Solidarity v The Minister of Labour and Others

The South African Human Rights Commission (SAHRC) issued a report on 12 July 2018 entitled 'Achieving substantive economic equality through rights-based radical socio-economic transformation in South Africa' (the Equality Report). The report evaluated government's socio-economic transformation programme from a rights-based perspective, focusing partly on workplace transformation and the implementation of the Employment Equity Act (EEA). The report concluded that the definition of 'designated groups' in the EEA was not in compliance with constitutional or international law obligations, and recommended that the EEA be amended to target more nuanced groups based on need and social and economic indicators. Solidarity initially sought to have section 42 of the EEA, read with the definition of 'designated groups' in section 1, declared unconstitutional. However, when the matter was called, Solidarity advised that it would not pursue the main prayer for a declaration of unconstitutionality, and would only pursue the alternative relief seeking a confirmatory order of the SAHRC's findings and recommendations in the Equality Report.

• What is the legal status of the SAHRC's Equality Report and its findings and recommendations?
• Does the SAHRC have the power to make binding findings that require action from government or other parties?
• Can the court confirm the findings and recommendations of the SAHRC's Equality Report to give them legal effect?
• What is the distinction between the SAHRC's monitoring and assessment function versus its protection function?
• Does the Oudekraal principle apply to give the Equality Report binding effect until set aside by a court?

The application was dismissed. No order as to costs was made.

Research reports issued by the SAHRC in the exercise of its monitoring and assessment function under section 184(1)(c) of the Constitution, utilizing its power to carry out research under section 184(2)(c), are advisory in nature and do not have binding legal effect on government or other parties. Chapter Nine institutions, including the SAHRC, have no power to direct Parliament or the executive to effect legislative amendments; they may only advise and recommend. Only superior courts are empowered to pronounce on the validity of Acts of Parliament and make declarations of constitutional invalidity. The Oudekraal principle, which provides that invalid administrative action may not be ignored until set aside by a court, does not apply to advisory research reports issued by the SAHRC in the exercise of its monitoring and assessment functions. Courts have no basis to confirm or enforce findings and recommendations in SAHRC research reports that are intended to be educative and advisory only.

The court noted that the SAHRC's power to secure appropriate redress where human rights have been violated (section 184(2)(b)) requires the conduct of an investigation, which is distinct from the research function under section 184(2)(c). The court observed that the language of the Equality Report itself was cast in terms that did not suggest the findings and recommendations were binding. Van Niekerk J acknowledged that the convention in constitutional challenges brought without frivolous or vexatious intent is that costs ought not ordinarily to be granted, and applied this principle under section 162 of the LRA in the interests of law and fairness. The court referenced that the Equality Report itself recommended that affirmative action should continue to be implemented on the basis of race, gender and disability given the persistence of economic inequality, but suggested that special measures should be targeted at vulnerable groups within these classifications to recognize multiple forms of disadvantage.

This case clarifies the legal status and binding force of reports issued by the SAHRC in the exercise of its monitoring and assessment functions versus its protection functions. It establishes that research reports issued by the SAHRC under its constitutional monitoring mandate are advisory in nature and do not have binding legal effect that can be enforced through court confirmation. The judgment distinguishes the powers and functions of the SAHRC from those of the Public Protector, confirming that Chapter Nine institutions have no power to direct Parliament or the executive to effect legislative amendments—they may only advise and recommend. The case also affirms that only superior courts have the power to pronounce on the validity of Acts of Parliament and make declarations of constitutional invalidity. The judgment reinforces the separation of powers and the limits on Chapter Nine institutions' authority while recognizing their important educative and advisory roles in promoting constitutional democracy and human rights.