THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable
Case No: 39/2023

In the matter between:
THE SOUTH AFRICAN HUMAN
RIGHTS COMMISSION APPELLANT
and
AGRO DATA CC FIRST RESPONDENT
F G BOSHOFF SECOND RESPONDENT
and
AFRIFORUM NPC FIRST AMICUS CURIAE
CENTRE FOR APPLIED LEGAL
STUDIES SECOND AMICUS CURIAE
THE COMMISSION FOR GENDER
EQUALITY THIRD AMICUS CURIAE

Neutral citation: South African Human Rights Commission v Agro Data CC &
Another (Afriforum, Centre for Applied Legal Studies and
Commission for Gender Equality intervening as Amici
Curiae) (39/2023) [2024] ZASCA 121 (15 August 2024)
Coram: MOCUMIE, MBATHA, MOTHLE and MABINDLA-BOQWANA
JJA and TOLMAY AJA

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Heard: 12 March 2024
Delivered: This judgment was handed down electronically by circulation to the
parties’ representatives by email, publication on the Supreme Court of Appeal
website and release d to SAFLII. The date and time for hand -down of the
judgment is deemed to be 11h00 on 15 August 2024.
Summary: Constitutional law – s 184(2)(b) of the Constitution – powers of the
South African Human Rights Commission (the SAHRC) – whether s 184(2)(b)
of the Constitution , read with s 13(3) of the South African Human Rights
Commission Act 40 of 2013 empower the SAHRC to issue binding directives –
whether the respondents ought to have complied with the directive of the SAHRC
to restore the access to water for occupiers of their property – the SAHRC’s
powers distinguishable from those of the Public Protector.

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________________________________________________________________
ORDER
________________________________________________________________
On appeal from: Mpumalanga Division of the High Court, Mbombela
(Greyling-Coetzer AJ, sitting as a court of first instance):
The appeal is dismissed with no order as to costs.
________________________________________________________________
JUDGMENT
________________________________________________________________
Mbatha JA (Mocumie, Mothle and Mabindla -Boqwana JJA and Tolmay
AJA concurring):

Introduction
[1] The forebears of our Constitution found it in their wisdom to introduce
institutions to strengthen our constitutional democracy. These institutions are
listed in Chapter 9 of the Constitution (Chapter 9 institutions). The appellant, the
South African Human Rights Commission (the SAHRC) is one of them. Each of
these Chapter 9 institutions have been given functions and powers to achieve that
constitutional object. In sharp focus in this appeal are the powers of the SAHRC,
whether it can issue binding directives to those it finds to have violated human
rights. The human right said to have been violated in this case, is access to water’.

[2] ‘Water is life’s matter and matrix mother and medium. There is no li fe
without water ’.1 There is no bett er fitting description than this . The United
Nations (the UN) recognises access to water and sanitation as human rights
fundamental to everyone’s health , dignity and prosperity. 2 It recognises that
marginalised groups are often overlooked and, sometimes face discrimination as

1 Albert Szent-Gyorgyi, M.D (1937 Nobel Prize for Medicine, 1893-1986).
2 United Nation: Human Rights to Water and Sanitation accessed at https://www.unwater.org/water-facts/human-
rights-water-and-sanitation.

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they try to access the water and sanitation services they need. This , inevitably,
has the consequent adverse impact on women, children, and previously
disadvantaged people.

[3] Access to safe drinking water and sanitation are internationally recognised
human rights, derived from the right to an adequate stan dard of living under
Article 11(1) of the International Covenant on Economics, Social and Cultural
Rights.3 On 28 July 2010, the UN General Assembly adopted a historical
resolution recognising ‘the right to safe and clean drinking water and sanitation
as a human right that is essential for the full enjoyment of life and all human
rights’.4 In 2015 it recognised that both the right to safe dri nking water and the
right to sanitation are closely related but distinct human rights.5

[4] The right to water and sanitation is a fundamental basic human right
provided in the Bill of Rights in the Constitution of the Republic of South Africa,
1996 (the Constitution). Section 27(1) (b) of the Constitution provides that
everyone has the right to have access to sufficient food and water. It is thus
axiomatic that n o one has a right to deprive any person of such a fundamental
right. While not at the heart of this appeal for determination, it is important to
express my view that any deprivation of clean water to people i s appalling,
dehumanising and impacts on their rights to dignity and life. Before I deal with
the issues on appeal, I briefly set out the background.

Background facts
[5] On or about 29 May 2018, the SAHRC, received a complaint from Mr
William Trinity Mosotho (Mr Mosotho), lodged on behalf of his elderly father,

3 Adopted on 16 December 1966 by the General Assembly resoluti on 2200A(XX1). Entry into force: 3 January
1976, in accordance with article 27.
4 Article 11(1) of the International Covenant on Economics, Social and Cultural Rights A/RES/64/292 .
5 Op cit fn 2.

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Mr Tubatsi Mosotho (Mr Mosotho Snr) , and other occupiers of the farm. The
complaint was that , in 2016, the second respondent, Mr Francois Gerhardus
Boshoff (Mr Boshoff) unilaterally introduced restrictions to the occupiers’ use of
water on the farm, w hich consequently deprived them of access to the borehole
water on the farm.

[6] The SAHRC’s preliminary investigation of the complaint disclosed a
prima facie violation of the occupiers ’ right to property enshrined in s 25(6) of
the Constitution. Henceforth, it commenced an investigation in terms of ss 184(1)
and 184(2)(a) and (b) of the Constitution, read with s 13(3) of the South African
Human Rights Commission Act 40 of 2013 (the SAHRC Act). At the completion
of the investigation, it compiled a report where it found that Agro Data CC and
Mr Boshoff (the respondents) violated the occupiers’ rights to access to water, as
contemplated by s 6(2)(e) of the Extension of Security of Tenure Act 62 of 1997
(the ESTA) and s 27(1)(b) of the Constitution. It also concluded that the right to
dignity of the occupiers (s 10 of the Constitution) was infringed and needed to be
protected.

[7] On 13 July 2018, the SAHRC forwarded a letter to the respondents’
attorneys of record, detailing the complaint against them. The main complaint
was that Mr Boshoff deprived the occupiers of their only source of water, the
borehole. To substantiate this complaint, they alleged that he had drastically
rationed their water supply and demanded a payment for it contrary to the practice
under the former owner who granted them access to the water free of charge. And
that he also demanded that they use the river water which was not fit for human
consumption.

[8] On 30 July 2018 , the respondents’ attorneys responded den ying the
allegations and set out numerous counter-allegations against the occupiers. On 10

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August 2018 and 25 September 2018 respectively, the SAHRC visited the farm
for consultations and to conduct an inspection in loco. Eight months later on 29
March 2019 the SAHRC afforded the parties an opportunity to comment on its
preliminary investigative reports. The respondent did not respond and ma de no
comments on the reports. On 20 September 2019, about six months later, the final
investigative report, which contained the SAHRC’s directives was served on all
the parties.

