MOKGORO J
[82]
In my view the importance of providing access to social assistance to all
who live permanently in South Africa and the impact upon life and dignity that
a denial of such access has, far outweighs the financial and immigration
considerations on which the state relies. For the same reasons, I am satisfied
that the denial of access to social grants to permanent residents who, but for
their citizenship, would qualify for such assistance does not constitute a
reasonable legislative measure as contemplated by section 27(2) of the
Constitution.
[83]
There is a difficulty in applying section 36 of the Constitution to the
socio-economic rights entrenched in sections 26 and 27 of the Constitution.
Sections 26 and 27 contain internal limitations which qualify the rights. The
state’s obligation in respect of these rights goes no further than to take
“reasonable legislative and other measures within its available resources to
achieve the progressive realisation” of the rights. If a legislative measure taken
by the state to meet this obligation fails to pass the requirement of
reasonableness for the purposes of sections 26 and 27, section 36 can only have
relevance if what is “reasonable” for the purposes of that section, is different to
what is “reasonable” for the purposes of sections 26 and 27.
[84]
This raises an issue which has been the subject of academic debate but
which has not as yet been considered by this Court.85 We heard no argument
85
See Van der Walt The Constitutional Property Clause (Juta, 1997) 92-5; Rautenbach General
Provisions of the South African Bill of Rights (Butterworths, 1995) 84-5 and 106-07; De Waal et al The
51
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