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[2022] ZAMPMBHC 58
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South African Human Rights Commission v Agro Data CC and Another (1448/2021) [2022] ZAMPMBHC 58 (2 March 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
MPUMALANGA
DIVISION, MBOMBELA (MAIN SEAT)
CASE
NUMBER: 1448/2021
REPORTABLE:NO
OF
INTEREST TO OTHER JUDGES:NO
REVISED.
2
March 2022
In
the matter between:
THE
SOUTH AFRICAN HUMAN RIGHTS COMMISSION Applicant
and
AGRO
DATA CC
First Respondent
BOSHOFF,
FG Second
Respondent
JUDGMENT
GREYLING-COETZER
AJ
INTRODUCTION
[1]
During May
2018 the applicant (hereinafter referred to as “the SAHRC”)
received a complaint lodged by William Trinity
Mosotho on behalf of
his father, Mr Tubatsi Phepheng Piccinini Mosotho and other occupiers
of De Doorn Hoek Farm. The complaint
contained several allegations
against the first- and second respondents’,
inter
alia
that
they in 2016 unilaterally introduced restrictions to occupiers’
use of borehole water and threatened to impound the occupiers’
cattle.
[2]
The SAHRC
considered the complaint and concluded that the restriction of use of
the borehole water disclosed a
prima
facie
violation
of the occupiers’ human rights.
[3]
Acting in
terms of Sections 184(1) and 184(2)(a) – (b) of the
Constitution, read with Section 13(3) of the South African Human
Rights Commission Act 40 of 2013 (“the SAHRC Act”), the
SAHRC commenced investigating said complaint. This investigation
process resulted in an investigative report being compiled. In terms
of this report, it was found that the respondents violated
the
occupiers’ right not to be denied or deprived of access to
water, as contemplated in Section 6(2)(e) of the Extension
of
Security of Tenure Act 62 of 1997 (“ESTA”) and Section
27(1)(b) of the Constitution. It was further found that
the
respondents infringed on the occupiers’ inherent right to
dignity and the right to have their dignity respected and protected.
[4]
The SAHRC in its report made the
following directives:-
“
12.1.1
That the first and/or second respondents restore the supply of
borehole
water to the occupiers within seven days of this report.
12.1.2
That, within thirty days of this report, the parties commence
engagements in good faith on the management of water at the farm,
with the view to ensuring an equitable share of this scarce resource.
12.1.3
The second respondent to supply with all the relevant information
within fourteen days of this report, to enable them to engage
meaningfully in relation to the issue of water management of the
farm. Such information should include all the scientific reports at
the disposal of the second respondent relating to the levels
of the
underground water on the farm, as well as the costs incurred by the
second respondent in the supply of water to the occupiers.
12.1.4
That in the event that the parties are not able to reach an amicable
resolution on the issue of water management on the farm, each party
may approach a court of law for appropriate relief
.”
[5]
The
respondents’ inaction, by not heeding and implementing said
directives, motivated the current application.
[6]
It is important to briefly outline the
relief sought by the SAHRC. In the first place the SAHRC seeks two
declaratory orders namely
that:
6.1
a general declaratory order be granted to the
extent that the SAHRC’s directives issued in terms of Section
184(2)(b) of the
Constitution are binding; and
6.2
the respondents’ refusal and/or failure
to comply with the directives be declared unlawful and
constitutionally invalid.
[7]
The SAHRC further seek that:
7.1
the respondents be ordered to restore the
supply of the borehole water to the occupiers of Portion 3 of the
farm Doornhoek, 143
JT, Thaba Chweu at no cost to the occupiers
within 7 (seven) days of the judgment;
7.2
the respondents within 30 (thirty) days of the
judgment commence engagement with the occupiers in good faith on the
future management
of the water supply on the farm; and
7.3
the respondents within 14 (fourteen) days of
the judgment supply to the occupiers all relevant information to
enable them to engage
meaningfully in relation to the issue of water
management on the farm, which information shall include all the
scientific reports
at the disposal of the first and/or second
respondents relating to the levels of the underground water on the
farm, as well as
the costs incurred by the first and/or second
respondents in supply of water to the occupiers.
