By Lehlohonolo Lehana.
The South African Human Rights Commission (SAHRC) filed papers at the Constitutional Court on 5 September 2024 to seek clarify whether it has the power to issue binding directives.
The commission is of the view that section 184 of the constitution obliges it to protect human rights and secure redress in cases where they have been violated.
This follows the judgement of the Supreme Court of Appeals (SCA) which dismissed an appeal by the commission and upheld a 2022 decision of the Mbombela high court which found the commission did not have the authority to issue binding directives.
Commission chair Chris Nissen emphasised the significance of the SAHRC now approaching the Constitutional Court for a final ruling on the issue.
“Upon careful consideration of the judgment and its implications, the commission firmly believes the Constitutional Court, as the apex court, is best placed to interpret section 184 of the constitution,” Nissen said.
Instead, the SCA said the commission must enforce all its directives through a court of law.
The case stemmed from 2018 complaints from people living on a farm in Mpumalanga, who alleged that in 2016 Francois Boshoff unilaterally introduced restrictions on the occupiers’ use of borehole water on the farm, depriving them of access to this water source.
After investigating, the commission found Agro Data CC and Boshoff had violated the occupiers’ rights of access to water protected by the Extension of Security of Tenure Act and the constitution.
The commission subsequently issued directives to Agro Data CC and Boshoff in 2019, including a directive to “restore the supply of borehole water” within a week and begin “good faith’ engagements.
When Agro Data CC and Boshoff failed to comply with these directives, the commission launched an application in the Mbombela high court, which dismissed the SAHRC’s application for declaratory relief.