Human rights commission to seek clarity on its powers at ConCourt

The South African Human Rights Commission (SAHRC) believes the Constitutional Court is best placed to interpret a section of the constitution and clarify whether the commission has the power to issue binding directives. 

The commission filed papers at the Constitutional Court appealing against a recent judgment by the Supreme Court of Appeal (SCA).

The commission is of the view that section 184 of the constitution obliges it to protect human rights and secure redress in cases where they have been violated. 

“Upon careful consideration of the judgment and its implications, the commission firmly believes the Constitutional Court, as the apex court, is best placed to interpret section 184 of the constitution,” it said. 

Last month, the SCA dismissed an appeal by the commission and upheld a 2022 decision of the Mbombela high court which found the commission did not have the authority to issue binding directives, and that it had to enforce all its directives through a court of law. 

The SCA confirmed the SAHRC’s directives were not binding and ruled the respondents could be compelled to comply with directives only by means of a court order.

It held the SAHRC’s powers were distinguishable from those of the public protector, which had been found to be binding in EFF v Speaker of the National Assembly. 

The commission’s case emanated from a 2018 complaint by the occupiers of a farm in Doornhoek in Mpumalanga, who alleged that in 2016 Francois Boshoff unilaterally introduced restrictions on the occupiers’ use of borehole water on the farm, depriving them of access to this water source. 

After investigating, the commission found Agro Data CC and Boshoff had violated the occupiers’ rights of access to water protected by the Extension of Security of Tenure Act and the constitution.

The commission also found the occupiers’ right to dignity had been infringed. It subsequently issued directives to Agro Data CC and Boshoff in 2019.

At the time, it ordered them to restore the supply of borehole water to the occupiers, begin engaging with the occupiers about the management of water on the farm, and provide the occupiers with relevant information about the water supply, such as scientific reports and costs.

When Agro Data CC and Boshoff failed to comply with these directives, the commission launched an application in the Mbombela high court, which dismissed the SAHRC’s application for declaratory relief. 

The high court ordered Agro Data CC and Boshoff to make relevant information available to the occupiers so that they could meaningfully engage with Agro Data CC and Boshoff about water-management issues on the farm. It also ordered the commission to facilitate the engagement.

However, dissatisfied with this outcome, the SAHRC sought leave to appeal the judgment in the SCA.

Commission chair Chris Nissen emphasised the significance of the SAHRC now approaching the Constitutional Court for a final ruling on the issue.

“This case is critical, as it will provide legal clarity, enabling the commission to protect human rights and restore dignity to the thousands of people who seek our help,” he said.

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