SA Human Rights Commission is a vital institution, but does not have binding powers, rules Constitutional Court

The South African Human Rights Commission (SAHRC) remains “a potent and indispensable guardian of human rights” within South Africa’s constitutional scheme, but it does not have the power to issue binding directives, ruled the Constitutional Court yesterday while unanimously dismissing an appeal in the key case of South African Human Rights Commission v Agro Data CC and Another [2026] ZACC 16.

“The SAHRC can do no more than that which the Constitution and the law permit,” said Acting Justice Caroline Nicholls, writing for a unanimous court. “And the law, including the founding value of the rule of law, does not automatically convert recommendations of the SAHRC into binding directives.”

The case arose from a complaint lodged with the SAHRC in 2018 by occupiers of Doornhoek farm in Mpumalanga. The occupiers alleged that Agro Data CC and Mr Francois Gerhardus Boshoff had restricted their access to borehole water. The SAHRC conducted an investigation and found that the occupiers’ rights to access to water and dignity had been violated. It issued directives requiring access to water be restored, that the parties engage with each other, and for the respondents to disclose relevant information to the occupiers to allow for meaningful engagement between the parties. 

The respondents failed to comply, prompting the SAHRC to approach the High Court to seek an order that its directives were binding. The High Court interpreted section 184(2)(b) of the Constitution and section 13 of the South African Human Rights Commission Act 40 of 2013 (SAHRC Act), and found the provisions granted the SAHRC co-operative powers rather than coercive powers.

The Supreme Court of Appeal dismissed an appeal, finding the SAHRC had no power to issue binding directives, and that the SAHRC’s role is to assist complainants to seek redress through appropriate fora. In a hearing before the Constitutional Court late last year. The SAHRC argued that the Constitution and SAHRC Act could be broadly interpreted to mean that its directives were binding. They were supported by the Centre for Applied Legal Studies, who argued for a broad interpretation aligned with international law and promoted effective access to remedies.

Another amicus curiae, ProBono.org submitted that the SAHRC’s decisions have legal effect, while accepting that enforcement requires court proceedings. Conversely, AfriForum, a lobby group focused on the interests of Afrikaners, opposed both positions, submitting the SAHRC has no binding powers at all.

While the Constitutional Court dismissed the appeal, it stressed that despite the absence of binding remedial powers, the work of the SAHRC was constitutionally important, and the Chapter 9 institution was “far from toothless”.

Its influence, said the Court, lies in the deployment of constitutional and legislative powers including extensive investigative authority, support of litigation, shaping of the conduct of state officials, informing of public debate, and exertion of normative pressure on organs of state and private actors alike. “Properly understood, the SAHRC’s strength lies precisely in its capacity to act in ways that courts cannot.”

While some observers have celebrated the Constitutional Court’s decision, others have decried the requirement for successful complainants to relitigate SAHRC recommendations through the courts, if respondents simply refuse to comply.

As reported by MambaOnline.com, Sibonelo Ncanana-Trower, National Task Team Civil Society Co-chair and Human Rights Coordinator at OUT LGBT Well-being, expressed concern about the ruling, warning it could frustrate access to justice, particularly given the slow pace of the South African court system. 

“If the SAHRC is now required to approach the courts to enforce its own directives, while openly stating that it does not have the resources to do so, then in practice this weakens enforcement rather than strengthening accountability,” said Ncanana-Trower.

Responding this morning to the Constitutional Court’s ruling, the SAHRC noted that while the Court held the SAHRC’s powers are primarily investigative and facilitative, requiring it to take steps to secure appropriate redress rather than being able to provide binding remedies itself, that “its findings and recommendations continue to carry significant weight and should be respected, given serious consideration, and implemented unless there are valid reasons not to do so”.

The SAHRC finalises thousands of enquiries and complaints annually, many of which relate to socio-economic rights such as access to water, housing, healthcare, and education, among others. The SAHRC noted that for many individuals, it remains a critical point of entry into the justice system.

“As South Africa observes thirty years of the adoption of the Constitution, the SAHRC remains steadfast in its constitutional mandate to promote, protect, and monitor human rights, and to ensure that rights are realised in practice for all who live in South Africa.”