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Should Human Rights Commission directives be binding?

- Lee-Anne Bruce

CALS has applied to intervene in an appeal before the Supreme Court of Appeal that has important implications for Chapter Nine Institutions

On Tuesday, 12 March 2024, the Supreme Court of Appeal will hear an appeal brought by the South African Human Rights Commission. The main question the Court is being asked to consider is whether the directives issued by the Human Rights Commission are legally binding. The Centre for Applied Legal Studies (CALS) seeks to intervene in the matter as a friend of the court to present international law on the nature of recommendations by national human rights bodies.

Next week, the Supreme Court of Appeal will hear a matter which has important implications for the effectiveness of Chapter Nine institutions. The appeal was brought by the South African Human Rights Commission against Agro Data and Mr F. G. Boshoff. The Commission investigated a complaint that Agro Data and Mr Boshoff had cut off community access to a borehole on their land, thus limiting their right of access to sufficient water. The Commission directed the respondents to restore the supply of water and engage with the people living on the land.

When the respondents failed to comply with the directives, the Commission approached the High Court. They asked the Court to declare not only that these particular directives should be enforced, but that all directives issued by the Commission are binding. The Court found that a case had not been made to order that all directives by the Human Rights Commission are binding. It further ordered that the directive to restore the water supply had no legal effect. The Commission has taken the matter on appeal to the Supreme Court of Appeal.

The Centre for Applied Legal Studies (CALS) has applied to intervene in the matter as a friend of the court. CALS seeks to assist the court in determining this important question by presenting regional and international law that guide states in establishing national human rights institutions. We show that these instruments emphasise the importance of making recommendations by these institutions binding in particular circumstances. We also submit that the South African Human Rights Commission is an avenue for vulnerable and marginalised communities to access remedies when their rights are violated. It is therefore important that the recommendations of the Commission have binding legal effect in appropriate circumstances.

“The South African Human Rights Commission plays an essential role as a human rights oversight body,” says Busisiwe Kamolane-Kgadima from CALS. “It provides a necessary platform for communities to enforce their rights outside of a court. In order for the Commission to fulfill its constitutional mandate, it’s important for its directives to be binding under certain circumstances.”

CALS is represented in the matter by in-house counsel Jatheen Bhima.

Read our founding papers in the matter here and and our written submissions here.

The matter will be heard by the Supreme Court of Appeal in person in Bloemfontein on 12 March 2024 from 10:00.

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