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Supreme Court finds Human Rights Commission directives are not binding

- Lee-Anne Bruce

CALS notes the Supreme Court of Appeal's findings in considering whether the recommendations of the South African Human Rights Commission are binding

On Thursday, 15 August 2024, the Supreme Court of Appeal handed down judgment in an appeal brought by the South African Human Rights Commission. The Court was asked to consider whether the recommendations made by the Commission are legally binding. The judgment acknowledges the importance of Chapter Nine institutions, but finds that the Commission is only empowered to investigate human rights violations and make recommendations.  

Last week, the Supreme Court of Appeal handed down judgment in a matter which has important implications for the effectiveness of Chapter Nine institutions. The appeal was brought by the South African Human Rights Commission against Agro Data and Mr F. G. Boshoff. The Commission investigated a complaint that Agro Data and Mr Boshoff had cut off community access to a borehole on their land, thus limiting their right of access to sufficient water. The Commission directed the respondents to restore the supply of water and engage with the people living on the land.

When the respondents failed to comply with the directives, the Commission approached the High Court. They asked the Court to declare not only that these particular directives should be enforced, but that all directives issued by the Commission are binding. The High Court found that a case had not been made to order that all directives by the Human Rights Commission are binding. It further ordered that the directive to restore the water supply had no legal effect. The Commission then took the matter on appeal to the Supreme Court of Appeal.

The Supreme Court’s judgment acknowledges the importance of the right to water and the role played by the South African Human Rights Commission in our constitutional democracy, noting that the “SAHRC serves as a means to access justice, as well as to promote and protect human rights. In this regard, it can be regarded as an invaluable constitutional gift to our nation.” The judgment further notes that the “SAHRC’s recommendations need to be accorded respect” and “should be given serious consideration and implemented.” The judgment stops short, however, in ensuring that the directives issued by the Human Rights Commission are binding.

The Centre for Applied Legal Studies (CALS) intervened in the matter as a friend of the court. We sought to assist the Court in determining this important matter by presenting regional and international law that guide states in establishing national human rights bodies. We argued that these instruments emphasise the importance of interpreting the powers of institutions like the Human Rights Commission as broadly as possible to ensure they can fulfill their mandate. We further submitted that the Commission is an important avenue for marginalised communities to access remedies when their rights are violated.

“The South African Human Rights Commission plays an essential role as a human rights oversight body,” says Sithuthukile Mkhize from CALS. “It provides a necessary platform for communities to enforce their rights outside of a court. In order for the Commission to fulfill its constitutional mandate, we believe it is important for its directives to be binding under certain circumstances. We are disappointed with the finding in this matter and hope that it will be finalised by the Constitutional Court.”

Read the full judgment here. 

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