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Should Human Rights Commission findings be legally binding?

- Lee-Anne Gaertner

CALS will appear in the Constitutional Court next week for a hearing on the powers of the South African Human Rights Commission

On Tuesday, 25 November 2025, the Constitutional Court is set to hear an appeal brought by the South African Human Rights Commission. The question before the Court is whether the directives issued by the Commission are legally binding. The Centre for Applied Legal Studies (CALS) has been permitted to join the case as a friend of the court.

Next week, the Constitutional Court is set to hear a matter which has important implications for the effectiveness of the South African Human Rights Commission and the right to access sufficient water guaranteed under section 27 of the Constitution. The appeal was brought by the Commission following a decision of the Supreme Court of Appeal in August 2024 that the Commission does not have the power to issue binding directives.

The case arises from a complaint lodged with the Commission in May 2018 by a community living on a farm, who reported that their access to water was restricted by the owners of the farm. After investigating the complaint, in September 2019 the Commission found that the respondents – Agro Data and Mr Boshoff – had violated the community’s right to dignity and right to water. The Commission directed the respondents to restore the water supply and engage with the community in order to ensure equitable sharing of this scarce resource.

When the respondents failed to comply with these 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 in terms of section 184 (2)(b) of the Constitution  made by the Commission are legally binding. The High Court ruled that the directive to restore the water supply had no legal effect, and the Commission took the matter on appeal to the Supreme Court of Appeal. The respondents did not make any appearance in the Supreme Court of Appeal, however Afriforum was admitted as a ‘friend of the court’ and argued that the Commission does not have the power to issue binding directives.

The judgment of the Supreme Court of Appeal acknowledged the importance of the right to water and the role of Chapter 9 institutions such as the Commission in our constitutional democracy. Though the Court agreed that the Commission’s recommendations should be respected and implemented, it stopped short of ruling that these findings are legally binding. The Commission has taken the matter on appeal to the Constitutional Court.

The Centre for Applied Legal Studies (CALS) has been permitted to join the matter as a friend of the court. We make two main arguments. Firstly, we argue that the Constitution should be interpreted as broadly as possible to be in line with international law that guides how national human rights bodies like the Commission function. Secondly, we argue that the Commission has an important role to play in realising the right to access remedies when rights are violated.

“Chapter 9 institutions have a critical role to play in strengthening our constitutional democracy,” says Sithuthukile Mkhize from CALS. “The Constitution tasks the Human Rights Commission not only with investigating and reporting on human rights violations, but also taking steps to secure appropriate redress where rights have been violated. We argue that this should be interpreted as broadly as possible to support the international human right to access remedies.”

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

The matter is set to be heard in the Constitutional Court from 10:00 on 25 November 2025. The hearing will be live streamed on the Court’s YouTube channel.

Read our papers in the matter here.

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