MOKGORO J
on the matter and do not have the benefit of a judgment of the High Court. In
the circumstances, it is undesirable to express any opinion on the issue unless it
is necessary to do so for the purposes of the decision in this case. In my view it
is not necessary to decide the issue. Even if it is assumed that a different
threshold of reasonableness is called for in sections 26 and 27 than is the case
in section 36, I am satisfied for the reasons already given that the exclusion of
permanent residents from the scheme for social assistance is neither reasonable
nor justifiable within the meaning of section 36.
[85]
The Constitution vests the right to social security in “everyone”. By
excluding permanent residents from the scheme for social security, the
legislation limits their rights in a manner that affects their dignity and equality
in material respects.
Dignity and equality are founding values of the
Constitution and lie at the heart of the Bill of Rights. Sufficient reason for such
invasive treatment of the rights of permanent residents has not been
established. The exclusion of permanent residents is therefore inconsistent
with section 27 of the Constitution.
Remedy
Bill of Rights Handbook 4 ed (Juta, 2001) 451; Liebenberg “Socio-economic Rights” in Chaskalson et
al (eds) Constitutional Law of South Africa (Juta, 1999) 41-7 to 41-8; De Vos “Pious Wishes or
Directly Enforceable Human Rights? Social and Economic Rights in South Africa’s 1996 Constitution”
(1997) 13 SAJHR 67 at 79-80; Pieterse “Towards a Useful Role for Section 36 of the Constitution in
Social Rights Cases? Residents of Bon Vista Mansions v Southern Metropolitan Local Council” (2003)
120 SALJ 41.
52
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