MOKGORO J
however, where the value of human dignity is offended, the primary
constitutional breach occasioned may be of a more specific right such as the
right to bodily integrity, the right to equality or the right not to be subjected to
slavery, servitude or forced labour.”45
[42]
Equality is also a foundational value of the Constitution and informs
constitutional adjudication in the same way as life and dignity do. Equality in
respect of access to socio-economic rights is implicit in the reference to
“everyone” being entitled to have access to such rights in section 27. Those
who are unable to survive without social assistance are equally desperate and
equally in need of such assistance.
[43]
This Court has dealt with socio-economic rights on four previous
occasions.46 What is clear from these cases is that section 27(1) and section
27(2) cannot be viewed as separate or discrete rights creating entitlements and
obligations independently of one another. Section 27(2) exists as an internal
limitation on the content of section 27(1) and the ambit of the section 27(1)
right can therefore not be determined without reference to the reasonableness of
the measures adopted to fulfil the obligation towards those entitled to the right
in section 27(1).47
45
Above n 9 at para 35.
46
Ex Parte Chairperson of the Constitutional Assembly: In re Certification of the Constitution of the
Republic of South Africa, 1996 1996 (4) SA 744 (CC); 1996 (10) BCLR 1253 (CC) at paras 76-8;
Soobramoney v Minister of Health, KwaZulu-Natal 1998 (1) SA 765 (CC); 1997 (12) BCLR 1696
(CC); Grootboom above n Error! Bookmark not defined.; Minister of Health and Others v Treatment
Action Campaign and Others (2), 2002 (5) SA 721; 2002 (10) BCLR 1033 (CC).
47
Id Soobramoney at para 22; Grootboom at para 74; Treatment Action Campaign at paras 23 and 39.
28
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