[8]
It was submitted by Counsel on behalf of
the SAHRC that the relief of a general declarator is sought to obtain
clarity for the future
to the extent that directives by the SAHRC
can’t be ignored. It was submitted that if a party against whom
a directive is
made does not agree with it or does not intend or is
not willing to comply with it, they needs to approach the court to
review
and set it aside.
THE
APPLICANT’S CASE
[9]
The
SAHRC contends that the directives made form part of its protective
mandate and its constitutional power to take steps to secure
appropriate redress in terms of Section 184(2)(b) of the Constitution
where human rights have been violated. In the heads of argument
it
was put differently in that the directives were issued “
in
terms of its powers to “secure redress” and or “necessary
relief” in terms of section 13(3) of”
the
SAHRC Act.
[10]
Further, that the directives are
appropriate and practical, and would provide the occupiers with
effective redress as it addresses
the immediate need to restore the
occupiers’ substantive right to access of potable water for
their survival; that it proposes
an engagement with the attempt to
restore a relationship of good faith between farm owner and occupier,
the exchange of information
to enable equal knowledge, thereby
empowering and restoring dignity of the occupiers. According to the
SAHRC the directives also
retain all parties’ rights to
approach a court for redress should their efforts fail, and it demand
no more from the respondents
than what they are capable of doing.
[11]
It is submitted that the respondents
have a constitutional and legal duty to comply with the directives,
and to cooperate with the
SAHRC’s efforts to seek redress for
the rights violation. The source of aforesaid duty was not expressly
dealt with. It was
further argued that the respondents by ignoring
the directives undermined the Rule of Law as this constitutes
interfering with
the SAHRC’s effectiveness and exercise of its
constitutional mandate.
[12]
It was further submitted that
appropriate redress presupposes a binding nature of said power, and
absent the power to take binding
“
appropriate
redress
”
,
the SAHRC would have no effective capacity to strengthen
constitutional democracy, as no party against whom a directive has
been
given would comply with an optional remedy.
[13]
The
SAHRC essentially placed exclusive reliance on the matter of
Economic
Freedom Fighters v Speaker of the National Assembly and Others;
Democratic Alliance v Speaker of the National Assembly
and Others
[1]
(“Nkandla judgment”).
[14]
In the Nkandla judgment the Apex Court
inter alia
held that:
14.1
sections
181 and 182 of the Constitution gave reliable pointers to the legal
status and effect of the Public Protector's remedial
power;
14.2
the
obligation (in s 181(3)) of other organs of state to assist and
protect her so as to ensure her dignity and effectiveness, was
relevant to the enforcement of her remedial power — she would
arguably lack dignity and be ineffective if her directives
could be
ignored;
14.3
a
remedial power that was so inconsequential that those against whom it
was exercised could ignore or second-guess it, was irreconcilable
with the need for an independent, impartial and dignified Public
Protector;
14.4
while
it might sometimes be a mere recommendation, it would often have to
be binding to effectively address the complaint;
14.5
when
remedial action was binding, compliance was obligatory and could not
be ignored without legal consequences.
THE
RESPONDENTS' CASE
[15]
In essence, the respondents’ case
is that the occupiers of whom some are illegal, demand unlimited
borehole water, which cannot
be supplied free of charge, and that the
borehole water can be supplied to the occupiers at a rate of R300.00
per 5 000 litres.
According to the respondents the occupiers
refuse to engage in discussions with regards to the management of the
water. The occupiers
still have access to the water from the river
(the appropriateness of which is placed in dispute by the occupiers)
and municipality
(which is said by the occupiers to be irregular) for
their personal- and animal use.
[16]
The respondents seek that the SAHRC
assists in engaging the occupiers in order to establish a
constructive water management system,
which also includes the right
of access to water for the farm owner itself and the management of
the water, taking care of a scarce
comminatory. The occupiers demand
for water from the borehole is there for unreasonable and
unsustainable.
[17]
It appears to be common cause,
alternatively not seriously disputed, that the occupiers, or at the
very least the complainant’s
father, enjoyed access to borehole
water free of charge prior to May 2016 and from the former farm
owner.
