The SA Human Rights Commission (SAHRC) has asked the Constitutional Court to overturn a Supreme Court of Appeal (SCA) order that ruled the institution’s decisions were not legally binding and were mere recommendations.
The pending ruling by the court will be a landmark judgment on the scope of the commission’s legal powers.
Last year the SCA ruled that the commission could only provide recommendations in its findings and had to approach courts to legally enforce its suggestions in cases where it found human rights violations.
The order caused a stir for the commission, which has interpreted section 184 of the constitution for the past 30 years as empowering it “to take steps to secure appropriate redress where human rights have been violated”, along with SAHRC Act provisions to mean some of its decisions were legally binding.
Advocate Buhle Lekokotla, representing the commission, told the top court on Tuesday that the effect of the SCA’s order made the commission a “toothless” vanguard of human rights because it had no legal power to ensure redress in human rights violations without going to court.
The commission maintains it would have to spend huge amounts of money in litigation to give legal effect to its recommendations for implementation by those who violate human rights and refuse to ensure the recommendations of redress, she argued.
The commission was established in 1995 shortly after the fall of the apartheid government, which violated human rights through racially discriminatory systems.
The showdown regarding the legal authority of the commission concerns a case the commission litigated against a farm owner, Gerhardus Boshoff, and a company called Agro Data CC, which owns De Doorn Hock Farm in Mpumalanga.
Boshoff had bought the farm, which had occupiers including Tubatsi Mosotho, who had lived on the farm since 1965, and restricted occupiers of the farm from accessing borehole water and forced them to pay for water in 2016.
The commission, in its investigations, found Boshoff violated the occupiers’ right not to be denied or deprived of access to water. This was because the occupiers had an agreement with a previous owner to use the borehole.
The commission thereafter directed Boshoff to restore the supply of borehole water to the occupiers.
When Boshoff did not adhere to the directives, the commission went to court seeking a declaratory order that its directives in terms of the constitution were binding and a refusal to such was unlawful.
The Mpumalanga high court found the directive by the commission not legally binding. The SCA made the same finding.
The commission relied on a previous top court judgment where decisions by the public protector, also a Chapter 9 institution, were legally binding. This was pinned on the constitution’s provision that empowers the public protector “to take appropriate remedial action.”
The constitution empowers the commission to “secure appropriate redress where human rights have been violated”. Lekokotla argued redress had the same effect as “remedial action”.
No provision in the constitution expressly stipulates the commission’s decisions to be legally binding, Lekokotla conceded, but he argued that the interpretation of existing provisions empowered the commission to make legally binding decisions to protect the integrity of the institution.
She said without legal authority, it meant the commission’s reports could be ignored if not endorsed by a court.
“It would mean we should then go to court every day,” Lekokotla maintained.
The SCA order effectively stripped the institution of integrity as vanguards of human rights, she said.
Justice Leona Theron asked whether the argument that the commission’s decisions were legally binding did not make it a quasi-court, a body that has some judicial-like powers.
Lekokotla agreed. She was further asked whether it was not dangerous for a commission, which does not legally require its commissioners to have legal qualifications, to have such powers.
Lekokotla conceded and later argued, to alleviate the concerns, the investigations by the commission were conducted by qualified lawyers.
While the appeal by the commission was unopposed, Afriforum, as amicus curiae (a friend of the court), pushed back against the arguments of the commission.
Advocate Margaretha Engelbrecht, representing Afriforum, argued there was no provision in law stipulating the commission’s decisions were binding because legislatures never intended for such.
“This court has deliberately distinguished between binding remedial action and what it called mere recommendations. We say the commission can make recommendations but cannot give directives. The commission does not have the remedial power like the public protector,” she argued.
Two other organisations in the case were there as friends of the court that supported the commission’s arguments. ProBono.org is an organisation that provides legal assistance to indigent and vulnerable people, represented by Jason Brickhill, and Wits University’s Centre for Applied Legal Studies is represented by advocate Jatheen Bhima.
The court reserved judgment.
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