NGCOBO J
in the Bill of Rights. Socio-economic rights must be understood in the context
of the founding values of our Constitution. Access to socio-economic rights is
crucial to the enjoyment of the other rights mentioned in the Bill of Rights, in
particular the enjoyment of human dignity, equality and freedom. A denial of
access to a social welfare scheme may, as demonstrated by this case, therefore
have an impact on more than one constitutional right.
We are therefore
concerned with a statute implicating multiple constitutional rights that reinforce
one another at their point of intersection.
The problem of methodology
[105] But if section 27 governs the present constitutional challenge, the
problem of a methodological approach arises. The obligations of the state
under section 27(2) are limited to taking “reasonable legislative and other
measures.” The main judgment regards this as an internal limitation on the
right of access to social security. I agree. But is it possible to find that a
measure is reasonable within the meaning of subsection 2 yet not reasonable
and justifiable under section 36(1), the limitation clause?
[106] Let us take a non-controversial group, the temporary visitors, which the
main judgment also accepts can legitimately be excluded from the social
welfare benefits. If their exclusion would be reasonable under section 27(2), is
the state required to show also that their exclusion is reasonable and justifiable
under section 36(1)? This raises a number of related questions, including,
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