[18]
As remarked by the SAHRC this is thus
not a situation of complete refusal to supply water, but the issue
appears to be that there
is according to the respondents no
obligation on them to provide the water nor to provide same free of
charge. It was submitted
that even if it was the respondents
obligation they cannot supply borehole water to all of the occupiers,
currently exceeding 100
occupiers, some of whom are illegal
occupiers, as the water supply is not unlimited.
[19]
In the answering affidavit the
respondents states that they “
do
not object
” that the SAHRC’s
directives are binding in terms of Section 184 of the Constitution,
but deny that their failure or
refusal to comply with the said
directives is unlawful and unconstitutional. In terms of Rule 6 of
the Uniform rules of court a
respondents needs to either admit, deny,
confess and avoid an allegation. Should that not be done the court
can regard the allegation
to be admitted. In this respect the
respondents’ affidavit falls short. However, considering the
important issues raised
and the far reaching effect of the relief
sought it would not be just to approach this matter on a technical
basis. Whether the
directives issue in terms of Section 184 of the
Constitution is generally binding, still requires closer
consideration.
[20]
It is argued that although the SAHRC may
take steps to secure redress where rights have been violated, it does
not enshrine it with
judicial power to issue orders that must
automatically be adhered to where it concerns private individuals.
[21]
The respondents further contend that the
occupiers have no established personal right in respect of the
borehole water, and no rights
or obligations have been formally ceded
or assigned to them in this respect. It is submitted that the duty to
provide water is
a constitutional duty befalling the government of
the Republic of South Africa. It is contended that the SAHRC knowing
that the
second respondent is an individual, can impossibly not
fulfil a constitutional state obligation.
[22]
It is undisputed that there are
currently illegal occupants on the farm, which aspect according to
the respondents has been brushed
off by the SAHRC as unimportant. The
respondents contend that this is most important, considering that it
is directly linked to
whom the water stands to be provided, as well
as the volume required.
[23]
The respondents argue that the it is
burdensome and unreasonable of the SAHRC to expects the respondents
to provide scientific reports
without even considering who would be
obliged to pay for same to be prepared.
ACCESS
TO WATER
[24]
Without dealing with a person’s
right to access to water comprehensively it is necessary to
outline
some aspects in order to better
understand and inform the considerations of the directives by the
SAHRC.
[25]
Our Constitution affords each person in
South Africa certain justiciable social economic rights, such as the
right to have access
to sufficient food and water in terms of Section
27 of the Constitution. However this right is limited by Section
27(2), which
requires the State to take reasonable legislative and
other measures, within its available resources, to achieve the
progressive
realisation of each of these rights.
[26]
The
Water Services Act 108 of 1997 (“WSA”) gives expression
to Section 27(1)(b) of the Constitution.
[2]
The WSA expressly codifies the circumstances in which land owners
will be responsible for providing water to people living on privately
owned land. The WSA further introduced the notion of water services
intermediaries, which is someone who has a contract with someone
else, which contains an obligation to provide the other person to the
contract with water services, and where this obligation is
incidental
to the main object of the contract.
[27]
Water supply is a municipal function in
terms of
Schedule 4
Part B of the Constitution. Private
landowners
have no direct statutory obligation to provide water services unless
contracted to do so as a water service provider,
although a landowner
may acquire an obligation as a water service intermediary in terms of
a contract.
[28]
It appears that the occupiers or at the
very least the complainants father is a occupier as defined in
section 1 of The Extension
of Security of Tenure Act 62 of 1997
(“ESTA”). In terms of section 6 of ESTA an occupier shall
have the right to reside
on and use the land on which he or she
resided and which he or she used on or after 4 February 1997, and to
have access to such
services as had been agreed upon with the owner
or person in charge, whether expressly or tacitly.
[29]
ESTA further provides in subsection 2
that:
“
Without
prejudice to the generality of the provisions of section 5 and
subsection (1), and balanced with the rights of the owner
or person
in charge, an occupier shall have the right-
(a) ….
(e) not
to be denied or deprived of access to water; and
(f) not
to be denied or deprived of access to educational or health
services.”