[9] The SAHRC’s findings were listed as follows:
(a) that the respondents violated the occupiers’ right to dignity in terms of s 10 of
the Constitution;
(b) that Mr Boshoff unilaterally made restrictions and conditions on the
occupiers’ existing right to a life-sustaining resource;
(c) that Mr Boshoff exercised absolute power over the occupiers, treated them as
an inconvenience, and stripped them of their dignity; and
(d) that deprivation of a right to access water to the occupiers, amounted to a
violation of s 6(2)(e) of ESTA read with s 27(1)(b) of the Constitution.

[10] In line with its findings, the SAHRC, issued the following directives:
‘12.1.1 That the First and/or Second Respondents [to] restore the supply of borehole water to
the Occupiers within 7 days of the report.
12.1.2 That, within 30 days of the report, the parties commence engagement in good faith on
the management of water on the Farm, with the view to ensuring an equitable sharing of this
scarce resource.
12.1.3 The Second Respondent to supply the Occupiers with all the relevant information
within 14 days of this report, to enable them to engage meaningfully in relation to the issue of
water management on 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 cost s incurred by the Second Respondent in the supply of water to the
Occupiers.

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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.’

[11] On 15 October 2019, the SAHRC upon visiting the farm, discovered that
the directives had not been complied with in any respect. When it enquired from
the respondents, their response confirmed non -compliance with the directives.
The SAHRC also confirmed that the occupiers had not been given access to the
borehole water. Mr Boshoff insisted that the occupiers could not access the
borehole water without paying the amount he set for the purchase thereof. He also
countered with various claims against the occupiers which he alleged the SAHRC
did not even consider in the whole equation. On 23 September 2020, the SAHRC
paid another visit to the farm to ascertain if there had been any attempt to comply
with the directives. It came to its attention that the borehole water had not been
restored to the occupiers to access the water, and none of the other directives had
been complied with. The SAHRC was informed that the Municipality had
installed a water tank. The occupiers alleged that this intervention was not
sufficient to meet their needs, and those of their livestock, as it was not regularly
replenished.

[12] The respondents’ disregard of its directives prompted the SAHRC to
launch an application to the Mpumalanga Division of the High Court, Mbombela
(the high court), where it sought the following relief:
‘1. It is declared that the South African Human Rights Commission ’s directives issued in
terms of section 184(2)(b) of the Constitution are binding.
2. It is declared that the First and/or Second Respondents’ refusal and/or failure to comply
with the Applicant's Directives in respect of the complaint under file reference number
MP/1819/0179 is unlawful and constitutionally invalid.
3. That the First and/or Second Respondents must restore the supply of borehole water to the

3. That the First and/or Second Respondents must restore the supply of borehole water to the
Occupiers of Portion 3 of the farm Doorhoek, 143 JT, Thaba Ch weu ("Farm") at no cost
to the Occupiers within 7 days of the judgment of this Court.

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4. That, within 30 days of the judgment of this Court, the First and/or Second Respondents
commence engagement with the Occupiers in good faith on the future management of
water supply on the Farm.
5. That, within 14 days of the judgment of this Court, t he First and/or Second Respondents
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 the supply of water to the Occupiers.
6. That the First and/or Second Respondents pay the Applicant's costs.
7. That the Court grant the Applicant further and/or alternative relief.’

[13] The application served before Acting Judge Greyling -Coetzer, who
dismissed the application for declaratory relief. She, however, ordered the
respondents 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 respondents relating to the levels of the underground water on the
farm, as well as the costs incurred by the respondents in supplying water to the
occupiers. She further ordered the SAHRC to facilitate and/or mediate the
aforementioned engagement. No order for costs was made. Disappointed with the
outcome of the application for declaratory relief, the SAHRC sought leave to
appeal to this Court from the high court, which was granted.

[14] At this stage, I must point out that Afriforum NPC, a non-profit civil rights
organisation, was admitted as the first amicus curiae. The Centre for Applied
Legal Studies (CALS), an organisation promoting human rights in South Africa,

Legal Studies (CALS), an organisation promoting human rights in South Africa,
was admitted as the second amicus curiae. The Commission for Gender Equality
was admitted as the third amicus curiae. All three amici made written and oral
submissions before this Court. The respondents did not file any papers nor were
they represented at the hearing of the appeal.

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Issues before this Court
[15] The issue central to the appeal is whether the SAHRC may issue binding
directives in terms of s 184(2)(b) of the Co nstitution read with s 13(3) of the
SAHRC Act. Differently stated, can a respondent against whom the directives are
issued by the SAHRC simply ignore them, without resorting to a court of law to
review the SAHRC’s decision.

The legal framework
[16] The SAHRC is one of the six Chapter 9 institutions, which were established
by the Constitution to strengthen constitutional democracy in the Republic of
South Africa. In terms of s 181(2) of the Constitution, ‘[t]hese institutions are
independent, and subject only to the Constitution and the law. T hey must be
impartial and must exercise their powers and perform their functions without fear,
favour or prejudice’. Sections 181(3), (4) and (5) provide as follows:
‘(3) Other organs of state, through legislative and other measures, must assist and protect these
institutions to ensure the independence, impartiality, dignity and effectiveness of these
institutions.
(4) No person or organ of state may interfere with the functioning of these institutions.
(5) These institutions are accountabl e to the National Assembly, and must report on their
activities and the performance of their functions to the Assembly at least once a year.’

[17] The functions and powers of the SAHRC are set out in s 184 of the
Constitution, which provides as follows:
‘(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 the Republic.
(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;

(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;

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(c) to carry out research; and
(d) to educate.
(3) Each year, the South African 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 of Rights concerning housing, health care, food, water,
social security, education and the environment.
(4) The South African Human Rights Commission h as the additional powers and functions
prescribed by national legislation.’

[18] The South African Human Rights Commission Act 40 of 2013 (the
SAHRC Act) provides for the composition, powers, functions and functioning of
the SAHRC. It accords additional powers and functions to those conferred by the
Constitution. The repeal ed Human Rights Commission Act 54 of 1994 (the
Human Rights Commission Act), made provision for the powers and functions
sourced from the Interim Constitution and for matters connected therewith.

[19] Section 2 of the SAHRC Act sets out the objects of the SAHRC as follows:
‘(a) to promote respect for human rights and a culture of human rights;
(b) to promote the protection, development and attainment of human rights; and
(c) to monitor and assess the observance of human rights in the Republic.’
In addition, the powers of the SAHRC are set out in s 13 of the SAHRC Act. The
powers in s 13 are in addition to any other powers and functions conferred on, or
assigned to it by ss 184(1), (2) and (3) of the Constitution, the SAHRC Act itself,
or any other law, in order for the SAHRC to achieve its objectives.

