Constitutional Court rules Human Rights Commission directives are not legally binding

The ruling clarifies that the commission must approach courts to enforce its findings after investigations into rights violations.

The Constitutional Court ruled on Wednesday that directives issued by the South African Human Rights Commission following investigations into complaints are not legally binding, but constitute recommendations.¹²³

Justice Steven Majiedt, reading the unanimous judgment, stated that after the commission concludes investigations into complaints, it may issue recommendations for redress, and should respondents decline to comply, the commission would be required to litigate the matter on the underlying facts.¹²³

The ruling emerged from a 2018 dispute in which farm owner Gerhardus Boschoff restricted access to borehole water for the Mosotho family in Mpumalanga.¹ After an investigation, the commission issued formal directives ordering the restoration of water and meaningful engagement, but Boschoff did not comply.¹ The commission sought a High Court order declaring their directives legally binding, but the application was dismissed.¹

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.¹²³ The court ruled that the commission must instead approach a competent court to enforce its findings.¹²³

The commission had asked the Constitutional Court to overturn the Supreme Court of Appeal order, arguing it rendered the institution a toothless vanguard of human rights.²³ For 30 years, the commission had interpreted section 184 of the constitution 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.²³

The Constitutional Court found that while the directives are not legally binding, this does not make the commission toothless in its constitutional mandate to protect human rights.²³