The principal issue before the Supreme Court of Appeal (the "SCA") in the case of South African Human Rights Commission v Agro Data CC & Another was whether the South African Human Rights Commission (the "SAHRC") is empowered, under section 184(2)(b) of the Constitution of the Republic of South Africa, 1996, read with section 13(3) of the South African Human Rights Commission Act, 2013 (the "SAHRC Act") , to issue binding directives to those it finds have violated human rights.
This issue arose against the following factual background:
On or about 29 May 2018, the SAHRC received a complaint from occupiers of a certain farm asserting that Mr Boshoff (the second respondent), the farm owner, had unilaterally imposed restrictions on their access to the borehole water on the farm, which was their only source of water.
Pursuant to conducting an investigation, the SAHRC issued a directive which inter alia found that Mr Boshoff and the Agro Data CC ("the respondents") violated the occupiers' rights to have access to water and their right to dignity. The respondents were ordered to restore the supply of the borehole water to the occupiers.
The respondents failed to comply with the SAHRC's directives. Consequently, the SAHRC approached the High Court seeking, among others, a declaration that the respondents' failure to comply with its directive is unlawful and constitutionally invalid, and ordering the respondents to restore the supply of the borehole water.
The High Court dismissed the declaratory relief. However, it ordered the respondents to make all relevant information available to the occupiers for the purposes of meaningful engagement in relation to the issue of water management (which was part of the relief sought by the SAHRC). The High Court reasoned that: (a) the SAHRC's powers are distinguishable from those of the Public Prosecutor; (b) the SAHRC ought to have assisted the occupiers by approaching the courts for relief; and (c) directives issued by the SAHRC, in terms of section 184(2) of the Constitution, cannot be ignored without any consequences. It is this judgment that was the subject of the appeal.
Proceedings before the SCA
The respondents did not participate in these proceedings. The following submissions were made on behalf of the SAHRC, The Centre for Applied Legal Studies("CALS"),The Commission for Gender Equality, and Afriforum:
The SAHRC
- The directives issued by the SAHRC would be meaningless if they are not binding. Furthermore, the SAHRC's limited resources would make it impossible to approach the court each time it receives a complaint.
- Section 184(2)(b) of the Constitution, which provides that the SAHRC 'has the powers, as regulated by national legislation, necessary to perform its functions, includingthe power to take steps to secure appropriate redress where human rights have been violated', empowers the SAHRC to make binding directives.
- Section 181 of the constitution provides that the SAHRC is independent, subject only to the Constitution and the law. The High Court thus misdirected itself by finding that the functions of the SAHRC should be overseen by the courts, as this does not appear from the Constitution.
CALS
- Section 184(2)(b) should be interpreted to accord with international law, in this case Article 2 of the Principles relating to the Status of National Institutions (the "Paris Principles"). Article 2 provides that National Human Rights Institutions shall be given as broad a mandate as possible.
- CALS further sought to draw parallels with the Economic Freedom Fighters v Speaker of the National Assembly and Others; Democratic Alliance v Speaker of the National Assembly and Others judgment, to substantiate its argument that the powers of the SAHRC are binding and therefore reviewable, as envisaged in terms of section 33 of the Constitution.
The Commission for Gender Equality
- The High Court erred in its finding that there was a hierarchy among the Chapter 9 institutions.
Afriforum
- Neither the Constitution nor the SAHRC Act accorded the SAHRC the power to issue binding remedial directives.
- Furthermore, the SAHRC does not require the power to issue binding remedial directives in order to effectively discharge its constitutional mandate. This position is consistent with most human rights institutions internationally, which operate as watchdogs.
The SCA's findings
The SCA found that the SAHRC does not have the powers to issue binding directives. In reaching that conclusion, the SCA reasoned:
The provisions of section 184(2)(a) empower the SAHRC to investigate and report on the observance of human rights. This means that it is bestowed, not only with the role of a watchdog, but also has the power to conduct research and education about human rights.
The above provision uses clear and direct language. The use of the words 'to take steps to secure' give an unambiguous direction to the SAHRC to secure assistance for the aggrieved persons. To obtain a legal remedy means that one must seek recourse through appropriate judicial channels.
In terms of section 181(1)(c) of the Constitution, the Public Prosecutor is empowered to directly take appropriate remedial action. Conversely, the wording of section 184 (2)(b) only directs the SAHRC to take measures to secure redress. Therefore, the wording of section 184(2)(b) does not say that the SAHRC must provide appropriate redress, rather it states that it has to 'take steps to secure' appropriate redress. The conclusion must be that the drafters of the Constitution intended that the SAHRC would investigate and, if it is of the opinion that there is substance in any complaint made to it, take steps to secure redress.
The word 'assist' as used in the section, can be interpreted to mean that the SAHRC acts in a supportive or enabling role in assisting the adversely affected persons to seek redress. It does not itself provide a remedy. Once it has established that there is substance to a complaint, the SAHRC may assist the complainant to seek redress or bring the proceedings to a court in its own right.
Section 13(3)(a) of the SAHRC Act provides the SAHRC with the powers to (a) to investigate claims of human rights abuses on its own initiative or upon receipt of a complaint; (b) in the event that it finds substance in any complaint it may proceed to assist the complainant and other persons adversely affected thereby, to secure redress; and (c) where it is necessary for that purpose to do so, it may arrange for or provide financial assistance to enable proceedings to be taken to a competent court for the necessary relief or may direct a complainant to an appropriate forum. It will then be upon the court of law or tribunal to make a binding finding on the evidence presented by the SAHRC or the affected person to it.
The provisions of section 13(3) should be read harmoniously with all the provisions of the SAHRC Act and the Constitution, including section 14 of the SAHRC Act. Section 14 of the SAHRC Act which provides that the SAHRC may, by mediation, conciliation or negotiation, endeavour to resolve any dispute or to rectify any act or omission, emanating from or constituting a violation of or threat to any human right, strongly suggests that the SAHRC has persuasive rather than coercive powers.
The lack of financial resources does not constitute a justifiable reason to clothe the SAHRC with binding remedial powers. Rather, the SAHRC can approach law enforcement organs, such as the South African Police Services, the Equality Court, and other organs of state for assistance. If the state organs fail to render assistance, the SAHRC can approach the courts of law for assistance.
The judgment of Afriforum v South African Human Rights Commission and Others correctly held that the SAHRC does not have the power to make binding decisions on the basis of the provisions of section 13(3) of the SAHRC Act. It further held that: (a) section 13(3) only empowers the SAHRC, pursuant to an investigation, to form an 'opinion that there is substance in any complaint' and not to make any definitive finding in that regard; and (b) if the SAHRC needs to enforce its directives, it has to approach a court of law, competent tribunal, or proceed with mediation or negotiations.
It is worth highlighting that the SCA appreciated the intrinsic role of the SAHRC, which serves as a means to access justice, as well as to promote and protect human rights. The court further held that the SAHRC can be regarded as "an invaluable constitutional gift to our nation". However, the SCA concluded that the SAHRC's role is to facilitate in aiding the aggrieved parties rather than be an enforcer of the decision.
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