## Facts

- Indigent Mozambican nationals were granted lawful permanent residence in South Africa, many after arriving as refugees in the 1980s.
- They met all statutory criteria for old-age, child-support, and care-dependency/home-care grants except for a requirement that applicants be South African citizens.
- They challenged provisions of the Social Assistance Act 59 of 1992 that limited eligibility for these grants to “South African citizens,” excluding permanent residents.
- They acted in their own names, on behalf of their minor children, on behalf of similarly situated permanent residents, and in the public interest.
- The High Court declared the citizenship requirement unconstitutional, ordered payment (including arrears) to named applicants, and required officials to accept and process applications from those represented.
- The matter proceeded to the Constitutional Court for confirmation of the invalidity order.

## Issues

1. Whether permanent residents are included within “everyone” entitled to have access to social security and social assistance under Constitution s 27.
2. Whether limiting social assistance to citizens is unreasonable under Constitution s 27(2)’s requirement of reasonable measures within available resources.
3. Whether excluding permanent residents from social grants constitutes unfair discrimination violating Constitution s 9.
4. Whether the exclusion infringes children’s rights to social services where benefits are denied because a caregiver is not a citizen, contrary to Constitution s 28(1)(c).
5. Whether any resulting limitation is justified by fiscal constraints or immigration-control considerations under Constitution s 36 and related reasonableness analysis.

## Decision

- The Constitutional Court confirmed the invalidity of the citizenship-only eligibility provisions as applied to the relevant grants.
- The Court held that permanent residents fall within “everyone” protected by s 27 and therefore bear the right of access to social security and, when unable to support themselves, appropriate social assistance.
- The Court held the exclusion of permanent residents from the social assistance scheme was unreasonable and unconstitutional under s 27(2).
- The Court held the exclusion was discriminatory and unfair, infringing the right to equality under s 9.
- The Court held the exclusion impaired children’s access to social services where denial flowed from a caregiver’s nationality or status.
- Remedy: the Court ordered a reading-in so the Act operated as if the words “or permanent resident” followed “citizen” in the relevant provisions, including to prevent frustration of the order through pending or future textual changes.
- Separate opinion: a partial dissent would have upheld the exclusion for permanent-resident adults as a justified limitation, while finding it unconstitutional insofar as it affected children.

## Legal Principles

- A constitutional right conferred on “everyone” extends to lawful permanent residents unless the constitutional text or a justified limitation supports exclusion.
- In evaluating “reasonableness” for socio-economic rights measures, courts consider the measure’s impact on vulnerable groups and the relationship between the measure and constitutional values, including equality and dignity.
- Differential treatment between citizens and permanent residents in access to basic welfare benefits may constitute unfair discrimination when it burdens an indigent, integrated, and vulnerable class lacking realistic alternatives for support.
- Denying social assistance that functionally provides children access to basic social services can violate children’s constitutional protections when the denial is based on a caregiver’s citizenship.
- Where a statutory scheme is constitutionally defective but otherwise workable, reading-in may be an appropriate remedy to cure underinclusion while preserving the legislative program.

## Conclusion

The Constitutional Court held that excluding lawful permanent residents from key social grants solely on citizenship grounds was unconstitutional because it unreasonably limited access to social assistance and amounted to unfair discrimination, and it remedied the defect by reading permanent residents into the eligibility provisions.


Khosa v. Minister of Soc. Dev., 2004 (6) S. Afr. L.R. 505 (S. Afr. Const. Ct. 2004)