NGCOBO J
involved in this case?
The right of access to social security is no doubt
implicated because this case is concerned with access to social security. But
the impugned provisions exclude non-citizens from benefiting from the
scheme. The exclusion of non-citizens from the scheme manifestly implicates
the right not to be discriminated against. This question was not addressed in
argument. It need not be considered on this occasion. The outcome would be
the same under either constitutional provision.
[103] My colleague, Mokgoro J, has approached the matter on the footing that
the right of access to social security governs the question presented in this case.
There is much to be said for this view. The parties themselves have framed the
legal issue as involving the right of permanent residents not to be excluded
from the benefits system.
On this logic, the primary right implicated is
guaranteed by section 27 of the Constitution. The constitutional validity of the
exclusion must therefore be examined by reference to the right to have access
to social security. But, as the main judgment acknowledges in this case, the
result under either of these constitutional provisions would be the same.
[104] That is not to say that the other rights asserted by the applicants do not
enter the picture. The Bill of Rights is the cornerstone of our constitutional
democracy and it “affirms the democratic values of human dignity, equality
and freedom.”11 The founding values will inform most, if not all, of the rights
11
Section 7(1) of the Constitution.
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