Constitutional Court rules Human Rights Commission directives are not legally binding

The apex court found the SAHRC must approach courts to enforce findings when respondents decline to comply with recommendations.

The Constitutional Court ruled on Wednesday that directives issued by the South African Human Rights Commission after investigations are not legally binding, requiring the commission to litigate when respondents refuse compliance¹²³⁴⁵⁶. Justice Steven Majiedt delivered the unanimous judgment²³⁴.

The case arose from a 2018 dispute in Mpumalanga in which farm owner Gerhardus Boshoff restricted borehole water access for the Mosotho family¹². After investigating, the SAHRC issued directives ordering restoration of water access and meaningful engagement, but Boshoff did not comply². 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 Protector²⁵.

The SAHRC had argued before the Constitutional Court that the effect of the SCA's order made the commission a "toothless" vanguard of human rights, as it had no legal power to ensure redress without going to court³⁴. The commission had interpreted section 184 of the constitution for the past 30 years as empowering it to take binding steps where human rights have been violated³⁴.

The Constitutional Court found that the absence of binding enforcement powers does not make the commission toothless³⁴⁶. "The Human Rights Commission is far from toothless," Majiedt said, adding that "its influence lies in the deployment of the powers conferred upon it by the Constitution and the SAHRC Act, including the exercise of extensive investigative authority, the support of litigation, the shaping of the conduct of state officials, the informing of public debate, and the exertion of normative pressure on organs of state and private actors alike"⁶. The court said the SAHRC was designed to "facilitate, engage and influence" rather than compel⁵.

The court distinguished the SAHRC from the Public Protector, which can "take remedial action", saying not all Chapter 9 institutions are the same and the SAHRC's mandate is to act cooperatively rather than coercively⁵. The SAHRC stated it receives 10,000 complaints annually and lacks the litigation budget to enforce non-compliance in court, prompting plans to approach Parliament for legislative amendments¹.