Communities face a water crisis
- Thuto Gabaphethe and Mazi Choshane
As the South African Human Rights Commission celebrates its 30th anniversary, its powers and the right to water are on the line in a Constitutional Court case
Last month, the South African Human Rights Commission (SAHRC) celebrated its thirty-year anniversary. Though the Commission is the body tasked with enforcing human rights in South Africa, it is seen by many communities around the country as lacking the ‘teeth’ to make their rights a reality.
The Constitutional Court is set to hear oral arguments in an appeal later this month about the powers of the Commission. The matter relates to a decision from the Supreme Court of Appeal which found that the Commission’s directives are not binding. Organisations such as the Centre for Applied Legal Studies (CALS) have applied to intervene as friends of the court to assist the court in determining this important matter.
SAHRC’s mandate is sourced directly from the Constitution as one of the “Chapter 9” institutions – along with bodies like the Auditor General, the Public Protector and the Electoral Commission – that are meant to support our constitutional democracy. SAHRC is required by the Constitution to promote respect for human rights, promote the attainment of human rights and monitor the observance of human rights.
However, the Commission’s 2024/25 state of human rights report – although indicative of a number of areas of intervention – paints “a picture of human rights in South Africa that is largely not improving based on statistical and other evidence”. The report indicates that the right to water (along with other section 27 rights such as health, food and social security) was the most violated right in terms of the complaints the Commission received.
This is the case for many of CALS’ clients in the Eastern Cape and Limpopo. For residents in the Flag Boshielo West area, for example, the stark reality is a lack of access to adequate water and a Municipality failing in its constitutional obligations despite several court orders. In fact, it has been over a decade since the first of five judgments was handed down in their favour on 21 July 2015.
What then is to be made about our constitutional democracy when such a basic necessity still tops the list of the most violated human rights – despite Chapter 9 of the Constitution providing additional “support” mechanisms to the state? Well, even on its own admission, SAHRC does not have a duty to provide services or to realise human rights. It does not have the resources to extend beyond its mandate of mere promotion, protection and monitoring of human rights by issuing (non-binding) directives.
In August 2024, the Supreme Court of Appeal made it clear that SAHRC’s powers are distinguishable from those of the Public Protector and it can therefore not issue binding directives. It is this finding that the Constitutional Court will have to provide a final decision on after it hears oral submissions on 25 November 2025.
In fact, the matter concerns complaints about access to water for farmers. The SAHRC investigated a complaint that Agro Data CC and Mr F G Boshoff had violated the rights of people occupying their farm by restricting their access to a borehole. The Commission issued directives for them to restore water access within seven days and engage the occupiers on the management of water on the farm. When the respondents failed to comply, the SAHRC took the matter to the Mpumalanga High Court, then appealed to the SCA.
According to CALS and other submissions that will be heard later this month, the answer to whether SAHRC’s directives should be binding lies with the interpretation of Section 184 (2)(b) of the Constitution, which provides that the SAHRC has the power to “take steps to secure appropriate redress where human rights have been violated”.
While the Constitutional Court grapples with this and as we celebrate 30 years of this important institution of our constitutional democracy, CALS’ Flag Boshielo West clients will lay their own complaint to the SAHRC with the hope for appropriate redress as well as the effective protection and promotion of their human rights. They have lived through a decade’s worth of violations of their human rights through failures by the Sekhukhune District Municipality to not only comply with constitutional obligations to provide water but for also disregarding court judgments and recommendations from Parliament to do so.
In one of the five judgments against the Sekhukhune District Municipality on 29 November 2019, they were found to have been in contempt of the previous orders of the court by failing to provide adequate potable water supply as was previously directed. Three years later, on 29 November 2022, the National Council of Provinces adopted a report and directed the Municipality to provide regular reports on its progress toward supplying the communities with water.
The SAHRC complaints mechanism seems to be an appropriate approach for relief of the human rights violations these communities have endured. This is especially true for a country 30 years into democracy, with a Constitution that seeks to promote human dignity, the achievement of equality as well as the specific advancement of the right to water. Whether the Constitutional Court will find that the SAHRC in fact has the powers to issue binding directives to unrelenting perpetrators of human rights violations such as the Sekhukhune District Municipality remains to be seen.
Thuto Gabaphethe and Mazi Choshane are based at the Centre for Applied Legal Studies, Wits University.