SA Human Rights Commission directives not legally binding, says top court

The SA Human Rights Commission’s directives, aimed at securing appropriate redress where human rights have been violated, are not legally binding but are rather recommendations, the Constitutional Court ruled on Wednesday.

The ruling by the court is a landmark judgment on the scope of the commission’s legal powers.

Last year, the SAHRC asked the top court to overturn a Supreme Court of Appeal (SCA) order from 2024 that ruled the institution’s directives were not legally binding. The SCA ruled that the commission could only provide recommendations in its findings and had to approach courts to legally enforce its suggestions in cases where it found human rights violations.

The order caused a stir for the commission, which has interpreted section 184 of the constitution for the past 30 years as empowering it “to take steps to secure appropriate redress where human rights have been violated”, along with the SAHRC Act’s provisions to mean some of its decisions were legally binding.

The SAHRC argued before the Constitutional Court that the effect of the SCA’s order made the commission a “toothless” vanguard of human rights, as it had no legal power to ensure redress in human rights violations without going to court.

The top court, in a judgment read by justice Steven Majiedt, found the commission’s directives are not legally binding.

The court found that this, however, does not make the commission toothless in its constitutional mandate to protect human rights. It can still investigate, subpoena witnesses and approach the court to make the outcome a binding order.

The commission was established in 1995 shortly after the fall of the apartheid government, which violated human rights through racially discriminatory systems.

The showdown regarding the legal authority of the commission concerns a case the commission litigated against a farm owner, Gerhardus Boshoff, and a company called Agro Data CC, which owns De Doorn Hock Farm in Mpumalanga.

Boshoff had bought the farm, which had occupiers including Tubatsi Mosotho, who had lived on the farm since 1965, and restricted occupiers of the farm from accessing borehole water and forced them to pay for water in 2016.

The commission, in its investigations, found Boshoff violated the occupiers’ right to be denied access to water. This was because the occupiers had an agreement with a previous owner to use the borehole.

The commission thereafter directed Boshoff to restore the supply of borehole water to the occupiers. When Boshoff did not adhere to the directives, the commission went to court seeking a declaratory order that its directives in terms of the constitution were binding, and that a refusal to comply was unlawful.

The Mpumalanga High Court found the directive by the commission not legally binding. The SCA made the same finding.

The SAHRC relied on a previous top court judgment, where decisions by the public protector, also a Chapter 9 institution, were legally binding. This was pinned on the constitution’s provision that empowers the public protector “to take appropriate remedial action”.

No provision in the constitution expressly stipulates the commission’s decisions to be legally binding.