Constitutional Court rules Human Rights Commission directives not binding

Apex court says SAHRC must approach courts to enforce recommendations when respondents decline to comply.

The Constitutional Court ruled on Wednesday that directives issued by the South African Human Rights Commission following investigations into complaints are not legally binding.¹²³⁴ Justice Steven Majiedt delivered the unanimous judgment, stating that when respondents decline to comply with SAHRC recommendations, the commission must litigate the matter on the underlying facts in court.¹²

The case originated from a 2018 dispute in Mpumalanga where farm owner Gerhardus Boshoff, operating through Agro Data CC, restricted community access to borehole water on the De Doorn Hock Farm.¹²⁷⁸ After investigating, the SAHRC issued formal directives ordering restoration of water access and meaningful engagement, but Boshoff did not comply.²⁷ The commission sought a High Court order declaring its directives legally binding, but the Mbombela High Court dismissed the application.²⁵⁷ The Supreme Court of Appeal confirmed in 2024 that while the SAHRC has the power to secure appropriate redress, it lacks authority to issue binding remedial orders like those of the Public Protector.²⁷⁸

The SAHRC had argued before the Constitutional Court that without binding powers it could not fulfill its constitutional obligations and would be rendered "toothless" in its mandate to protect human rights.³⁴⁷ The commission had interpreted section 184 of the constitution for three decades as empowering it to take steps to secure appropriate redress where human rights have been violated.³⁴

The Constitutional Court rejected the characterisation that the commission is toothless.³⁴⁶ Justice Majiedt said the SAHRC remains a "potent and indispensable guardian of human rights" whose influence lies in its investigative authority, support of litigation, shaping of state official conduct, informing public debate, and exerting normative pressure on state organs and private actors.⁶⁷ The court distinguished the SAHRC from the Public Protector, noting that not all Chapter 9 institutions are the same and that the SAHRC's mandate is to act cooperatively rather than coercively.⁵⁷⁸

SAHRC Commissioner Tshepo Madlingozi said the commission is considering approaching Parliament to amend the SAHRC Act to clarify that its recommendations are binding.⁹ The commission receives 10,000 complaints annually and lacks the litigation budget to enforce non-compliance in court for all cases.¹ Madlingozi expressed concern that "constitutional delinquents" would take advantage of the ruling to ignore the commission's directives.⁹