Ubuntu and Social Grants
Khosa and Others v Minister of Social Development (2004)
Are non-citizens entitled to social grants issued by the government?
Background
Louis Khosa, Eliasse Mucambo Mulhovo, and Sania Ndlovu were Mozambican citizens living in South Africa as permanent residents. They fled Mozambique in order to escape the civil war in the 1980s.
They were destitute but did not qualify for social assistance under the Social Assistance Act because they were not South African citizens as required by the Act. Khosa needed a social grant for her two minor children, but was rejected on the same grounds.
Khosa, Mulhovo, and Ndlovu argued that the citizenship requirement infringed their Constitutional rights to equality, social security, and the rights of children.
Path to the Constitutional Court
Their case was heard by the High Court, on the basis that the denial of social grants violated their constitutional rights to equality, social security, and the rights of children. The case was unopposed by the government in the High Court which found for the applicants and struck down the challenged provisions. The matters were then brought before the Constitutional Court for confirmation as per section 167(5) of the Constitution which states that the Constitutional Court makes the final decision whether an Act of Parliament is constitutional or unconstitutional.
Some of the Arguments
Louis Khosa, Eliasse Mucambo Mulhovo, and Sania Ndlovu
Khosa, Mulhovo, Ndlovu and others argued that the section of the Social Assistance Act that disqualifies persons who are not South African citizens from receiving certain welfare grants, infringed their Constitutional rights to equality, social security, and the rights of children. The High Court had found in favour of the applicants and declared these provisions of the Social Assistance Act unconstitutional. They now sought confirmation from the Constitutional Court on the High Court’s decision.
Minister of Social Development
Even though the Ministry decided not to defend this matter in the High Court, it challenged the High Court’s judgment in the Constitutional Court. The argument was that the High Court judge had a duty to call for evidence on the availability of resources on the part of the government. It was also argued that the judge had a duty to give a reasoned judgment for the finding of invalidity of the Social Assistance Act. The Ministry argued that the High Court’s decision infringed the doctrine of separation of powers and therefore ought not to be confirmed by the Constitutional Court.
What did the Constitutional Court decide?
The Court found that the requirement for citizenship for the receipt of social security was unreasonable, and that permanent residents should be included. The Court also found that the exclusion of permanent residents from receiving social grants is discriminatory and unfair, and infringes on the right to equality.
A society must seek to ensure that the basic necessities of life are accessible to all if it is to be a society in which human dignity, freedom and equality are foundational.
Justice Yvonne Mokgoro
from the Khosa Judgment, 4 March 2004
There can be no doubt that the applicants are part of a vulnerable group in society and in the circumstances of the present case, are worthy of constitutional protection. We are dealing here with intentional, statutorily sanctioned unequal treatment of part of the South African community. This has a strong stigmatising effect. Because both permanent residents and citizens contribute to the welfare system through the payment of taxes, the lack of congruence between benefits and burdens created by a law that denies benefits to permanent residents almost inevitably creates the impression that permanent residents are in some way inferior to citizens and less worthy of social assistance.
Justice Yvonne Mokgoro
from the Khosa Judgment, 2004
Impact and Significance
The Constitutional Court’s decision emphasised the importance that the Constitution places on protecting the vulnerable, and this includes all people, not just citizens. The decision meant that permanent residents do not have to live on the fringes of society simply because they are ‘foreigners’.
Section 27(1)(c) of the Constitution, which guarantees social security, is one of the rights that distinguishes the South African Constitution from other constitutions as it seeks to broadly transform the socio-economic fabric of society.
