Khosa v Minister of Social Development

The Constitutional Court held that sections of the Social Assistance Act that limited social grants to South African citizens unfairly discriminated against permanent residents on the ground of citizenship, violating section 9 of the Constitution. The Court ordered that permanent residents be granted the same access to social assistance as citizens, affirming the socio-economic rights of non-citizens lawfully residing in South Africa.

The applicants were permanent residents of South Africa who had been denied access to social grants (child support and old age grants) solely because they were not South African citizens. The Social Assistance Act and its regulations restricted eligibility for social assistance to South African citizens only, excluding permanent residents despite their lawful and settled status in the country.

Whether sections of the Social Assistance Act that restricted social grants to citizens unfairly discriminated against permanent residents contrary to section 9 of the Constitution.

The Constitutional Court declared that the citizenship requirement for social grants constituted unfair discrimination under section 9 of the Constitution. The relevant provisions were read down to include permanent residents within the class of beneficiaries entitled to social assistance.

Differentiation based solely on citizenship between citizens and permanent residents in access to social assistance constitutes unfair discrimination under the equality guarantee, particularly where permanent residents have made South Africa their home and contribute to society.

The Court found that permanent residents form a stable part of South African society and share the same socio-economic vulnerabilities as citizens. Denying them access to the social security safety net based solely on citizenship was not rationally connected to a legitimate government purpose and imposed a significant burden on a vulnerable group. The constitutional commitment to dignity, equality, and socio-economic rights extends to all who have made South Africa their permanent home.

The Court noted that the case concerned permanent residents specifically and did not decide the position of other categories of non-citizens such as refugees or temporary residents.

Khosa is a landmark case affirming that constitutional rights, particularly socio-economic rights and equality, extend beyond citizens to include permanent residents. It demonstrates the Constitutional Court's purposive and substantive approach to equality and the interpretation of socio-economic rights, reinforcing South Africa's commitment to dignity and social justice for all lawful residents.

Khosa v Minister of Social Development 2004 (6) SA 505 (CC) [2004] ZACC 11