Solidarity v Minister of Labour and Others

The South African Human Rights Commission (SAHRC) published a report in July 2018 titled 'Achieving substantive economic equality through rights-based radical socio-economic transformation in South Africa'. The report assessed, among other matters, the Employment Equity Act 55 of 1998 (EEA) and concluded that the statutory definition of 'designated groups' was inconsistent with constitutional and international law obligations, particularly the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD). Solidarity initially sought a declaration that section 42 of the EEA, read with the definition of 'designated groups', was unconstitutional. At the hearing, Solidarity abandoned that primary relief and instead sought a confirmatory order that the findings and recommendations in the SAHRC’s Equality Report were legally binding and had legal effect until set aside by a reviewing court.

The application for a confirmatory order giving binding legal effect to the findings and recommendations of the SAHRC’s Equality Report was dismissed.

The judgment clarifies the constitutional status and legal effect of reports issued by the SAHRC in the exercise of its monitoring and research mandate. It draws an important distinction between advisory recommendations and binding remedial action by Chapter Nine institutions, limiting the application of the Oudekraal principle and reinforcing Parliament’s exclusive authority to amend legislation.