[30]
ESTA does not place a positive
obligation upon the land owner to provide water, even more so without
charge.
[31]
In
Mshengu v Umsunduzi Local Municipality
[3]
the
court held that regardless of land ownership a municipality still has
the primary obligations to provide people with access
to sufficient
water. Further that
ESTA
provides that a landowner cannot reasonably refuse a municipality
access to his or her land in order to install infrastructure
that
would facilitate access to water. A land owner merely has a secondary
obligation in terms of Section 8 and 27 of the Constitution
not to
refuse access to the water services authority/municipality for the
purpose to install infrastructure.
[4]
[32]
Human
rights obligations have a bearing on private actors. In terms of
Section 8(2) of the Constitution, which provides that the
Bill of
Rights binds a natural or a juristic person if and to the extent that
it is applicable, taking into account the nature
of the right and the
nature of any duty imposed by the right. However, the language of
this provision does not impose an absolute
obligation on private
actors such as land owners. It indicates that when determining
whether Section 8(2) is applicable, one must
establish whether the
Section applies to a particular case and if it does apply, the extent
to which it applies. Therefore, a court
must take into account the
nature of the right and the nature of any duty imposed by the
right.
[5]
PURPOSE
AND POWERS OF SAHRC
[33]
In order to appreciate the role of the
SAHRC and more so when they issue directives the purpose and powers
of the SAHRC should be
understood.
[34]
The
six institutions established under Chapter 9 have some common
functions such as checking government and promoting social justice
but are distinct and purposeful. The SAHRC as a Chapter 9 institution
was created to “
strengthen
constitutional democracy in the Republic
”.
[6]
[35]
In the language of the Constitution,
“
checking and monitoring
government
” contributes to
holding government accountable. The Chapter 9 institutions’
functions to promote social justice also
means contributing to the
transformation of South Africa into a society in which social justice
prevails.
[36]
The
SAHRC, as in the case of the other Chapter 9 institutions, is
expected to be independent and impartial. The SAHRC is too a
differing degree from other Chapter 9 institutions, “
intermediatory
institution providing a link between people on the one hand and the
executive and parliament on the other”.
[7]
[37]
It
is important to be mindful that the SAHRC stands outside of
government and is not a branch of government. It is further not a
legislative, judicial or an executive organ, and therefore does not
exercise power in the same way as the executive, legislature
or
parliament do. Although it has investigatory power and it may be
interpreted to have certain administrative powers, it does
not
govern.
[8]
[38]
The mandate of the SAHRC is intended to
supplement the traditional methods of securing accountability from
government, but this
checking role is different from that which one
branch of government exercises over another in a system of separation
of power with
checks and balances. This is so, as the SAHRC is does
not have governmental powers, and unlike courts, it cannot
conclusively declare
government actions to be unconstitutional or
illegal, nor can it order the executive to act in a certain way, and
it cannot penalise
unconstitutional behaviour.
[39]
I
find the type of control the SAHRC has over government and the public
to be accurately described by
Reif
in the Harvard Human rights Journal. She describes this type of
control as “
cooperative
control”.
[9]
She explains that cooperative control is facilitative and proactive,
it uses advice and persuasion, wherein the act is conferred
and
dialogue to try to obtain the desired result and change behaviour.
This is contrary to coercive control, which is reactive
and control
imposed by unilateral or forced decision.
[40]
The
SAHRC clearly has one of the broadest mandates of all the Chapter 9
institutions. That is focussed (without being limited) by
the
requirement to monitor social and economic rights.
[10]
[41]
From
Sections 181
[11]
and 184
[12]
of the Constitution it is clear that the SAHRC is most
central
in monitoring government’s commitment to human rights, but also
in transforming of South Africa into a society in which social
justice prevails.
[42]
In
addition to the constitutional powers set out in section 184, it has
statutory powers. Section 13 of the South African Human
Rights
Commission Act 40 of 2013 sets out the powers and functions of the
SAHRC.