[20] Section 13 sets out the competency of the SAHRC as follows:
‘(1) In addition to any other powers and functions conferred on or assigned to it by section
184(1), (2) and (3) of the Constitution, this Act or any other law and in order to achieve its
objects–
(a) the Commission is competent and is obliged to–
(i) make recommendations to organs of state at all levels of government where it considers

(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

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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 on or relating to human rights as it considers
advisable in the performance of its functions or to further the objects of the Commission;
and
(iii) request any organ of state to supply it with information on any legislative or executive
measures adopted by it relating to human rights; and
(b) the Commission–
(i) must develop, conduct or manage information programmes and education programmes
to foster public understanding and awareness of Chapter 2 of the Constitution, this Act and
the role and activities of the Commission;
(ii) must as far as is practicable maintain close liaison with institutions, bodies or
authorities with similar objectives to the Commission in order to foster common policies
and practices and to promote co-operation in relation to the handling of complaints in cases
of overlapping jurisdiction or other appropriate instances;
(iii) must liaise and interact with any organisation which actively promotes respect for
human rights and other sectors of civil society to further the objects of the Commission;
(iv) may consider such recommendations, suggestions and requests concerning the
promotion of respect for human rights as it may receive from any source;
(v) must review government policies relating to human rights and may make
recommendations;
(vi) must monitor the implementation of, and compliance with, international and regional
conventions and treaties, international and regional covenants and international and
regional charters relating to the objects of the Commission;
(vii) must prepare and submit reports to the National Assembly pertaining to any such
convention, treaty, covenant or charter relating to the objects of the Commission; and
(viii) must carry out or cause to be carried out such studies concerning human rights as

(viii) must carry out or cause to be carried out such studies concerning human rights as
may be referred to it by the President, and the Commission must include in a report referred
to in section 18(1) a report setting out the results of each study together with such
recommendations in relation thereto as it considers appropriate.
(2) (a) the Commission may recommend to Parliament or any other legislature the adoption of
new legislation which will promote respect for human rights and a culture of human rights.
(b) If the Commission is of the opinion that any proposed legislation might be contrary to
Chapter 2 of the Constitution or to norms of international human rights law which form part of

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South African law or to other relevant norms of international law, it must immediately report
that fact to the relevant legislature.
(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 t he 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, o r on behalf of a
person or a group or class of persons.
(4) All organs of state must afford the Commission such assistance as may be reasonably
required for effective exercising of its powers and performance of its functions.’ (Emphasis
added.)

The high court proceedings
[21] Before the high court, the SAHRC sought a blanket declaratory order, to
the effect that it issued binding directives in terms of s 184(2) (b) of the
Constitution. In addition, it had sought that the respondents’ refusal and/or failure
to comply with the directives be declared unlawful and unconst itutional. The
SAHRC for this contention relied on its constitutional powers to take appropriate
steps to redress the violation of human rights in terms of s 184(2) (b) of the
Constitution. In that regard, it submitted that the respondents had a legal duty to
comply with the directives and co -operate with the SAHRC in its efforts to
redress human rights violations. It submitted that all this stemmed from the
binding nature of the directives.

[22] In its answering affidavit, t he respondents countered the SAHRC’s

[22] In its answering affidavit, t he respondents countered the SAHRC’s
assertions by stating that ‘they did not object’ that the SAHRC's directives were
binding, as envisaged by s 184, but denied that failure to comply with them was

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unlawful and unconstitutional. The y also submitted that, although the SAHRC
may take steps to secure redress where rights had been violated, it was not clothed
with judicial power to issue directives that are automatically binding.

[23] Broadly, the hig h court found that the SAHRC had failed to make out a
case f or a general declaratory order o n the directives issued in terms of
s 184(2)(b). It found that the SAHRC’s powers were distinguishable from those
of the Public Protector (the PP), another Chapter 9 institution. It further held that
the SAHRC ought to have assisted the occupiers by approaching the courts for
relief, which may have included a spoliation order, declaration of rights or
interlocutory relief. In addition, it found that the further directives issued by the
SAHRC, in terms of s 184(2) of the Constitution could not be ignored without
any consequences, because the section makes provision for engagement and
exchange of information as steps towards securing appropriate redress.

[24] On the powers and functions of the SAHRC, the high court held that ,
although the Chapter 9 institutions share common functions in monitoring
government functions and promoting social justice, they were distinct from each
other as they were different institutions. It acknowledged that the SAHRC had
investigatory powers and certain administrative powers but held that it did not
‘govern’ like the three arms of government. Its monitoring role is different from
the courts of law as it is no t empowered to declare government actions to be
unconstitutional or illegal, nor can it order the executive to act in a certain way.
It held further that, although the SAHRC had a lot in common with the office of
the PP, they are not identical as there is a constitutional hierarchy, discernible
from the fact that the office of the PP is the first on the list of the Chapter 9
institutions. It reasoned that this suggests an elevated status of the office of the

institutions. It reasoned that this suggests an elevated status of the office of the
PP. In addition, it found that the elevated statu s of the PP’s office is also
discernible from the appointment and removal of the PP, which requires a two

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third’s majority of the National Assembly. Last, it held that the Constitution and
the Public Protector Act 23 of 1994 (the PP Act), specifically give the PP remedial
powers, unlike the SAHRC under the SAHRC Act. As a result, the SAHRC is not
empowered to take ‘remedial action’ but is empowered ‘to take steps to secure
appropriate redress’ only.

South African Human Rights Commission’s submissions
[25] Before this Court, the SAHRC argued that no legitimately exercised power
can be ignored without consequences. It advanced the argument , that for the
SAHRC to effectively fulfil its obligations in terms of s 181 of the Constitution,
its ‘directives’ must be binding and cannot be ignored. If they were held not to be
binding, the rights envisaged in the Constitution, such as the right to access water,
like in this case, would be meaningless. It submitted that the deliberate failure to
comply with the dire ctives of the SAHRC, amount ed to self -help, which is
unlawful and unconstitutional. Furthermore, the resources of the SAHRC and the
number of complaints it receives, would not make it possible for the SAHRC to
approach a court of law in respect of each and every complaint that it dealt with.
It further submitted that a holding that the ‘directives’ are not binding, would be
tantamount to leaving the multitudes of poor people that it serves with no redress.
Last, it submitted that in terms of ESTA, no new farm owner can unilaterally cut
off water supply to the occupiers who previously had an agreement to access such
supply with the previous owner.

