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LEGAL OPINION: 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)
1. Introduction
The Constitutional Court’s judgment in Khosa and Others v Minister of Social Development and
Others; Mahlaule and Others v Minister of Social Development and Others concerned the
constitutionality of legislation that excluded permanent residents from accessing social grants
solely because they were not South African citizens.1 The judgment is significant because it
established that the constitutional right of access to social security cannot be interpreted in
isolation from the foundational values of human dignity, equality and freedom.
The Court ultimately held that permanent residents fall within the meaning of “everyone” in
section 27(1) of the Constitution and that their exclusion from social assistance constituted
unfair discrimination and an unjustifiable limitation of their constitutional rights.2
2. Facts and Legal Issue
The applicants were permanent residents of South Africa who satisfied the other statutory
requirements for receiving social grants but were excluded because they were not South African
citizens. The relevant legislation restricted access to certain social assistance benefits to citizens.
The central constitutional question was whether the exclusion of permanent residents from the
social assistance system was consistent with the right of access to social security in section
27(1)(c), read with the state's obligation under section 27(2) to take reasonable legislative and
other measures, within available resources, to achieve the progressive realisation of that right.3
The applicants also relied upon the constitutional rights to equality, human dignity, life and
children's rights. The Court therefore had to consider the relationship between socio-economic
rights and the broader constitutional framework.
3. Interpretation of the Right of Access to Social Security
The Court adopted a purposive interpretation of section 27. The wording of section 27(1)
provides that “everyone” has the right to have access to social security, including appropriate
social assistance for persons unable to support themselves and their dependants.4 The Court
rejected an interpretation that would limit “everyone” to South African citizens.
1
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) paras 38–45.
2
Khosa (n 1) paras 46–56, 77–85.
3
Constitution of the Republic of South Africa, 1996 s 27(1)(c) and s 27(2).
4
Khosa (n 1) para 46; Constitution s 27(1)(c).
LEGAL OPINION: 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)
1. Introduction
The Constitutional Court’s judgment in Khosa and Others v Minister of Social Development and
Others; Mahlaule and Others v Minister of Social Development and Others concerned the
constitutionality of legislation that excluded permanent residents from accessing social grants
solely because they were not South African citizens.1 The judgment is significant because it
established that the constitutional right of access to social security cannot be interpreted in
isolation from the foundational values of human dignity, equality and freedom.
The Court ultimately held that permanent residents fall within the meaning of “everyone” in
section 27(1) of the Constitution and that their exclusion from social assistance constituted
unfair discrimination and an unjustifiable limitation of their constitutional rights.2
2. Facts and Legal Issue
The applicants were permanent residents of South Africa who satisfied the other statutory
requirements for receiving social grants but were excluded because they were not South African
citizens. The relevant legislation restricted access to certain social assistance benefits to citizens.
The central constitutional question was whether the exclusion of permanent residents from the
social assistance system was consistent with the right of access to social security in section
27(1)(c), read with the state's obligation under section 27(2) to take reasonable legislative and
other measures, within available resources, to achieve the progressive realisation of that right.3
The applicants also relied upon the constitutional rights to equality, human dignity, life and
children's rights. The Court therefore had to consider the relationship between socio-economic
rights and the broader constitutional framework.
3. Interpretation of the Right of Access to Social Security
The Court adopted a purposive interpretation of section 27. The wording of section 27(1)
provides that “everyone” has the right to have access to social security, including appropriate
social assistance for persons unable to support themselves and their dependants.4 The Court
rejected an interpretation that would limit “everyone” to South African citizens.
1
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) paras 38–45.
2
Khosa (n 1) paras 46–56, 77–85.
3
Constitution of the Republic of South Africa, 1996 s 27(1)(c) and s 27(2).
4
Khosa (n 1) para 46; Constitution s 27(1)(c).