[13]
In this respect it
provides as follows:-
“
(1)
…
(a)
The Commission is competent and
is obliged to
(i)
make recommendations to organs of
state at all levels of government where it considers such action
advisable for the adoption of
progressive measures for the promotion
of human rights within the framework of the Constitution and the law,
as well as appropriate
measures for the further observance of such
rights;
(ii)
undertake such studies for
reporting …
(3)
The Commission is competent
(a)
to investigate on its own
initiative or on receipt of a complaint, any alleged violation of
human rights, and if, after due investigation,
the Commission is of
the opinion that there is substance in any complaint made to it, it
must, in so far as it is able to do so,
assist
the complainant and other persons adversely affected thereby, to
secure redress,
and where it
is necessary for that purpose, to do so, it may arrange for or
provide financial assistance to enable proceedings
to be taken to a
competent court for the necessary relief or may direct a complainant
to an appropriate forum; and
(b)
to bring proceedings in a
competent court or tribunal in its own name, or on behalf of a person
or group or class of persons.
(4)
All organs of state must afford the Commission such assistance as may
reasonably require for the effective
exercising of its power and
performance of its functions.”
[43]
The wording in both section 184 of the
constitution and section 13(3) of the SAHRC act lends credence to the
type of control to
be exercised by the SAHRC as cooperative control.
[44]
Most relevant in the present matter is
that the Constitution provides that “
the
South African Human Rights Commission has the power … to take
steps to secure appropriate redress where human rights
have been
violated
.” Whereas Section
13(3) of the SAHRC Act provides that “
it
must, in so far as it is able to do so, assist the complainant and
other persons adversely affected thereby, to secure redress,
and
where it is necessary for that purpose, to do so, it may arrange for
or provide financial assistance to enable proceedings
to be taken to
a competent court for the necessary relief or may direct a
complainant to an appropriate forum.”
[45]
As the SAHRC relied heavily on that
found in the Nkandla judgment and in considering the argument by the
SAHRC, it is necessary
to
study
and compare the powers bestowed upon the
Public Protector by the Constitution and that bestowed upon the
SAHRC.
[46]
Although
the Office of the Public Protector and the SAHRC have a lot in
common, they are not identical. From the ranking of the
Chapter 9
institutions, it appears that there is a constitutional hierarchy.
The Office of the Public Protector being the first
institution
suggests an elevated status. This is not only so when regard is had
to Section 193(5) of the Constitution, but also
when the
Constitution’s specific function and powers are compared.
Creedence is lend hereto by the heightened majority for
the
appointment and removal of the Public Protector.
[14]
[47]
The Public Protector has the direct power to take remedial
action, whereas the SAHRC is constitutional empowered to take steps
to
secure appropriate redress. It does not empower the actual taking
or issuing of remedial action or ordering of redress. The wording
is
purposefully different.
[48]
This
does however not mean that because the SAHRC’s powers are
different
to
that of the Public protector they are automatically not binding or
able to be ignored. The rule of law requires that no power
be
exercised unless it is sanctioned by law and no decision or step
sanctioned by law may be ignored based purely on a contrary
view
held.
[15]
As further held in
Nkandla “
Our
foundational value of the rule of law demands of us, as a law-abiding
people, to obey decisions made by those clothed with the
legal
authority to make them or else approach courts of law to set them
aside so we may validly escape their binging force.”
[49]
This translates therein that where the
SAHRC exercise a power it is sanctioned to exercise in terms of the
law (Constitution and
SAHCR Act) those against who such power is
exercised is obliged to obey same.
[50]
Further,
although the government in terms of Section 181(3) of the
Constitution is obliged to assist and to protect Chapter 9
institutions
and to ensure their independence, impartiality, dignity
and effectiveness, the court was not directed to a similar obligation
imposed
by the Constitution directly on a private person.
That
being so, a private person may not interfere with the functioning of
such institutions, but this does not place an obligation
of
enforcement of the directives of the SAHRC on such a private person.
In the work of
Constitutional
Law of South Africa
[16]
it was held that “(a
)
decision made in resolving a complaint is not understood to be
binding on the parties to the dispute, although some State organs
have treated the Commission’s decisions as binding.