[26] In asserting that its directives are binding, the SAHRC specifically relies
on s 184(2) (b) of the Constitution , which provides that the SAHRC ‘has the
powers, as regulated by national legislation, necessary to perform its functions,
including the power to take steps to secure appropriate redress where human
rights have been violated’. I must point out that it was accepted by all the parties

rights have been violated’. I must point out that it was accepted by all the parties
that the SAHRC had completed the investigation and made two reports, (the

15


preliminary and final reports), on its observance of abuse of basic human rights.
This led to the issuing of directives by the SAHRC, which were not complied
with by the respondents. The SAHRC contended that its submissions are to ensure
that the legitimacy of the SAHRC as a Chapter 9 institution is maintained. By so
doing, it would be able to rightfully exercise its powers over the people who are
affected by its decisions.

[27] The SAHRC further submitted that the powers of the SAHRC embodied in
s 13(3) of the SAHRC Act, ought to be read through the prism of the Constitution.
In support of this contention, it relied on the Constitutional Court judgment of
Economic Freedom Fighters v Speaker of the National Assembly and Others;
Democratic Alliance v Speaker of the National Assembly and Others (Economic
Freedom Fighters),6 which rejected the argument that the powers of the PP must
be primarily from the PP Act and that the remedial powers of the PP were not
binding. The SAHRC emphasised that the SAHRC Act is also not the only source
of the powers of the SAHRC. It must therefore follow that the SAHRC Act must
be read with the powers conferred by s 184(2)(b) of the Constitution.

[28] The SAHRC further advocated for the view that the wording of
s 184(2)(b): ‘to take steps to secure appropriate redress where human rights have
been violated’ was to be read with s 181 of the Constitution. It submitted that the
wording of s 181 provides the context and purpose of the power in s 184(2) (b).
Its argument was that s 181 provides that the SAHRC is independent, subject only
to the Constitution and the law. And that it must act impartially and without fear,
favour or prejudice in the exercise of its powers and functions. These attributes,
so it was contended, apply to all the Chapter 9 institutions as confirmed in

6 Economic Freedom Fighters v Speaker of the National Assembly and Others; Democratic Alliance v Speaker of

the National Assembly and Others [2016] ZACC 11; 2016 (5) BCLR 618 (CC); 2016 (3) SA 580 (CC) (Economic
Freedom Fighters) para 68.

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Economic Freedom Fighters.7 In that regard, if the Chapter 9 institutions’ role is
to strengthen democracy, their findings cannot be ignored at a whim.

[29] Furthermore, the SAHRC pointed out that in Economic Freedom Fighters
the Constitutional Court stated that:
‘No decision grounded on the Constitution or law may be disregarded without recourse to a
court of law. To do otherwise would “amount to a license to self -help”. Whether the Public
Protector’s decisions amount to administrative action or not, the disregard f or remedial action
by those adversely affected by it, amounts to taking the law into their own hands and is illegal.’8
Similarly, so it advanced, its directives cannot be ignored merely because the
respondent disagrees with them or is unable to fulfil them . That being the case,
those that it found against had to approach a court of law to seek redress.

[30] According to the SAHRC, the high court’s interpretation of the phrase
‘appropriate redress’ in s 184(2)(b) of the Constitution and its finding that it was
only the PP that ha d direct powers to take remedial action , had the eff ect of
reducing the safeguards enshrined in the Constitution . A nd such a finding
impacted adversely on its powers.

[31] Finally, the SAHRC submitted that the high court misdirected itself when
it found that there is a constitutional hierarchy in the ranking of the Chapter 9
institutions. In addition, it argued that the high court misdirected itself by finding
that the functions of the SAHRC should be oversee n by the courts, as this does
not appear from the Constitution. It asserted that such an interpretation limits the
powers of the SAHRC provided for expressly in the Constitution. Same goes with
the high court’s finding as regards the powers of the SAHRC to litigate, accorded
in ss 184(2)(b) and 13(3) of the SAHRC Act.


7 Ibid para 49.
8 Ibid para 74.

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The Centre for Applied Legal Studies’ submissions
[32] CALS largely supported the argument advanced by the SAHRC. Its main
contention, in support of the SAHRC’s appeal , was that the interpretation of
s 184(2)(b) given by the high court fundamentally affect ed the mandate of the
SAHRC as a Chapter 9 institution. Section 184(2)(b) should be interpreted to
accord with international law, that is, in terms of s 233 read with s 39(1)(a) of the
Constitution. International law guide lines, afford human rights institutions like
the SAHRC the broadest possible mandate. Their powers are to be interpreted in
a manner that promotes the fundamental right to access remedies, whilst still
remaining true to the text. In addition, CALS submitted that s 184(2)(b) is capable
of a textual interpretation that affords the SAHRC the power to make binding
decisions.

[33] In support of its argument CALS submitted that in the process of the
interpretation of the SAHRC’s powers, the courts should adopt a reasonable
interpretation, which is consistent with international law as found by the
Constitutional Court in Law Society of South Africa and Others v President of the
Republic of South Africa and Others.9 Relying on S v Okah ,10 CALS submitted
that even if an interpretation was textually reasonable, it still had to be in
accordance with international law. CALS also referred to Sonke Gender Justice
NPC v President of the Republic of South Africa and O thers,11 where the
Constitutional Court emphasised the importance of considering international law
when interpreting the Bill of Rights, particularly its interpretative value in the
context of the independence of oversight bodies such as the Judicial Inspectorate
for Correctional Services.


9 Law Society of South Africa and Other s v President of the Republic of South Africa and Others [2018] ZACC
51; 2019 (3) BCLR 329 (CC); 2019 (3) SA 30 (CC) para 5.

51; 2019 (3) BCLR 329 (CC); 2019 (3) SA 30 (CC) para 5.
10 S v Okah [2018] ZACC 3; 2018 (4) BCLR 456 (CC); 2018 (1) SACR 492 (CC) para 38.
11 Sonke Gender Justice NPC v President of the Republic of South Africa and Others [2020] ZACC 26; 2021 (3)
BCLR 269 (CC) para 70.

18


[34] It criticised the textual approach to interpretation adopted by the high court
in interpreting s 13(3) of the SAHRC Act as flawed. In addition, it contended that
the judgment of Afriforum v South African Human Rights Commission and Others
(Afriforum),12 that Afriforum relied upon in the present matter, did not consider
the provisions of s 184(2) (b) of the Constitution. In that regard, so it was
submitted, had the high court considered the international approach to the powers
of institutions such as the SAHRC, when interpreting s 184(2)(b), it would have
come to a different conclusion. Counsel for CALS submitted that the wording in
s 184(2)(b) ‘to take steps to secure appropriate redress ’ must be given meaning
which is in line with Article 2 of the Principles relating to the Status of National
Institutions (The Paris Principles).

[35] Article 2 of the Paris Principles provides that ‘[National Human Rights
Institutions] shall be given as broad a mandate as possible, which shall be clearly
set forth in a constitutional or legislative text, specifying its composition and its
sphere of competence ’. CALS sought to draw parallels with the Economic
Freedom Fighters judgment, to substantiate its argument that the powers of the
SAHRC are binding and there fore reviewable, as envisaged in terms of s 33 of
the Constitution.

