Constitutional Court rules Human Rights Commission directives not binding

Top court says commission must approach courts to enforce findings, rejecting claim that ruling renders institution toothless.

The Constitutional Court ruled on Wednesday that directives issued by the South African Human Rights Commission following investigations into rights violations are not legally binding.¹²

Justice Steven Majiedt, reading the unanimous judgment, said that after the commission concludes investigations into complaints, it may issue recommendations for redress, but should respondents decline to comply, the commission would be required to litigate the matter on the underlying facts.¹

The ruling upheld a 2024 Supreme Court of Appeal decision that found the commission could only provide recommendations in its findings and had to approach courts to legally enforce its suggestions in cases where it found human rights violations.² The commission had asked the Constitutional Court to overturn that order.²

The case arose from a 2018 dispute in which Mpumalanga farm owner Gerhardus Boschoff restricted access to borehole water for the Mosotho family.¹ After an investigation, the commission issued formal directives ordering the restoration of water and meaningful engagement, but Boschoff did not comply.¹ The High Court dismissed the commission's application seeking a declaration that its directives were legally binding.¹

The Supreme Court of Appeal had confirmed that the commission 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.¹

The commission had argued before the Constitutional Court that the effect of the Supreme Court of Appeal's order made it a toothless vanguard of human rights, as it had no legal power to ensure redress in human rights violations without going to court.² The commission had interpreted section 184 of the constitution for the past 30 years as empowering it to take steps to secure appropriate redress where human rights have been violated, along with provisions in the commission's enabling act, to mean some of its decisions were legally binding.²

The top court found that the lack of binding power does not make the commission toothless in its constitutional mandate to protect human rights, as it can still investigate violations.²