The judgment stems from a complaint by occupiers on a farm in Mpumalanga, who approached the SAHRC, on the basis that their right to access water in terms of section 27(1)(b) of the Constitution 1996 and section 6(2)(e) of the Extension of Security of Tenure Act 62 of 1997, had been violated by the respondents, who failed to supply borehole water to the occupiers. After issuing directives to the respondents and non-adherence to those directives, the SAHRC approached the Mpumalanga Division of the High Court, Mbombela (the High Court) for intervention.

The High Court held that the SAHRC had failed to make out a case for a general declaratory order on the directives issued in terms of section 184(2)(b) of the Constitution, which empowers the SAHRC to “to take steps to secure appropriate redress where human rights have been violated”. It further held that the SAHRC’s powers were distinguishable from those of the Public Protector, another watchdog. The powers of the Public Protector are envisaged in section 182 of the Constitution.

Dissatisfied with the High Court’s finding, the SAHRC approached the SCA.

The SAHRC was established with the express purpose of strengthening constitutional democracy. The functions of the SAHRC are envisaged in section 184 of the Constitution. Further powers and functions are provided for in section 13 of in the South African Human Rights Commission Act 40 of 2013 (SAHRC Act). The SAHRC is at liberty to make recommendations in respect of investigations or complaints of human rights violations to secure appropriate redress. However, it is not granted the power to make directives.

SCA’s finding

The SCA undertook a statutory interpretation exercise to determine what the extent of the SAHRC’s powers are under section 184 of the Constitution, read together with section 13 of the SAHRC Act. It held that the language used in these sections does not indicate that the drafters of the legislation intended that the SAHRC could issue binding directives. It further held that the powers granted to the SAHRC in terms of section 13 of the SAHRC Act should be interpreted in a conjunctive rather than a disjunctive manner. The SCA then held that it could not find a valid basis to hold that the SAHRC is empowered to issue binding directives.

This judgment creates some concern in respect of the implementation of the SAHRC’s powers going forward and may render the SAHRC a toothless watchdog with a loud bark but no bite. Even though the SAHRC’s use of its constitutional and statutory powers goes a long way in promoting, monitoring and protecting human rights in South Africa, and great strides have been made in this regard, there remains some discomfort in the fact that directives issued by the SAHRC are not binding in nature. The SAHRC indicated that it would appeal the judgment and approach the Constitutional Court for clarification.