The Commission for Gender Equality’s submissions
[36] The Commission for Gender Equality’s submissions were essentially that
the high court erred in its finding that there was a hierarchy among the Chapter 9
institutions.

Afriforum’s submissions

12 Afriforum v South African Human Rights Commission and Others [2023] ZAGPJHC 807; 2023 (6) SA 188
(GJ).

19


[37] Afriforum has a different view to the SAHRC and the amici that support
the appeal. It submitted that the SAHRC does not have the power to issue binding
remedial directives. Neither the Constitution , nor the SAHRC Act accord it the
power to do so. It argued that the SAHRC may merely ‘take steps to secur e
appropriate redress ’. This clause in s 184(2)( b) makes the SAHRC’s powers
distinguishable from those of the PP. In addition, Afriforum submitted that the
SAHRC does not require the power to issue binding remedial directives in order
to effectively discharge its constitutional mandate. This position is consistent with
most human rights institutions internationally, which is that of a watchdog.

[38] Afriforum further contended that the PP is empowered by the Constitution
and the PP Act to ‘take appropriate remedial action.’ It accepted all the findings
by the high court, save the one that relates to the ranking of the Chapter 9
institutions in the Constitution. Last, Afriforum urged this Court to consider the
settled principles of interpretation set out in the jurisprudence of our courts in
interpreting s 184(2) of the Constitution read with s 13(3) of the SAHRC Act.13

Evaluation
[39] I will first deal with the interpretation of the provisions of s 184(2)(b) read
with s 13(3) of the SAHRC Act, which is the essence of the submissions argued
before us. In interpreting the provisions of s 184(2) (b), the SAHRC’s chief
mandate must be considered , which is the promotion of the Bill of Rights,
enshrined in Chapter 2 of the Constitution. It is crucial to consider the significant
role of the SAHRC when interpreting the provisions of s 184(2)(b) of the
Constitution read with s 13(3) of the SAHRC Act.


13 Capitec Bank Holdings Limited and Another v Coral Lagoon Investme nts 194 (Pty) Ltd and Others [2021]
ZASCA 99; [2021] 3 All SA 647 (SCA); 2022 (1) SA 100 (SCA) para 25.

20


[40] In addition, I have to consider whether the SAHRC is endowed with the
same powers as its sister institution, the PP, which is assigned remedial powers
by the Constitution. On that score, I also recognise that the SAHRC’s powers are
sourced from the Constitution, that is, to investigate and report on the observance
of human rights. Another relevant factor for consideration is what was stated by
the Constitutional Court in Fose v Minister of Safety and Security where it stated
that:
‘. . . an appropriate remedy must mean an effective remedy, for without effective remedies for
breach, the values underlying and the rights entrenched in the Constitution cannot properly be
upheld or enhanced.’14

[41] Last, I need to determine if the high court’s interpretation was correct in
finding that the constitutional powers of the SAHRC were only limited to taking
steps to secure appropriate redress. And, whether the SAHRC is only empowered
to provide cooperative contr ol to facilitate engagement, using advice and
persuasion to achieve its ends.

[42] The principles of interpretation find application in this matter . These
principles were settled in Natal Joint Municipal Pension Fund v Endumeni
Municipality (Endumeni).15 Endumeni reiterated that the process of interpretation
is a unitary and objective exercise that pays due regard to the text, context, and
purpose of the document or instrument being interpreted. 16 Equally trite, is the
general principle of statutory interpretation that the words used in a statute should
be understood in their normal grammatical sense, unless this would lead to an
absurdity. The Constitutional Court , in Cool Ideas 1186 CC v Hubbard and
Another,17 added to the general principles: First, that st atutes should be

14 Fose v Minister of Safety and Security 1997 (3) SA 786 (CC) para 69.
15 Natal Joint Municipal Pension Fund v Endumeni Municipality [2012] ZASCA 13; [2012] 2 All SA 262 (SCA);

2012 (4) SA 593 (SCA) (Endumeni).
16 Endumeni para 18.
17 Cool Ideas 1186 CC v Hubbard and Another [2014] ZACC 16; 2014 (4) SA 474 (CC); 2 014 (8) BCLR 869
(CC) para 28.

21


interpreted purposively. Second, the relevant statutory provision must be properly
contextualised. Last, that all statutes must be construed consistently with the
Constitution.

[43] In interpreting the provisions of s 184 , the aforementioned principles of
interpretation find application . The provisions of s 184(2)(a) empower the
SAHRC to investigate and report on the observance of human rights. This means
that it is endowed, not only with the role of a watchdog, but also has the power to
conduct research and education about human rights. The question which then
arises is whether s 184(2)(b), read holistically, accords it the powers similar to
those of the PP.

[44] In considering the language of s 184(2) (b), I find that the provision is
expressed in clear and direct language . The use of the words ‘to take steps to
secure’ give an unambiguous direction to the SAHRC to secure assistance for the
aggrieved person or persons. To obtain a legal remedy means that one must seek
recourse through appropriate judicial channels. The language used in s 184(2)(b)
is exclusive to the SAHRC only. It is different from the wording used in the
Constitution in relation to the powers of the PP, which directs the PP ‘to take
appropriate r emedial action’. The remedial powers of the PP are clearly and
directly outlined in the Constitution. The PP is expressly empowered to directly
take appropriate remedial action.18 Conversely, the wording of s 184 (2)(b) only
directs the SAHRC to take measures to secure redress. No reason has been
advanced by the SAHRC, CALS or the Commission for Gender Equality why the
drafters of the Constitution and the SAHRC Act did not use the exact wording or
words similar to those used for the PP’s remedial powers for the SAHRC.


18 Section 182(1)(c) of the Constitution.

22


[45] The ineluctable conclusion must be that the drafters of the Constitution
intended that the SAHRC would investigate and, if it is of the opinion that there
is substance in any complaint made to it, take steps to secur e redress. Section
184(2)(b) grants the SAHRC with additional authority to engage in litigation or
pursue other suitable options. These powers are complimentary to its powers to
investigate a complaint mero motu or at the instance of a complainant.

[46] Notably, s 116(3) of the Interim Constitution was expressed in nearly
identical language as s 184(2)(b) of the final Constitution. It provided that ‘in so
far as it is able to do so, assist the complainant and other persons adversely
affected thereby, secure redress ’. It went further by creating a condition that
‘where necessary 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 compl ainant to an appropriate forum ’. The sec tion clearly delineated the
Commission’s obligation and stipulated the condition under which it was
obligated to provide financial assistance . It can also n ot be implied that it
conferred any remedial powers to the SAHRC. Though couched in a different
form, the essence of the powers of the SAHRC, as expressed in the wording
thereof, did not change in the final Constitution. The heading to s 116(3) of the
Interim Constitution explicitly set out the competence of the SAHRC as ‘to
investigate any alleged v iolation of any person adversely affected thereby to
secure redress’.

