The South African Human Rights Commission’s (SAHRC) directives are not binding and can only be enforced through a court order, the Supreme Court of Appeal ruled this week.
The SCA held that the SAHRC’s powers were distinguishable from those of the public protector, which were earlier deemed to be binding by a court ruling.
The SCA emphasised 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 court 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 SCA thus dismissed an appeal by the SAHRC, which had maintained that its directives should be binding.
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 main question the court was asked to consider was whether the directives issued by the SAHRC were legally binding.
The Centre for Applied Legal Studies (Cals), which intervened in the matter as a friend of the court, said the matter had important implications for the effectiveness of Chapter 9 institutions.
The appeal was brought against Agro Data and a Mr F G Boshoff. The Commission investigated a complaint that Agro Data and 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 Mpumalanga High Court in Mbombela. It asked the court to declare not only that the particular directives should be enforced, but that all directives issued by the commission were binding.
The court found that a case had not been made to order that all directives by the Commission were binding. It further ordered that the directive to restore the water supply had no legal effect.
The Commission subsequently took the matter on appeal.
Judge Yvonne Mbatha, who wrote the concurring judgment, in the opening of her judgment, said the forebears of our Constitution found it in their wisdom to introduce institutions to strengthen our constitutional democracy.
These institutions were listed in Chapter 9 of the Constitution, of which the SAHRC is one. The judge said each of the Chapter 9 institutions were given functions and powers to achieve their constitutional objects.
According to her, the ultimate consideration was the power awarded to each Chapter 9 institution. She added that although Chapter 9 institutions were established to bolster our constitutional democracy, it did not necessarily imply that they all possess binding remedial powers.
“They fulfil distinct mandates and have effective ways of fulfilling their purpose, as provided by the Constitution.” She concluded that the SAHRC, however, had no powers to make binding directives without a court order.
Cals earlier submitted that the SAHRC was an avenue for vulnerable and marginalised communities to access remedies when their rights were violated. It was therefore important that the recommendations of the commission have binding legal effect in appropriate circumstances, it argued.
According to Cals, the SAHRC provided a platform for communities to enforce their rights outside of a court. In order for the Commission to fulfil its constitutional mandate, it was important for its directives to be binding under certain circumstances, it said.
While finding that the SAHRC’s findings were not binding, Judge Mbatha did acknowledge that the Chapter 9 institutions were anchors of our constitutional democracy.
“They are independent and must exercise their powers and perform their functions without fear, favour or prejudice. No person or organ of state may interfere with the exercise of their functions,” she said.
Pretoria News