SAHRC's directives are not legally binding - Constitutional Court
The Constitutional Court found that rulings made by the SAHRC are not binding as the law and the Constitution are silent on this issue.
Image: Thys Dullaart
The Constitutional Court has unanimously ruled that the South African Human Rights Commission (SAHRC) lacks the authority to issue binding directives.
The 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.
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.
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.