[47] I now consider the interpretation of the provisions of s 13(3) of the SAHRC
Act. First, s 13(3)(a) provides the SAHRC with the powers to investigate claims
of human rights abuses on its own initiative or upon receipt of a complaint.
Second, in the event that it finds substance in any complaint it may proceed to
‘assist the complainant and other persons adversely affected thereby, to secure

‘assist the complainant and other persons adversely affected thereby, to secure
redress. . .’. Third, ‘where it is necessary for that purpose to do so, it may arrange

23


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. . .’. These powers are further extended by s 14 which provides
that the SAHRC can also resolve disputes through mediation, conciliation or
negotiation.

[48] Section 13(3)(a) requires the SAHRC to first conduct an investigation and,
after due investigation, to form an opinion that there is substance in any complaint
made to it. Thereafter, it must, in so far as it is able to do so, assist the complainant
and other persons adversely affected thereby, to secure redres s. This process
requires a prima facie finding by the SAHRC, after the investigation has been
concluded. The SAHRC is subsequently granted the authority to provide
assistance to the affected persons. It could be through mediation , negotiation or
litigation, by approaching a court of law or an appropriate tribunal. It will then be
upon the court of law or tribunal to make a binding finding on the evidence
presented by the SAHRC or the affected person to it. That is the only reasonable
and logical interpretation that can be accorded to the provisions of the section.

[49] The word ‘assist’ as used in the section, can be interpreted to mean that the
SAHRC acts in a supportive or enabling role in assisting the adversely affected
persons to seek redress . It does not itself make a violation order or exonerate a
person from an allegation of a violation of human rights. Once it has established
that there is substance to a violation complaint, it may assist the complainant to
seek redress or bring the proceedi ngs to a court in its own right. The SAHRC’s
expertise in human rights and powers of investigation accorded to it by the
SAHRC Act are effective in identifying and crystallising the issues upon which
it may approach the court or the relevant tribunal. Section 13(3) also gives the

it may approach the court or the relevant tribunal. Section 13(3) also gives the
SAHRC powers to engage with the parties through mediation or negotiation. This
is reinforced by the wording of s 13(3)(a) which states, ‘where it is necessary for

24


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…’. This
indicates that the necessary financial support will be organised and made
available as required . The SAHRC has to exercise a discretion in determining
which matters to take to court, either in its name or in the name of the affected
person or persons.

[50] The language used in s 13(3)(a) and (b) does not intimate that the drafters
of the legislation intended that the SAHRC issue binding directives. It would be
incongruous for the SAHRC to possess authority to implement a remedial action
‘on the substance of a complaint’ as it is not a finding per se or a decision on
whether or not a violation of human rights has occurred, but an opinion. At the
same time , I must emphasise that the SAHRC is not precluded from making
recommendations following what it has established.

[51] I find that it would be more appropriate to interpret the powers granted to
the Commission in terms of s 13 in a conjunctive rather than a disjunctive manner.
The provisions of s 13(3) should be read harmoniously with all the provisions of
the SAHRC Act and the Constitution, including s 14 the SAHRC Act. Section 14
of the SAHRC Act which provides that the SAHRC may, by mediation,
conciliation or negotiation endeavour to resolve any dispute or to rectify any act
or omission, emanating from or constituting a violation of or threat to any human
right, strongly suggest s that the SAHRC has per suasive rather than coercive
powers.

[52] Contextually, I draw comparison of the provisions of s 13(3) of the SAHRC
Act, with those of s 116(3) of the Interim Constitution . I point out that s 116(3)
of the Interim Constitution had a simila r provision, though couched differently,
which provided that ‘if, after due investigation, the SAHRC is of the opinion that

25


there is substance in any complaint made to it, it shall, in so far as it is able to do
so, assist the complainant and other persons adversely affected thereby to secure
redress’. Though the content of this provision was not similarly retained in s 184
of the Constitution, it was retained in s 13(3) to preserve the status quo, albeit
different wording was used.

[53] Afriforum correctly pointed out that the repealed Human Rights
Commission Act also made no provision for the SAHRC ‘to secure redress’ in
the sense of directly providing redress. In fact, s 15(1) of the Human Rights
Commission Act simply empowered the SAHRC, pursuant to an investigation,
‘to make known to any person any finding, point of view or recommendation in
respect of a matter investigated by it’. This confirmed that the SAHRC’s role was
only limited to giving advice or making a recommendation. However, I draw
attention to the provisions of s 13(3)(b) of the SAHRC Act, which extended the
powers of the SAHRC ‘to bring proceedings in a competent court or tribunal in
its own name or on behalf of a person or a group or class of persons’.

[54] I acknowledge that t he Chapter 9 institutions are anchors of our
constitutional democracy and that they are independent and must exercise their
powers and perform their functions without fear, favour or prejudice. No person
or organ of state may interfere with the exercise of their functions. The SAHRC
is regulated by the Constitution and the SAHRC Act. The SAHRC was
established in terms of s 184(1) (a) of the Constitution, with the mandate to
promote, protect and monitor the realisation of human rights. In terms of s
184(1)(b), the SAHRC is obliged to promote the development and attainment of
human rights. Section 184(1)(c) mandates the SAHRC to monitor and assess the
observance of human rights in South Africa . Notwithstanding its mandate , its
powers can only be sourced from the Constitution and the empowering
legislation.

26


[55] Though the Chapter 9 institutions established in terms of s 181(1) share a
common objective, the strengthening of constitutional democracy in the Republic
of South Africa can happen in various ways. The PP’s mandate, as confirmed by
the Constitutional Court in Economic Freedom Fighters, described the office of
the PP as follows:
‘The Public Protector is thus one of the most invaluable constitutional gifts to our nation in the
fight against corruption, unlawful enrichment, prejudice and impropriety in state affairs, and
for the betterment of good governance. The tentacles of povert y run far, wide and deep in our
nation. Litigation is prohibitively expensive and therefore not an easily exercisable
constitutional option for an average citizen. For this reason, the fathers and mothers of our
Constitution conceived of a way to give even to the poor and marginalised a voice, and teeth
that would bite corruption and abuse excruciatingly. And that is the Public Protector. She is the
embodiment of a biblical David, that the public is, who fights the most powerful and very well-
resourced Goliath, that impropriety and corruption by government officials are. The Public
Protector is one of the true crusaders and champions of anti -corruption and clean
governance.’19
The Constitutional Court went on further and stated that:
‘[The Public Protector’s powers] are indeed very wide powers that leave no lever of
government power above scrutiny, coincidental embarrassment’ and censure. This is a
necessary service because state resources belong to the public, as does state power. The
repositories of these resources and power are to use them on behalf and for the benefit of the
public. When this is suspected or known not to be so, then the public deserves protection and
that protection has been constitutionally entrusted to the Public Protector. This finds support in
what this court said in the Certification case:

what this court said in the Certification case:
“[M]embers of the public aggrieved by the conduct of government officials should be able to
lodge complaints with the Public Protector, who will investigate them and take appropriate
remedial action”.’20

