The apex court has dismissed the SAHRC’s appeal to have its directives automatically enforced, saying the commission was designed to ‘facilitate, engage and influence’, rather than compel. (Illustration: Bronwyn Webb) The South African Human Rights Commission (SAHRC) does not have the power to issue binding directives, the Constitutional Court has ruled.
Some commentators say this leaves the Chapter 9 institution with all bark and no bite, unless it applies to courts to enforce its directives. But the apex court says this is not so, and it remains a “potent and indispensable guardian of human rights”.
The issue first came before the Mpumalanga Division of the High Court in Mbombela in 2022 when the SAHRC wanted a “blanket order” that its directives are automatically binding. This was on the back of a case against Agro Data CC, which the commission found was restricting community access to borehole water on the De Doorn Hock Farm. Agro Data ignored the SAHRC directive to restore access to the borehole.
But Acting Judge Denise Greyling-Coetzer refused to make a declaratory order, saying: “It needs to be understood that the SAHRC is not a punisher of human rights violations – it is an educator, transformer and empowerer.”
On the merits, she ordered Agro Data to engage meaningfully with the community, with the assistance of the SAHRC.
Constitutional obligations
The SAHRC appealed to the Supreme Court of Appeal. It argued that if its directives were ignored, it would be unable to effectively fulfil its constitutional obligations. It said resource constraints made it impossible to litigate every complaint, and that vulnerable complainants would have no redress.
The appeal failed. The justices found that the word “assist” in the SAHRC Act was indicative of its function to act in a “supporting and enabling role”.
However, the court noted that the SAHRC recommendations should be respected and implemented.
The SAHRC then approached the apex court.
In a ruling handed down on Wednesday, Acting Justice Caroline Nicholls, writing for a unanimous court, said the question of the legal status of the SAHRC’s directives was of “national importance” and had significant implications.
‘Broad mandate’
She said that while all Chapter 9 institutions had a shared objective of checking government power and contributing to the transformation project, the SAHRC had a distinctly broad mandate, covering all human rights in both the public and private domain.
“It was created for the purpose of giving life to a culture of human rights through monitoring, education, research, investigation and assistance in security redress.
“These functions are suggestive of a body designed to facilitate, engage and influence, rather than control and compel. In this way it exerts co-operative control rather than coercive control.”
Justice Nicholls said the act empowered the SAHRC to “take steps to secure appropriate redress”, which was distinguishable from making an order or granting relief.
This meant that it was not empowered to provide a remedy itself, but to perform actions that supported or enabled redress.
While the commission had powers to investigate, summon information, compel explanations, enter premises and subpoena witnesses, these did not detract from the fact that it was essentially a non-coercive body.
The SAHRC was not a body capable of issuing binding directives, she said.
Clear textual signals
If the legislature had intended this, there would have been clear textual signals, such as the creation of consequences for non-compliance.
Turning to the earlier pronouncement by the Constitutional Court that the Public Protector had binding powers, which the SAHRC relied upon heavily in its submissions, Justice Nicholls said not all Chapter 9 institutions were the same and the SAHRC’s constitutional mandate was markedly different from that of the Public Protector.
The law entitled the Public Protector to “take remedial action”.
On the other hand, the SAHRC could do no more “than that which the Constitution and the law permit”, and it would have to approach courts to advance its cases.
“It must be stressed that recognising the absence of binding remedial powers does not diminish the constitutional importance of the SAHRC or render its work ineffectual. It is far from toothless. Properly understood, its strength lies precisely in its capacity to act in ways that courts cannot. It remains a potent and indispensable guardian of human rights within our constitutional scheme,” Justice Nicholls said, dismissing the appeal. DM
Originally published on GroundUp.