The South African Human Rights Commission (SAHRC) filed papers at the Constitutional Court to appeal the recent judgment of the Supreme Court of Appeal, which confirmed that the Commission does not have the authority to issue binding directives.
In August, the SCA upheld the 2022 decision of the Mpumalanga High Court, stating that the Commission does not have the authority to issue binding directives. Instead, it must enforce all its directives through a court of law.
The SAHRC said upon careful consideration of the judgment and its implications, it firmly believes that the Constitutional Court, as the apex court, is best placed to interpret Section 184 of the Constitution. This section mandates the Commission to protect human rights and secure redress in cases of human rights violations.
Chris Nissen, the chairperson of the Commission, emphasised the significance of this case, stating: “This case is critical as it will provide legal clarity, enabling the Commission to protect human rights and restore dignity to the thousands of people who seek our help.”
AfriForum, meanwhile, this week filed an affidavit with the Constitutional Court to bring what it deems pertinent information to this court’s attention.
AfriForum requests in the affidavit to be informed of the court’s decision to grant leave to appeal to the SAHRC or not. The organisation intends to take the necessary steps in order to be admitted as a friend of the court should leave to appeal be granted.
AfriForum acted as a friend of the court in the case that was heard by the SCA. It says the issue of the binding nature of SAHRC directives will have a far-reaching impact. It is of crucial importance that the court does not consider only the SAHRC’s views, AfriForum said.
According to Louis Boshoff, Campaign Officer at AfriForum, the standing judgment is clear about what the constitutional powers of the SAHRC are, and it is actually pointless to appeal against it.
“AfriForum is well aware of the implications of this case and will therefore defend the constitutional order to the end,” he said.
In May 2018, the SAHRC received a complaint from occupiers on the farm De Doorn Hoek in Mpumalanga, after the owners of the land, AgroData, allegedly placed restrictions on the occupiers’ access to borehole water in 2016.
The SAHRC investigated the matter and made findings that were ultimately not implemented by the landowner. In an attempt to have the directives enforced, the Commission turned to the Mpumalanga High Court in Mbombela.
However, this court dismissed the SAHRC’s application in March 2022 and ruled that, although the SAHRC can make recommendations, they could not prove that all directives issued by the SAHRC are binding.
In response, the SAHRC approached the SCA to appeal this decision. However, the court of appeal upheld the judgment of the Mpumalanga High Court.
The SCA held that the SAHRC was an independent Chapter 9 institution, subject only to the Constitution and the law. It said that the Commission’s directives were not self-executing.
The court further held that while the SAHRC had the power to investigate and report on human rights violations, it must approach a court to secure appropriate redress where rights are violated.
The Commission argued that its directives had to be legally binding under certain circumstances so that it could secure appropriate redress in cases of human rights violations. The Constitutional Court must meanwhile first indicate whether it will entertain the leave to appeal application or not.
Pretoria News