Directives that emerge from SA Human Rights Commission investigations are not legally binding, the Constitutional Court has ruled.

• The Constitutional Court ruled that SA Human Rights Commission directives are not legally binding and that the commission must instead litigate when respondents decline to comply.
• The case arose from a 2018 Mpumalanga water access dispute in which farm owner Gerhardus Boshoff ignored the commission’s directives to restore borehole access to the residents.
• The SAHRC says it receives 10 000 complaints annually and that it lacks the litigation budget to enforce non-compliance in court, prompting plans to approach Parliament for legislative amendments.

Directives that emerge from SA Human Rights Commission (SAHRC) investigations are not legally binding, the Constitutional Court has ruled.

“After the SAHRC concludes investigations into complaints, it may issue recommendations for redress. Should respondents decline, the SAHRC would be required to litigate the matter on the underlying facts,” Justice Steven Majiedt said when he read the unanimous judgment on Wednesday.

The SAHRC challenged a case arising from a 2018 dispute in which the farm owner, Gerhardus Boschoff, restricted access to borehole water for the Mosotho family in Mpumalanga.

After an investigation, the SAHRC issued formal directives ordering the restoration of water and meaningful engagement. However, Boshoff did not comply.

The SAHRC sought a High Court order declaring their directives legally binding, but the application was dismissed.

On appeal, the Supreme Court of Appeal confirmed that the SAHRC has the power to “take steps to secure appropriate redress” but lacks the authority to issue binding remedial orders like those of the Public Protector.

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The court ruled that the SAHRC must instead approach a competent court to enforce its findings, as part of its constitutional mandate.

From there, the SAHRC took the matter to the Constitutional Court.

Majiedt explained that the court’s interpretation centred on Section 184 of the Constitution and the phrase “take steps to secure appropriate redress”.

The court found:

“It contains no enforcement mechanism. The absence of any statutory consequences further supports the conclusion that they are not intended to be binding,” Majiedt said.

The court found that the SAHRC “was always intended to be facilitative rather than adjudicative” and that the “enforcement powers” were “rejected” during the constitutional drafting process.

“While SAHRC directives have legal status, they do not automatically create binding obligations. They require constitutional authority, which is absent here,” the court ruled.

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However, the court emphasised that the lack of binding remedial powers “does not diminish or render [the SAHRC] ineffectual”.

“The commission is far from toothless, and its strength lies precisely in its capacity to act in ways the court cannot.”

“As such, the SAHRC report and findings may serve as evidentiary foundation [in litigation] but do not create legal obligations.”

SAHRC commissioner Tshepo Madlingozi noted the mountain of challenges the SAHRC would face in attempting to enforce its recommendations.

Madlingozi said:

“This was not about us as commissioners. It’s about the millions of South Africans who don’t have access to water, electricity, or healthcare. For those people, we’d have to find creative ways to assist. We are considering approaching Parliament to amend legislation. “The court puts a lot of stock in the act, and it doesn’t say it is binding. So we must approach Parliament.”

AfriForum campaign manager Louis Boshoff, however, welcomed the ruling, as the lobby group had applied as a friend of the court to argue that the commission was not within its constitutional powers.

“We believe it sets an important precedent for upcoming findings and investigations, especially seeing this was a unanimous decision,” Boshoff told News24.

When asked about the fate of the families who were still prevented from accessing the water the commission aimed to restore, Boshoff said AfriForum was not disputing the specific recommendations.

“One must remember that the Constitutional Court did not find against the investigation or the findings in the original matter. The SAHRC may have been correct in that finding, but it needed to approach a court. Instead, it approached the court to say that all of their findings should be binding,” he said.

“The SAHRC took the wrong approach by claiming its directives are binding in every case. They should have approached the court to make it an order of the court.”