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

The applicants were Mozambican nationals who had acquired permanent residence status in South Africa under exemptions granted under the Aliens Control Act 96 of 1991. Most had fled Mozambique in the 1980s during the civil war and settled in what is now Limpopo Province. They were destitute and met all requirements for social assistance grants (old-age grants, child-support grants, and care-dependency grants) under the Social Assistance Act 59 of 1992, except that they were not South African citizens. The Act restricted social grants to citizens only through sections 3(c), 4(b)(ii), and 4B(b)(ii). The applicants' applications for grants were refused solely on the basis of their lack of citizenship. The High Court declared these provisions unconstitutional and referred the matter to the Constitutional Court for confirmation. The state did not oppose the matter in the High Court but later sought to defend the legislation on grounds including financial constraints, immigration policy, and the principle that states have primary obligations to their own citizens.

• Whether the exclusion of permanent residents from social security benefits violates section 27 of the Constitution (right to access to social security)
• Whether the exclusion constitutes unfair discrimination under section 9 of the Constitution
• Whether the limitation is reasonable and justifiable under section 36 of the Constitution
• Whether the exclusion of children from grants because their caregivers are not citizens violates section 28 (children's rights)
• Whether courts can declare unconstitutional a legislative provision that has not yet been brought into force
• What is the appropriate remedy for unconstitutional legislation in this context
• What is the standard of reasonableness under section 27(2) and its relationship to section 36
• Whether dignity (section 10) and life (section 11) rights are implicated in denial of social assistance

The Court declined to confirm the High Court's striking down order and instead crafted a more precise remedy by reading in the words "or permanent resident" after "citizen" in: (1) Section 3(c) of the Social Assistance Act (both before and after amendment by the Welfare Laws Amendment Act); (2) Section 4(b)(ii) of the Social Assistance Act as amended; and (3) Section 4B(b)(ii) as it appears in the Welfare Laws Amendment Act. The respondents were ordered to pay the costs of the confirmation proceedings. The reading-in remedy took immediate effect, granting permanent residents access to social grants without delay or suspension.

The binding legal principles established by this case are: (1) The word "everyone" in section 27 of the Constitution includes permanent residents, not only citizens. The right of access to social security is not limited to citizens. (2) Where the state establishes a social security scheme to meet its section 27 obligations, it cannot exclude permanent residents from that scheme solely on the basis of their non-citizenship. (3) The exclusion of permanent residents from social assistance constitutes discrimination on a ground analogous to those listed in section 9(3) and is unfair discrimination because it: (a) affects a vulnerable group; (b) has a stigmatizing effect; (c) severely impacts human dignity by relegating people to the margins of society; and (d) affects fundamental rights in a manner that is neither temporary nor easily remedied. (4) Financial constraints and immigration policy concerns do not justify unfair discrimination against permanent residents in access to social assistance where: (a) the financial impact is not shown to be severe; (b) the state can protect itself through immigration controls, sponsor requirements, and security measures; and (c) the impact on human dignity and basic survival is severe. (5) The exclusion of children from social assistance grants based on their caregiver's citizenship status violates section 28 of the Constitution, particularly the principle that a child's best interests are paramount (section 28(2)). (6) The Constitutional Court has jurisdiction under section 172(2)(a) to determine the constitutional validity of provisions in an Act of Parliament that has not yet been brought into force. (7) Reading-in is an appropriate remedy where: (a) the constitutional defect can be cured with precision; (b) it respects the separation of powers by making the minimal change necessary; (c) it provides immediate relief; and (d) striking down would create unintended consequences (such as extending benefits to all residents including temporary visitors).

Important non-binding observations include: (1) Mokgoro J noted that the relationship between section 27(2)'s reasonableness standard and section 36's limitation clause remains unresolved and should be addressed in future cases with full argument. (2) The majority observed that it may be reasonable to exclude temporary visitors and illegal residents from social assistance schemes, as they have only a tenuous link with South Africa (unlike permanent residents who have made South Africa their home). (3) Mokgoro J emphasized the importance of government placing relevant evidence before courts in constitutional challenges to legislation, noting that failure to do so hampers the court's constitutional mandate and puts the constitutional scheme at risk. (4) The judgment stressed that postponements in constitutional matters are granted only in the interests of justice and that wilful default by the state is a serious matter. (5) Mokgoro J commented that High Court judges must give reasons when declaring legislation unconstitutional, as this Court requires those reasons to perform its confirmation function. (6) The judgment emphasized that socio-economic rights must be understood in the context of the founding constitutional values of human dignity, equality and freedom, and that these rights are closely related to and reinforce these values. (7) Mokgoro J observed that South Africa's commitment to developing a caring society may require bearing the cost when mistakes are made in immigration decisions, rather than abandoning permanent residents to destitution. (8) The majority noted that sharing responsibility for poverty as a community reflects the extent to which society treats the poor as equal members, and that allocation of public benefits represents decisions about social inclusion. (9) Ngcobo J's dissent (regarding section 3(c)) offered observations about the legitimacy of encouraging naturalization through differential benefits and the role of judicial deference to legislative policy choices in immigration matters, though this did not represent the majority view.

This landmark case established several important principles in South African constitutional law: (1) It was the first major Constitutional Court decision to find that socio-economic rights extend to permanent residents, not just citizens, interpreting "everyone" in section 27 broadly in line with constitutional values. (2) It affirmed that citizenship is a ground analogous to those listed in section 9(3) and that discrimination on this basis can be unfair. (3) It demonstrated the inter-relationship between socio-economic rights and other constitutional rights (dignity, equality, life, children's rights), showing how denial of social assistance can violate multiple rights simultaneously. (4) It established that the Court can review legislation not yet in force and grant remedial orders (like reading-in) in respect of such legislation. (5) It clarified the reading-in remedy as appropriate where the constitutional defect can be cured with precision, respecting the separation of powers while ensuring immediate protection of rights. (6) It reinforced that children's rights under section 28 take precedence over immigration and fiscal concerns. (7) It set limits on financial and immigration policy justifications for limiting access to socio-economic rights, holding that human dignity and equality cannot be overridden by administrative convenience or cost-saving where the impact is severe. (8) The case is foundational for understanding the scope of socio-economic rights in South Africa and the state's obligations to vulnerable non-citizen residents. It influenced subsequent jurisprudence on the rights of migrants, refugees, and other non-citizens.