Constitutional Court rules Human Rights Commission directives not legally binding

The apex court found the SAHRC must approach courts to enforce its recommendations, prompting the commission to consider seeking legislative amendments.

The Constitutional Court ruled on Wednesday that directives issued by the South African Human Rights Commission are not legally binding and that the commission must litigate cases when respondents refuse to comply with its recommendations¹²³⁴. Justice Steven Majiedt delivered the unanimous judgment, stating that after the SAHRC 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 facts¹².

The case arose from a 2018 dispute in Mpumalanga in which farm owner Gerhardus Boshoff restricted access to borehole water for the Mosotho family¹². After an investigation, the SAHRC issued formal directives ordering restoration of water access and meaningful engagement, but Boshoff did not comply²⁷. The commission sought a High Court order declaring its directives legally binding, but the application was dismissed². The Supreme Court of Appeal confirmed in 2024 that while the SAHRC has power to take steps to secure appropriate redress, it lacks authority to issue binding remedial orders like those of the Public Protector²⁵⁷.

The SAHRC had argued before the Constitutional Court that the Supreme Court of Appeal order rendered it a toothless vanguard of human rights, as it had interpreted section 184 of the Constitution for the past 30 years as empowering it to take steps to secure appropriate redress³⁴. The commission contended that resource constraints made it impossible to litigate every complaint and that vulnerable complainants would have no redress⁷.

The Constitutional Court rejected this characterization, with Justice Majiedt stating that the commission remains far from toothless and that its influence lies in deployment of powers including extensive investigative authority, support of litigation, shaping conduct of state officials, informing public debate, and exerting normative pressure on state organs and private actors⁶. The court distinguished the SAHRC from the Public Protector, saying not all Chapter 9 institutions are the same and that the commission's mandate is to act cooperatively rather than coercively⁵⁸.

SAHRC commissioner Tshepo Madlingozi said the commission is considering approaching Parliament to amend the SAHRC Act to clarify that its recommendations are binding⁹¹⁰. He expressed concern that constitutional delinquents would interpret the judgment to mean the commission cannot tell them anything⁹¹⁰. The commission receives 10,000 complaints annually and lacks the litigation budget to enforce non-compliance in court for all cases¹.