”
[51]
As dealt with above, unlike the Public Protector, the SAHRC is
not empowered to “take remedial action”. It can and must
take steps to secure appropriate redress in the event of a violation
of human rights. The SAHRC must investigate, consider and
establish
what would constitute appropriate redress for the violation. And then
take or assist to take steps to secure same. The
language of
both the Constitution and SAHRC Act lends credence thereto that the
SAHRC is to “
take steps to secure appropriate redress
”,
“
assist…to secure appropriate redress
”.
[52]
As the SAHRC has no penal power in
respect of human rights violations or unconstitutional behaviour it
would
have to take a further step such as approaching a court
of law to secure appropriate redress for a person whose human rights
have
been violated.
[53]
In terms of the interim Constitution,
the Public Protector was not empowered to take remedial action. Its
powers were in essence
advisory in nature. Although this is not
exactly the same as the powers enjoyed by the SAHRC under the
Constitution, it bears similarity
in that the SAHRC is not empowered
to take remedial action but to take steps to secure appropriate
redress and assist a complainant
to secure remedial redress, as well
as where necessary arrange for or provide financial assistance to
enable proceedings to be
taken to a competent court for the necessary
relief
.
[54]
Every
complaint requires a practical or effective step that is in line with
its individualities and merit to move towards securing
appropriate
redress. The nature of the issue under investigation, the finding
made and the particular kind of steps taken would
determine the legal
effect it has on a person or institution it is addressed to.
[17]
.
[55]
Therefor as long as the directives of
the SAHRC are directives aimed at moving towards secure appropriate
redress, they may very
well be binding. However, where the directives
are in fact the appropriate redress, such directives do not find
their origin from
the Constitution and can’t be considered
binding. Whether the directive issued by the SAHRC are issued in
terms of its constitutionally
allocated power would be a matter of
interpretation aided by context, nature and language.
THE DIRECTIVES
ISSUED AGAINST THE RESPONDENTS
[56]
In
the matter at hand, the court is requested to grant an order in
general terms that the SAHRC’s directives issued in terms
of
Section 184(2)(b) of the Constitution are binding. The SAHRC has in
the papers before court failed to make out a case for such
a general
order. Whether such relief will ever be competent is questionable
when regard is had to the principles set out in
Nkandla
and for the reason that the nature of the issue under investigation,
the finding made and the particular kind of steps taken would
determine the legal effect it has on a person or institution it is
addressed to.
[18]
[57]
During argument I was requested to
consider the specific directives issues in this matter, should I not
be in agreement with the
general declarator sought. I will proceed to
do so.
[58]
It is submitted that the SAHRC standing
and function are precisely the same as the ones described by the
Chief Justice in the Nkandla
judgment, and in respect of the Public
Protector. The SAHRC contends that as its directives are sourced from
the Constitution itself,
it cannot be ignored, again placing reliance
on the Nkandla matter. It was submitted in paragraph 78 of the
SAHRC’s heads
of argument that absent the power to take binding
and “appropriate redress”, the SAHRC will have no
effective capacity
to strengthen constitutional democracy, because no
party against whom a directive has been issued, would comply with an
optional
remedy.
[59]
In my view the findings in
Nkandla
cannot blindly find application to directives issued by the SAHRC,
for the reasons set out above and
inter
alia
as the two chapter 9
institutions constitutional and statutory powers differ. There is an
undeniable difference between “take
appropriate remedial
action” and taking steps to secure appropriate address.
[60]
I don’t agree with the submission
on behalf of the SAHRC that without its directives being found to be
binding, it will have
no effective capacity to strengthen
constitutional democracy. Its powers authorise it to employ
cooperative control over government
as well as the public, and its
specific litigation powers empower it to litigate on human rights in
its own name on behalf of a
complainant. This in itself strengthens
constitutional democracy. It need to be understood that the SAHRC is
not the “punisher”
of human rights violations. It is the
educator, transformer and empowerer.
[61]
In light of that stated above it is
clear that the SAHRC cannot take binding appropriate redress or any
redress at all. What the
SAHRC is empowered to do is take steps to
secure appropriate redress. It cannot be the source of the redress.
[62]
It was further contended that the SAHRC
is not a legal aid office or law clinic, and does not have the
capacity to attend court
upon every complaint received or on every
single non-compliance experienced.
