long as Court mindful of its role in relation to Parliament — In case of provision not yet brought into force legislative process complete and there is duly enacted Act of Parliament before Court — In consideration of precise remedy, no material difference between Constitutional Court's power to read words into such provision and its power in respect of provisions that have been brought into force. G

Constitutional practice — Order of constitutional invalidity — Order subject to confirmation by Constitutional Court — Operation of such order not to be held in abeyance for longer than necessary — Where persons affected indigent persons in dire circumstances, concern is heightened, and even greater need to bring proceedings to H close — Where Constitutional Court requiring further information to be placed before it in order to discharge its constitutional duty, and in interests of justice that such information be placed before it, most appropriate way of dealing...