Judgment reserved in matter about powers of SAHRC

AfriForum’s legal team presented arguments in the Constitutional Court today and clarified ambiguities regarding the limited nature of the South African Human Rights Commission’s (SAHRC) powers and jurisdiction. Judgment was reserved.

The SAHRC argues in this case that its recommendations are binding and have the same legal effect as, for example, a court ruling. AfriForum, however, holds the position that the SAHRC, in every case that the commission investigates, should rather achieve cooperative action among the parties involved.

Furthermore, the commission’s recommendations should only be considered binding when enforced by a court. This argument is based on section 184(2)(b) of the Constitution, which states that the HRC may take steps “to ensure appropriate redress where human rights have been violated.” However, the Constitution does not allow the HRC to issue binding directives.

The civil rights organisation has been granted amicus curiae status in a case between the SAHRC and AgroData. The SAHRC is appealing a ruling by the Supreme Court of Appeal which confirmed that findings of the commission are only enforceable when confirmed by a court order. According to AfriForum, this case will set an important precedent regarding future actions by the SAHRC.

This case arises from a finding by the SAHRC that land occupiers on the farm De Doorn Hoek should be given free access to borehole water. The SAHRC argued in the Mpumalanga High Court in Mbombela (Nelspruit) that their finding was enforceable, but the court ruled in favour of AgroData (the landowner) that the finding was not enforceable. The SAHRC then turned to the Supreme Court of Appeal to overturn the ruling. AfriForum also acted as amicus curiae in the Supreme Court of Appeal and AgroData did not oppose. The Supreme Court of Appeal ruled in favour of AgroData and relied heavily on the arguments presented by AfriForum’s legal team. However, the SAHRC then turned to the Constitutional Court to challenge the ruling.

According to Louis Boshoff, campaign officer at AfriForum, the organisation is determined to defend the constitutional order. “Our legal team has clearly stated the case and based it on several previous rulings of the Constitutional Court. The constitution simply does not grant the SAHRC the power to set out commands without a court order,” explains Boshoff.

The SAHRC’s findings have often been plagued by allegations of political and racial bias over the past two decades, and AfriForum believes this shows how important it is to ensure that the commission does not arrogate more powers to itself.

Judgment was reserved.