[56] The aforementioned sentiments expressed by the Constitutional Court, in
Economic Freedom Fighters judgment, resonate with the mandate in s 181 to
Chapter 9 institutions to strengthen constitutional democracy. Economic

19 Economic Freedom Fighters fn 6 para 52.
20 Economic Freedom Fighters fn 6 para 53.

27


Freedom Fighters highlights the source and extent of the overarching powers
granted to the PP by the Constitution. Conversely, the language of s 184 of the
Constitution and s 13 of the SAHRC Act, does not give remedial powers to the
SAHRC. It can only ‘take steps to secure redress’ any violation of human rights.
Instructively, the wording of s 184(2)( b) does not say that the SAHRC must
provide appropriate redress, it states that it has to ‘take steps to secure’
appropriate redress.

[57] In reply to the arguments presented before us, counsel for the SAHRC
submitted that the SAHRC is a quasi-judicial body. For this proposition, it relied
on s 15 of the SAHRC Act, which regulates its processes from the
commencement of the investigation in terms of s 13(3). Section 15 empowers the
SAHRC to administer oaths or affirmations and question individuals under oath
during investigations. Furthermore, it provides that any person appearing before
it should be competent and compellable to answer all the questions connected
with the matter under investigation and the production of documents or articles
in his or her possession.

[58] Section 15 provides the SAHRC with investigatory powers for purposes of
exercising the s 13 powers. Section 15(3) o f the SAHRC Act further accords
protection to a witness who may incriminate himself or herself, by making such
evidence inadmissible in subsequent criminal proceedings. Section 15(4) accords
persons appearing before the SAHRC the right to be assisted by a legal
representative and the audi alteram partem rule applies when it conducts its
investigations. In order to carry out its investigations, s 16 grants the SAHRC the
power to enter and search premises, as well as attach and remove articles. These
powers do not confer to the SAHRC the status of a quasi -judicial body. They
were merely enacted to facilitate the taking of evidence. The powers of the
SAHRC are similar to those of a commission of enquiry, which also does not

28


have binding powers. In that regard I find that s 13(3) does not clothe the SAHRC
with adjudicative powers. Had it been the intention of the drafters of the SAHRC
Act to imbue it with adjudicative powers, it would have done so through a
provision in the legislation.

[59] I am fully aware of the resource limitation s that the SAHRC faces. The
lack of financial resources does not constitute a valid justifiable reason to clothe
it with binding remedial powers. This is not the end of the road for the SAHRC
as it can approach law enforcement organs, such as the South African Police
Services (SAPS), the Equality Court, and other organs of state for assistance. If
the state organs fail to render assistance, the SAHRC can approach the courts of
law for assistance. This right is acquired from the provision of s 181(3) of the
Constitution which provides that other organs of state, through legislative and
other measures, must assist and protect these institutions to ensure the
independence, impartiality, dignity and effectiveness of these institutions.

[60] We were referred to Afriforum where the court correctly held that the
SAHRC does not have the power to make binding decisions on the basis of the
provisions of s 13(3) of the SAHRC Act. It further held that s 13(3) only
empowers the SAHRC, pursuant to an investigation, to form an ‘opinion that
there is substance in any complaint’ and not to make any definitive finding in that
regard.21 And that, if the SAHRC needs to enforce its directives, it has to approach
a court of law, competent tribunal, or proceed with mediation or negotiations. The
criticism of Afriforum by CALS that it did not deal with the interpretation of s
184(2)(b) is misplaced because the high court interpreted the provisions of s 13(3)
of the SAHRC Act which give s effect to the provisions of s 184 of the
Constitution.


21 Afriforum fn 13 paras 16-20.

29


[61] The SAHRC in support of its argument also relied on this Court’s decision
in South African Broadcasting Corporation Soc Ltd and Others v Democratic
Alliance and Others where it was held that ‘[o]ur constitutional compact demands
that remedial action taken by [Chapter 9 Institutions] should not be ignored…’.22
First, I point out that, that was said in the context of the powers of the PP. In that
judgment this Court did not specifically deal with the powers of the SAHRC.
Last, the powers in s 13 of the SAHRC Act directly originate from ss 184(1), (2)
and (3) of the Constitution.

[62] The SAHRC has a responsibility to raise awareness about human rights
through education and research. It has an extensive reach in terms of monitoring
the observance of human rights by organs of state and private persons . It serves
as a guardian and protector of our democracy . The primary objective is to
establish a society that acknowledges and upholds human rights.

[63] The SAHRC’s recommendations need to be accorded respect as an
institution created to strengthen our constitutional democracy . This is aptly
emphasised in s 18(4) of the SAHRC Act as follows:
‘If the Commission makes any finding or recommendation in respect of a matter investigated
by it known to the head of the organisation or institution or the executive authority of any
national or provincial department concerned, the head of the organisation or institution or the
executive authority of any national or provincial department concerned must within 60 days
after becoming aware of such finding or recommendation respond in writing to the
Commission, indicating whether his or her organisation, institutio n or department intends
taking any steps to give effect to such finding or recommendation, if any such steps are
required.’
This means that the SAHRC should not be rendered the proverbial toothless dog.
Its recommendations should be given serious consideration and be implemented.

Its recommendations should be given serious consideration and be implemented.


22 South African Broadcasting Corporation Soc Ltd and Others v Democratic Alliance and Others [2015] ZASCA
156; [2015] 4 All SA 719 (SCA); 2016 (2) SA 522 (SCA) para 53.

30


[64] Having considered the provisions of the Constitution and the SAHRC Act,
I cannot find a valid basis to hold that the SAHRC is empowered to issue binding
directives. On the facts of this matter , the SAHRC was at liberty to assist the
occupiers to or directly approach a court of law, or an appropriate tribunal or
resolve the dispute through negotiation and mediation.

