South African Human Rights Commission v Agro Data CC and Another (Afriforum, Centre for Applied Legal Studies and Commission for Gender Equality intervening as Amici Curiae)

The South African Human Rights Commission (SAHRC) received a complaint in May 2018 from Mr William Trinity Mosotho on behalf of his elderly father and other occupiers of a farm. The complaint alleged that in 2016, Mr Boshoff (second respondent) unilaterally restricted the occupiers' access to borehole water on the farm by rationing the water supply and demanding payment for it, contrary to the practice of the former owner who granted access free of charge. The SAHRC investigated and found violations of the occupiers' right to access water (s 27(1)(b) of the Constitution) and dignity (s 10 of the Constitution), as well as s 6(2)(e) of the Extension of Security of Tenure Act 62 of 1997 (ESTA). On 20 September 2019, the SAHRC issued directives requiring the respondents to restore water supply, commence engagement on water management, and provide relevant information. The respondents did not comply with the directives. The SAHRC then approached the High Court for an order declaring that its directives are binding and requiring compliance. The High Court dismissed the application for declaratory relief but ordered the respondents to make information available and ordered the SAHRC to facilitate engagement. The SAHRC appealed to the Supreme Court of Appeal.

• Whether the SAHRC has the power to issue binding directives in terms of s 184(2)(b) of the Constitution read with s 13(3) of the South African Human Rights Commission Act 40 of 2013
• Whether the powers of the SAHRC are distinguishable from those of the Public Protector
• The interpretation of the phrase 'to take steps to secure appropriate redress' in s 184(2)(b) of the Constitution
• Whether respondents who disagree with SAHRC directives must approach a court for review or may simply ignore the directives

The appeal was dismissed with no order as to costs. The High Court's order was confirmed, meaning that the SAHRC does not have the power to issue binding directives under s 184(2)(b) of the Constitution and s 13(3) of the SAHRC Act.

The SAHRC does not have the constitutional or statutory power to issue binding directives. Section 184(2)(b) of the Constitution empowers the SAHRC 'to take steps to secure appropriate redress' where human rights have been violated, not to take remedial action directly. This language differs materially from s 182(1)(c) which empowers the Public Protector 'to take appropriate remedial action'. The deliberate use of different language indicates the drafters intended different functions. Section 13(3) of the SAHRC Act, which gives effect to s 184(2)(b), requires the SAHRC to form an opinion on the substance of complaints and then 'assist' complainants to secure redress through mediation, conciliation, negotiation, or by bringing proceedings to a competent court. The word 'assist' indicates a supportive or enabling role, not an adjudicative power to make binding determinations. The SAHRC's investigatory powers under s 15 do not clothe it with quasi-judicial or adjudicative powers; they merely facilitate evidence gathering. If the SAHRC needs to enforce its findings, it must approach a court of law, competent tribunal, or proceed with mediation or negotiation. While the SAHRC's recommendations should be respected and seriously considered, they are not automatically binding on those against whom they are made.

The Court made several non-binding observations: (1) The right to access water is a fundamental human right under s 27(1)(b) of the Constitution, and deprivation of clean water is appalling, dehumanizing, and impacts on rights to dignity and life. (2) The high court erred in finding a hierarchy among Chapter 9 institutions based on their order of listing in s 181 of the Constitution - all Chapter 9 institutions support democracy regardless of appointment or removal procedures. (3) The lack of financial resources does not justify clothing the SAHRC with binding remedial powers; it can seek assistance from other organs of state under s 181(3) of the Constitution. (4) Section 18(4) of the SAHRC Act does not give parties the option to simply elect whether to implement the SAHRC's findings; if dissatisfied, they should communicate concerns to the SAHRC, which can then take further steps. (5) The SAHRC serves as an invaluable constitutional gift to the nation and should not be rendered a 'toothless dog' - its recommendations should be given serious consideration and implementation. (6) International law instruments like the Paris Principles constitute soft law with persuasive interpretative value but do not explicitly require national human rights institutions to have binding powers. (7) The SAHRC could have assisted the occupiers by approaching a court for relief including a spoliation order, declaration of rights, or interlocutory relief.

This case is significant in South African constitutional law as it definitively clarifies the powers of the South African Human Rights Commission as a Chapter 9 institution. The judgment establishes that while the SAHRC plays a vital role in strengthening constitutional democracy and protecting human rights, its powers differ from those of the Public Protector. The SAHRC cannot issue binding directives but must secure redress for human rights violations by assisting complainants through other means such as litigation, mediation, or negotiation. The judgment emphasizes that different Chapter 9 institutions have distinct mandates and powers tailored to their specific functions, and that they should all be respected regardless of their listing order in the Constitution. The decision clarifies the limits of the SAHRC's powers while affirming that its recommendations should be taken seriously and that it can access other mechanisms to fulfill its constitutional mandate. The case is also important for its emphasis on the fundamental right to access water under s 27(1)(b) of the Constitution and its connection to human dignity.