Similarly, I cannot agree
with the submission. As much as it is not the legal aid or a law
clinic, by the very nature of the powers
afforded to it, the SAHRC is
to act as a litigant or as set out in Section 13 of the South African
Human Rights Commission Act
40 of 2013, “
it must, in so far
as it is able to do so, assist the complainant and other persons
adversely affected thereby, to secure redress
and where it is
necessary for that purpose, to do so it may arrange for or provide
financial assistance to enable proceedings to
be taken to a competent
court for the necessary relief. Further advise, direct and refer
complainants to appropriate forums
.”
[63]
The first directive 12.1.1 as per
paragraph [4] above is based on the finding by the SAHRC that the
supply of borehole water to
the occupiers, without charge, was a
service that had been agreed upon (expressly or tacitly) with the
previous farm owner and
the second respondent prior to May 2016
within the contemplation of Section 6(1) of ESTA. However, from a
consideration of the
report and the legal analysis contained therein,
it seems it various applicable pieces of legislation has been
disregarded. In
illustration, ESTA does not put a positive obligation
upon the land owner to provide water, even more so without charge.
ESTA for
example does not oblige a land owner to provide schooling or
healthcare, so how can it place a positive obligation on a land owner
to provide water.
[64]
It was ignored that the Constitution
allocates water provision as a municipal function. Nor does it appear
the report gave any consideration
to the provisions of the WSA, and
Section 27(2) of the constitution. The investigation seems to ignore
the fact that not all the
occupiers on the farm are occupiers as
contemplated in ESTA. The directive is suggestive of a finding on the
remedy of spoliation.
[65]
This directive does not flow from the
constitutional and statutory powers enjoyed by the SAHRC. It does not
constitute a step to
secure appropriate redress, but in fact appears
to order the remedy which the occupiers would be entitled to seek
from a court,
i.e., to be supplied by the respondents with borehole
water free of charge. On identifying that the re-supply of water to
the occupiers
was appropriate redress the SAHRC ought to have
assisted the occupiers and taken steps to secure same through for
example approaching
a court for a spoliation order, declaration of
rights or interdictory relief.
[66]
The remaining two directives 12.1.2 and
12.1.3 quoted in paragraph [4] herein above are indeed in my view
directives issued in terms
of Section 184(2) of the Constitution, and
therefore cannot be ignored without consequence. Engagement and
exchange of information
are steps towards securing appropriate
redress.
[67]
It was contended by the respondents that
the SAHRC expects the respondents to provide scientific reports
without even considering
who would be obliged to pay for such reports
to be prepared. This contention is not correct when regard is had to
the content of
the directive and the words used therein. The
directive under 12.1.3 specifically states that “
the
second respondent is to supply relevant information which should
include all the scientific reports at the disposal of the second
respondent
”. This clearly
means available scientific reports. If same is not available there
can be no obligation to give it.
[68]
It is necessary to mention that the
occupants and the respondents appear to have a shared animosity
towards one another. This would
require mediation or facilitation in
order to secure appropriate redress in respect of the human rights
violation found to exist
by the SAHRC. This is so as both parties
complain of various acts and happenings between them from
frustrations to death threats,
which cannot be unattended and ignored
to ensure
harmonious
future co-habitation of the farm.
COSTS
[69]
Having regard to the subject matter,
relevant circumstance and relief granted herein below, I am of the
view that no cost order
would be justified in favour of any of the
parties.
CONCLUSION
[70]
In conclusion, no case has been made out
for a blanket order that all directives issued by the SAHRC are
binding.
[71]
Directive 12.1.1 issued by the SAHRC in
this matter has no legal effect, nor is it binding for want of it
coming into being through
the exercise of a statutory and
constitutional power of the SAHRC.
[72]
The two further directives under 12.1.2
and 12.1.3 are directives constituting steps to secure appropriate
redress and are actionable,
and can therefore not be ignored without
consequence.
ORDER
1.
The declaratory relief is dismissed.
2.
The first- and second respondents,
through the facilitation of the SAHRC, are ordered to engage with the
occupiers in good faith
on the future management of water supply on
the farm.
3.
