Foreigners tap into SA welfare
2004-03-04 22:08
Johannesburg - In a move that could cost the taxpayer billions of rand, the Constitutional Court has ruled on Thursday that foreigners permanently living in South Africa are eligible for social grants.
In the ruling - a majority decision of seven against two - certain sections of the Social Assistance Act, which refuses social grants to people from other countries even if they have permanent right of abode - were declared unconstitutional.
The applications were made by Mozambican citizens with permanent residence rights in South Africa. They brought the application on behalf of themselves, their children, people from other countries and as a class action suit of all foreigners with right of abode.
They argued that the fact that their exclusion from social grants infringed on their rights to equal treatment, social security and children's rights.
Judge Yvonne Mokgoro, who delivered the majority ruling, said the Constitution gave "everyone" the right to social security and "everyone" would include those residing in the country legally. She found that the exclusion of the foreigners were discriminating and unfair.
"There is no doubt that the applicants (the foreigners with right of abode) are part of a vulnerable group of people in the community who deserve protection under the Constitution. What we are dealing with is the deliberate and legally approved unequal treatment of part of the South African community.
"In my opinion, the importance that everyone who lives in South Africa permanently have access to social assistance weighs heavier than government's financial problems and problems with immigration.
"The position of people with permanent right of abode is totally different to people who are in the country temporarily or as illegal immigrants. The first made South Africa their home - temporary residents and illegal immigrants do not qualify for social grants."
In their minority decision, judges Stanley Ngcobo and Toli Madala said the "harsh reality" was that government "simply had inadequate means to help everyone who entered the country's borders searching for help".
They found that government was justly concerned that providing social grants to foreigners would encourage people from neighbouring states to flock to South Africa.
However, they agreed with the majority ruling that children born in South Africa from foreign parents had the right to child grants.
The minister of social development and the director general of this department were ordered to carry the cost of the case.
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