The Constitutional Court (ConCourt) has unanimously ruled that the SA Human Rights Commission (SAHRC) must approach a competent court to enforce its findings, settling a long-running legal question about the extent of the commission’s powers.
The judgment makes clear that SAHRC directives are recommendations, not binding orders, and that litigation is the proper mechanism when respondents refuse to comply.
“The SAHRC’s role is facilitative, not coercive: it may investigate, report and assist in securing redress, but cannot itself impose legally enforceable obligations,” it said.
According to the ConCourt, when respondents refuse to comply with SAHRC directives, the commission has no choice but to litigate.
“Where its recommendations are ignored, the SAHRC (or affected parties) must approach a court for relief on the merits.”
Justice Steven Majiedt, who delivered the unanimous judgment, spelt out the commission’s position.
“After the SAHRC concludes investigations into complaints, it may issue recommendations for redress. Should respondents decline, the SAHRC would be required to litigate the matter on the underlying facts,” he said.
The case that brought the question to a head
The ruling stems from a 2018 dispute in Mpumalanga, where farm owner Gerhardus Boschoff restricted the Mosotho family’s access to borehole water on his property.
After investigating, the SAHRC issued formal directives ordering that water access be restored and that Boschoff engage meaningfully with the family. He refused to comply.
The commission then sought a high court order declaring its directives legally binding.
The application was dismissed, setting the matter on a path through the courts that would ultimately reach the ConCourt.
Why the SAHRC cannot act like the Public Protector
The Supreme Court of Appeal, before the matter reached the ConCourt, found that while the SAHRC has authority to take steps to secure appropriate redress, it does not have the power to issue binding remedial orders.
That distinction is significant as such binding powers are associated with the Office of the Public Protector, not the SAHRC.
The ConCourt confirmed that position, drawing a line between the two institutions and their respective mandates.
Litigation is not a limitation, it is the mandate
The judgment reframes what might appear to be a weakness in the SAHRC’s powers as the intended design.
Rather than being able to compel compliance unilaterally, the commission is constitutionally required to pursue enforcement through the courts.
Majiedt made clear that going to court is not a last resort, it is the commission’s proper constitutional role when faced with non-compliance.
This is a developing story.