The first- and second respondents are
ordered to make all relevant information available to the occupiers
for the purpose of meaningful
engagement in relation to the issue of
water management, which information shall include all the scientific
reports available and
at the disposal of the first- and second
respondents relating to the levels of the underground water on the
farm, as well as the
costs incurred by the first- and second
respondents in supplying water to the occupiers.
4.
The SAHRC to facilitate and/or mediate
aforementioned engagement.
5.
No order as to costs.
GREYLING-COETZER
AJ
HEARING
DATE:
16
NOVEMBER
2021
JUDGMENT
RESERVED:
07
DECEMBER 2021
FURTHER
SUBMISSIONS:
10
DECEMBER 2021
DATE
OF JUDGMENT:
02
MARCH 2022
Appearances:
For the
Applicant Adv
Marongo instructed by SAHRC
gkhoza@sahrc.org.za
For
the Respondents
Adv Linthout instructed by Frey Inc
cmarais888@gmail.com
[1]
2016
(3) SA 580
(CC) (“Nkandla judgment”)
[2]
The
WSA was promulgated to give content to the Minister’s
executive authority contemplated in Section 155(7) of the
Constitution.
Section 155(7) gives the National Government, subject
to Section 44 of the Constitution, legislative and executive
authority
to ensure effective performance by municipalities of their
functions in respect of matters listed in Schedule 4 and 5 of the
Constitution. Schedule 4 Part B of the Constitution lists water and
sanitation services.
[3]
2019
(4) All SA 469 (KZP)
[4]
para
63
[5]
“
Corporate
Law on the Constitution: Towards binding Human Rights
Responsibilities for Corporations
”
(2008) 125 SALJ 754
[6]
Section
181(1) of the Constitution
[7]
Murray
2006 PELJ 26
[8]
Resident
of the RSA v Hugo 1997 (4) SA 1 (CC)
[9]
Reif
2000 Harvard Human Rights Journal 28
[10]
Murray
PER 2006 (9) 2
[11]
Section
181 of the Constitution provides
“
(1)
The following state institutions strengthen constitutional democracy
in the Republic:
…. (b) the South African Human Rights
Commission …
(2)
These institutions are independent, and subject only to the
Constitution and
the law, and they must be impartial and must
exercise their powers and perform their functions without fear,
favour or prejudice.
(3)
Other organs of state, through legislative and other measures, must
assist
and protect these institutions to ensure their independence,
impartiality, dignity and effectiveness of these institutions.
(4)
No person or organ of state may interfere with the function of these
institutions.
(5)
These institutions are accountable to the National Assembly, and
must report
on their activities and the performance of their
functions to the Assembly at least a year.”
[12]
Section
184 of the Constitution provides:-
“
(1)
The South African Human Rights Commission must
(a)
promote respect for human rights and a
culture of human rights;
(b)
promote the protection, development and
attainment of human rights; and
(c)
monitor and assess the observance of human
rights in public.
(2)
The South African Human Rights Commission has the powers, as
regulated by
national legislation, necessary to perform its
functions, including the power
(a)
to investigate and to report on the observance of human rights;
(b)
to take steps to secure appropriate redress where human rights have
been violated
;
(c)
to carry out research; and
(d)
to educate.
(3)
Each year, the Human Rights Commission must require relevant organs
of state
to provide the commission with information on the measures
that they have taken towards the realisation of the rights in the
Bill Rights concerning housing, health care, food, water, social
security, education and the environment.
(4)
The South African Human Rights Commission has the additional powers
and functions
prescribed by national legislation.”
[13]
In
addition, Section 14 sets out the mediation, consolidation and
negotiation powers of the SAHRC, and Section 15 sets out the
investigative powers of the SAHRC and elaborates on the powers which
the SAHRC enjoys in respect of investigations pursuant to
Section
13(3).
[14]
Govender
and Swanepoel 2020 PELJ 23
[15]
Nkandla
at
par [75]
[16]
Woolman,
Roux, Klaaren, Stein and Chaskalson (Eds) Constitutional Law of
South Africa (2
nd
Edition) Chapter 24F 24/8
[17]
Nkandla
at par [70]
[18]
Nkandla
at par [70]