THE Constitutional Court has unanimously ruled that the South African Human Rights Commission (SAHRC) lacks the authority to issue binding directives, requiring it to seek court intervention for enforcement.
Image: South African Human Rights Commission
THE Constitutional Court has unanimously ruled that the South African Human Rights Commission (SAHRC) lacks the authority to issue binding directives, requiring it to seek court intervention for enforcement.
This decision stems from a case involving land access rights on the De Doorn Hoek farm, IOL reported.
The Constitutional Court ruled that if the SAHRC’s recommendations are ignored, it, or affected parties, must approach a court for relief on the merits of the matter.
The case arises from a finding by the SAHRC that land occupants on the farm De Doorn Hoek (owned by AgroData) should be given free access to borehole water.
The Mpumalanga High Court and the Supreme Court of Appeal earlier ruled in AgroData’s favour that the finding was not enforceable, but the SAHRC appealed the rulings.
In August, the SCA upheld the 2022 decision of the Mpumalanga High Court, stating that the Commission does not have the authority to issue binding directives. Instead, it must enforce all its directives through a court of law.
The SAHRC believed that the Constitutional Court is best placed to interpret Section 184 of the Constitution. This section mandates the Commission to protect human rights and secure redress in cases of human rights violations.
In May 2018, the SAHRC received a complaint from occupiers on the farm De Doorn Hoek in Mpumalanga, after the owners of the land, AgroData, allegedly placed restrictions on the occupiers’ access to borehole water in 2016.
The SAHRC investigated the matter and made findings that were ultimately not implemented by the landowner. In an attempt to have the directives enforced, the Commission turned to the Mpumalanga High Court in Mbombela.
However, this court dismissed the SAHRC’s application in March 2022 and ruled that, although the SAHRC can make recommendations, they could not prove that all directives issued by the SAHRC are binding.
In response, the SAHRC approached the SCA to appeal this decision. However, the court of appeal upheld the judgment of the Mpumalanga High Court.The SCA held that the SAHRC was an independent Chapter 9 institution, subject only to the Constitution and the law. It said that the Commission’s directives were not self-executing.
The SCA further held that while the SAHRC had the power to investigate and report on human rights violations, it must approach a court to secure appropriate redress where rights are violated.
The Commission argued that its directives had to be legally binding under certain circumstances so that it could secure appropriate redress in cases of human rights violations.
The question before the apex court was whether the SAHRC has the power to issue binding and legally enforceable directives under section 184(2)(b) of the Constitution, which provides that the SAHRC has the power to “take steps to secure appropriate redress where human rights have been violated.
The SAHRC contended that by ignoring its directives, the respondents had undermined the rule of law and interfered with its functioning, in violation of the Constitution. The SAHRC relied on a case involving the EFF where this court held that the Public Protector’s directives might, at times, have a binding effect to allow for the effective address of complaints.
AgroData and the other respondents denied that the SAHRC has the power to issue orders to which private individuals had to automatically adhere. They argued that they could not supply free borehole water to the more than 100 occupiers of the Doornhoek farm, some of whom were unlawful occupiers who had alternative access to water from the river and the municipality.
Acting Judge Caroline Nicholls, who wrote the ConCourt judgement, said the Constitution only empowers the SAHRC to take steps to secure appropriate redress where human rights have been violated.
According to her, the SCA was thus correct in finding that the Constitution does not say that the SAHRC must “provide” appropriate redress. What is required is a clear foothold in the enabling provisions authorising the SAHRC to take binding action, and none is present in the Constitution or the SAHRC Act. If the legislature had intended to grant binding authority to the SAHRC, one would expect clear textual signals such as the creation of consequences for non-compliance, she said.
Judge Nicholls pointed out that the SAHRC Act is silent on what follows if a party fails to comply, reinforcing the view that the SAHRC’s authority is supervisory and persuasive rather than coercive.