This follows the Supreme Court of Appeal’s decision on 15 August 2024, which upheld the 2022 decision of the Mpumalanga High Court. Both courts held that the Commission’s directives are not binding. Instead, it must enforce all its directives through a court of law. After careful consideration of the judgment and its broader implications for human rights protection in South Africa, the Commission took a decision to take the matter to the Constitutional Court.

The Commission firmly believes that the apex court, is best placed to interpret Section 184 of the Constitution, which mandates the Commission to protect human rights and secure redress where human rights have been violated. This case originates from a complaint by Mr. Tubatsi Mosotho and other occupiers of the De Doorn Hock Farm in Mpumalanga.

The complainants alleged that Mr. Francois Gerhardus Boshoff unilaterally imposed restrictions on their use of borehole water on the farm, thereby depriving them of access to water essential of daily living. Following its investigation, the SAHRC found that Agro Data CC and Mr. Boshoff violated the occupiers' rights to access to water as specified by section 6(2)(e) of the Extension of Security of Tenure Act 62 of 1997 (ESTA) and section 27(1)(b) of the Constitution.

The SAHRC issued directives requiring Agro Data CC to restore water within 7 days. The Commission had issued further directions for the parties to within 30 days engage in good faith discussions about the management of water on the farm to ensure equitable sharing of this scarce resource. When the respondents' failed to adhere to the directives, the SAHRC approached the High Court for a declaratory relief.

Both the High Court and later the SCA held that:

1. The SAHRC’s directives are not legally binding and cannot compel compliance without a court order.
2. The Commission must approach a court, tribunal, or alternative dispute resolution process to secure redress where its recommendations are ignored.
3. The SAHRC’s constitutional powers are distinct from those of the Public Protector, whose remedial powers are expressly binding.
4. There is no hierarchy among Chapter 9 Institutions, and the High Court erred in suggesting this.
5. Although not binding, the Commission’s recommendations must be respected, given serious consideration, and implemented, unless valid reasons exist to depart from them. This us in line with the obligations in Section 18(4) of the SAHRC Act requiring organs of state to respond to the Commission’s findings and indicate steps they will take.

The Commission seeks authoritative clarity from the Constitutional Court regarding:

• The meaning of “take steps to secure appropriate redress” in section 184(2)(b) of the Constitution;
• The legal effect of its findings and recommendations after it has concluded a full investigation; and
• The proper constitutional interpretation of its powers within the framework of Chapter 9 institutions.

As an institution mandated to protect the most vulnerable and ensure access to justice in cases of human rights violations, the Commission believes that clarity on its powers is essential to strengthening constitutional democracy.

ENDS

ISSUED BY THE SOUTH AFRICAN HUMAN