Constitutional Court rules Human Rights Commission directives not legally binding

The apex court found the commission must litigate to enforce findings, rejecting its claim to binding remedial powers.

The Constitutional Court ruled on Wednesday that directives issued by the South African Human Rights Commission following investigations are not legally binding, requiring the commission to seek court enforcement when respondents refuse to comply.¹²³⁴⁵

Justice Steven Majiedt delivered the unanimous judgment, stating that after the commission concludes investigations into complaints, it may issue recommendations for redress, but should respondents decline, the commission would be required to litigate the matter on the underlying facts.¹²³⁴

The case arose from a 2018 dispute in Mpumalanga in which farm owner Gerhardus Boshoff restricted access to borehole water for the Mosotho family.¹²³⁴ After an investigation, the commission issued formal directives ordering the restoration of water access and meaningful engagement, but Boshoff did not comply.² The commission sought a High Court order declaring its directives legally binding, but the application was dismissed.²

The Supreme Court of Appeal confirmed in 2024 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.²³⁴ The commission had interpreted section 184 of the constitution for 30 years as empowering it to take steps to secure appropriate redress where human rights have been violated, meaning some of its decisions were legally binding.³⁴

The commission argued before the Constitutional Court that 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.³⁴ The Constitutional Court found that this does not make the commission toothless in its constitutional mandate to protect human rights.³⁴ The court distinguished the commission from the Public Protector, which can take remedial action, saying not all Chapter 9 institutions are the same and the commission's mandate is to act cooperatively rather than coercively.⁵

The court described the commission as designed to "facilitate, engage and influence" rather than compel, and said it remains a "potent and indispensable guardian of human rights."⁵