NGCOBO J
[112] However, that does not mean that there can be no limitation imposed on
those who may have access to that system. The Constitution contemplates that
the rights in the Bill of Rights “are subject to limitations contained or referred
to in section 36, or elsewhere in the Bill.”15 The right to have access to social
security, which is a right contained in the Bill of Rights, is therefore subject to
limitation in terms of section 36.
[113] Confining social security to citizens in the Act does constitute a
limitation on the right of access to social security of those applicants who are
not citizens. What has to be determined therefore is whether that limitation is
reasonable and justifiable in terms of section 36.16 And this question involves a
proportionality analysis that takes into account the nature of the right, the
nature and extent of the limitation, the importance of the purpose of the
15
Section 7(3) of the Constitution.
16
Section 36 provides:
“(1)
(2)
The rights in the Bill of Rights may be limited only in terms of law of
general application to the extent that the limitation is reasonable and
justifiable in an open and democratic society based on human dignity,
equality and freedom, taking into account all relevant factors, including—
(a)
the nature of the right;
(b)
the importance of the purpose of the limitation;
(c)
the nature and extent of the limitation;
(d)
the relation between the limitation and its purpose; and
(e)
less restrictive means to achieve the purpose.
Except as provided in subsection (1) or in any other provision of the
Constitution, no law may limit any right entrenched in the Bill of Rights.”
71
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