A lawyer has argued before the Constitutional Court that existing legislation already gives the SA Human Rights Commission’s (SAHRC) findings binding force and they should stand unless a court sets them aside.
Adv Jason Brickhill of ProBono.org was making submissions as a friend of the court as the SAHRC seeks authoritative clarity on whether its findings and recommendations carry legal weight.
“The complaints handling procedures provide that the commission’s findings are ‘final and binding’ on the parties and the commission. These powers come not only from the constitution but also from the SAHRC Act,” he said.
The matter stems from a complaint by Tubatsi Mosotho and other occupiers of the De Doorn Hock Farm in Mpumalanga, who accused farm owner Francois Gerhardus Boshoff of restricting their borehole water supply.
The SAHRC’s investigation found that Boshoff and Agro Data CC violated the occupiers’ right to access water, as protected by section 6(2)(e) of the Extension of Security of Tenure Act and section 27 of the constitution.
The commission ordered the farm to restore water within seven days and to engage with occupants on fair water management. However, that was never done.
After non-compliance, the SAHRC approached the courts for relief, but both the high court and the Supreme Court of Appeal ruled that the commission’s directives are not legally binding.
The powers of the SAHRC came under scrutiny in the Constitutional Court on Tuesday, where the commission is asking the court to confirm that its findings and recommendations are legally binding.
The Centre for Applied Legal Studies (Cals), also appearing as a friend of the court, argued that Section 184 of the constitution should be interpreted broadly.
Adv Jatheen Bhima said international human rights standards required the commission to be empowered to ensure remedies for victims.
“The commission has an important role in promoting the right of access to a remedy for victims of human rights violations. International law guides how human rights bodies should be empowered, and this should inform how section 184 is interpreted,” Bhima said.
The commission has an important role in promoting the right of access to a remedy for victims of human rights violations. International law guides how human rights bodies should be empowered, and this should inform how section 184 is interpreted
— Adv Jatheen Bhima
AfriForum, however, opposed this interpretation. Adv Margaretha Engelbrecht argued that the commission does not have the legal authority to issue binding directives.
“The commission can recommend, but it cannot give directives because it does not have direct power. Its mandate is to promote, protect, monitor, and develop human rights, not to enforce compliance,” Engelbrecht said.
The SAHRC is asking the court to determine whether its findings should be treated as binding, citing persistent non-compliance by organs of state, as cited in some of their reports, which are as follows:
• North West municipalities: The commission found widespread failures by 14 municipalities to fulfil constitutional duties, including the supply of clean water, sanitation services, electricity provision, waste collection, road maintenance, and sewage management. In a 2025 SAHRC report, the commission argued that non-compliance or lack of full implementation of recommendations is a problem across the nation.
• In October, the commission revealed that only 43% (12 of 28) of recommendations from the national inquiry on the July 2021 unrest were fully implemented.
A recent SCA judgment reconfirmed that its recommendations are not legally binding, complicating enforcement.
Judgment has been reserved.
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