[65] Economic Freedom Fighters , relied upon by the SAHRC, has to be
considered against the backdrop that it specifically addressed the powers of the
PP. I would like to underscore that albeit with specific reference to the PP, t he
Constitutional Court in Economic Freedom Fighters, described the purpose of
Chapter 9 institutions as follows:
‘Like other chapter Nine institutions, the office of the Public Protector was created to
“strengthen constitutional democracy in the Republic ”. To achieve this crucial objective, it is
required to be independent and subject only to the Constitution and the law. It is demanded of
it, as is the case with other sister institutions, to be impartial and to exercise the powers and
functions vested in it without fear, favour or prejudice. I hasten to say that this would not
ordinarily be required of an institution whose powers or decisions are by constitutional design
always supposed to be ineffectual. Whether it is impartial or not would be irrelevant if the
implementation of the decisions it takes is at the mercy of those against whom they are made.
It is also doubtful whether the fairly handsome budget, offices and staff all over the country
and the time and energy expended on investigations, findings a nd remedial actions taken,
would ever make any sense if the Public Protector’s powers , or decisions were meant to be
inconsequential. The constitutional safeguards in section 181 would also be meaningless if
institutions purportedly established to strengthen our constitutional democracy lacked even the
remotest possibility to do so.’23

remotest possibility to do so.’23

[66] The SAHRC serves as a means to access justice, as well as to promote and
protect human rights . In this regard i t can also be regarded as an invaluable
constitutional gift to our nation.24 The SAHRC serves as a facilitator in aiding the
aggrieved part ies rather than an enforcer of the decision . This reasoning is

23 Economic Freedom Fighters fn 6 para 49.
24 Economic Freedom Fighters fn 6 para 52.

31


underpinned by the wording of s 18(3) of the SAHRC Act which empowers the
SAHRC ‘to make known to any person, the head of the organisation or institution,
or the executive authority of any national or provincial department, any findings,
point of view or recommendation in respect of a matter investigated by it. It is
interesting to note that the wording in s 18(3) of the SAHRC is identical to that
used in s 15(4) of the SAHRC Act.

[67] The aforesaid reasoning is further supported by the wording of s 18(4) of
the SAHRC Act. This provision indicates th at the party who has been made
‘aware of the finding’, should indicate whether it intends to take any steps to give
effect to the finding or recommendation by the SAHRC. In the event that the party
elects not to give effect to the recommendation, it has to give notice to the
SAHRC. This gives the SAHRC the opportunity to act in terms of s184(2)(b) ‘to
take steps to secure appropriate redress’, where human rights have been violated.
The drafters of the provisions of 18(4) of the SAHRC Act, in my view, did not
provide that the party against whom the finding is made, with the option to elect
whether his or her organisation or institution intends to implement the finding or
recommendation, as submitted by Afriforum. My interpretation of the provision
is that, if the organisation is dissatisfied with the result, it should communicate its
concerns to the SAHRC.

[68] The reasoning by the high court that the hierarchy of the Chapter 9
institutions differentiates their powers cannot be sustained, as the various
Chapter 9 institutions have different powers and functions. The Auditor-General
is also appointed in more or less the same way as the PP. All these institutions
support democracy, irrespective of how they are appointed or removed from
office. The ultimate consideration is the power awarded to each Chapter 9
institution. The fact that the PP is listed first in Chapter 9 institutions of the

institution. The fact that the PP is listed first in Chapter 9 institutions of the
Constitution is of no significance. It does not elevate the PP above the rest of the

32


institutions. The high court incorrectly attached undue significance to the listing
of the Chapter 9 institutions.

[69] I have also considered CALS’ submissions that this Court should interpret
s 184(2)(b) in a manner that is reasonably consistent with international law as
provided in s 233 of the Constitution .25 Section 233 requires the courts, when
interpreting any legislation to prefer any reasonable interpretation that aligns with
international law. In S v Makwanyane and Another , on the constitutional
injunction requiring the application of international law, Mokgoro J stated that:
‘[The Constitution] seems to acknowledge the paucity of home -grown judicial precedent
upholding human rights, which is not surprising considering the repressive nature of the past
legal order. It requires courts to proceed to public international law and f oreign case law for
guidance in constitutional interpretation, thereby promoting the ideal and intentionally
accepted values in the cultivation of a human rights jurisprudence for South Africa.’26

[70] I find that the interpretation which I accord to s 184(2)(b) of the
Constitution and s 13(3) of the SAHRC Act, attaches a reasonable meaning to the
text, which is also in line with international norms and standards. I therefore find
the argument advanced by CALS not sustainable.

[71] CALS correctly submitted that internationally , there are no treaties or
conventions which explicitly advocate for the establishment of national human
rights institutions with binding powers. Their terms are in the form of soft law,
which carries persuasive value as inter pretative tools to the interpretation of s
184(2)(b). This includes amongst other things, the Paris Princip les, which
constitute soft law. The Paris Principles in Article 2 require that such institutions
be given as broad a mandate as possible, clearly set forth in constitutional or

25 Section 233 of the Constitution provides: ‘When interpreting any legislation, every court mus t prefer any
reasonable interpretation of the legislation that is consistent with international law over any alternative
interpretation that is inconsistent with international law.
26 S v Makwanyane and Another 1995 (3) SA 391 (CC) para 304.

33


legislative texts that specify the institutions ’ composition and sphere of
competence. In this case , the text of s 184(2)(b) and s 13 expressly specify the
sphere of compete nce of the SAHRC. I cannot infer any implied conferral of
binding powers in the Constitution and the SAHRC Act. As broad as they are,
they do not give remedial powers to the SAHRC.

[72] I do not find the additional textual interpretation provided by CALS to be
helpful. It relied on the judgment in Jawara v The Gambia,27 on the interpretation
of s 184(2)(b), which would align with Articles 7 and 26 of the African Charter
on Human and People’s Rights .28 Those articles are supportive of human rights
institutions in providing effective remedies through investigations, where human
rights have been violated . Sometimes they issue binding directives that require
the complainants to redress human rights violation.

Conclusion
[73] In conclusion, although Chapter 9 institutions were established to bolster
our constitutional democracy, it does not necessarily imply that they all possess
binding remedial powers. They fulfil distinct mandates and have effective ways
of fulfilling the ir purpose, as provided by the Constitution . Accordingly, I find
that the SAHRC has no powers to make binding directives. It must therefore
follow that the high court's order must be confirmed.

[74] In the result, the following order is made:

Order
The appeal is dismissed with no order as to costs.


27 Sir Dawda K Jawara v The Gambia (2000) (communication 147/95 and 149/96) AHRLR 107 (ACHPR 2000).
28 Adopted 1 June 1981. Date of Entry 21 October 1986.

34




Y T MBATHA
JUDGE OF APPEAL

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Appearances:

For the appellant: B D Lekokotla and L Phasha
Instructed by: South African Human Rights
Commission, Bloemfontein

For first amicus curiae: M J Engelbrecht SC and A Molver
Instructed by: AfriForum NPC,
Hurter Spies Inc, Pretoria
Hendre Conradie Inc, Bloemfontein

For second amicus curiae: J Bhima
Instructed by: Centre for Applied Legal Studies
Webbers Attorneys, Bloemfontein

For third amicus curiae: B Dhladhla
Instructed by: Edward Nathan Sonnenberg/
Commission for Gender Equality
Webbers Attorneys, Bloemfontein.