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Unwarranted retrogression
164.
Even without reference to the right to equality before the law, the
requirement of 7 years’ residence for receipt of CSSA is unconstitutional. If
necessary, I would be prepared so to hold on the following basis. The
introduction of a 7-year requirement to replace the one-year requirement moved
the previous social welfare system backwards. It therefore runs counter to
art.145 of the Basic Law which, as far as that system is concerned, contemplates
progression and leaves no room for retrogression except in a situation so dire as
to lie beyond the contemplation of the constitution. And no such situation has
arisen. So the increase from one year’s residence to 7 years’ residence amounts
to unwarranted retrogression and is therefore unconstitutional.
165.
But I am content to hold that increase unconstitutional on another
basis, being the one to which I now turn.
Unjustified distinction
166.
We are in this case concerned with equality in regard to a socio-
economic right.
In Social Rights Jurisprudence:
International and Comparative Law (ed.
Emerging Trends in
Malcom Langford) (2008)
(Cambridge University Press) at the page immediately preceding the table of
contents, what Justice Albie Sachs of the South African Constitutional Court
said about socio-economic rights when speaking at the Southern Methodist
University School of Law in 1999 is quoted. He said:
“There is growing acceptance all over the world that certain core fundamental values
of a universal character should penetrate and suffuse all governmental activity,
including the furnishing of the basic conditions for a dignified life for all.
I believe that 21st-century jurisprudence will focus increasingly on socio-economic
rights.”
I respectfully share that perception and that belief.
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