The question whether Human Rights Commission directives should be binding, yesterday served before the Supreme Court of Appeal.
This was during an appeal brought by the South African Human Rights Commission (SAHRC), in which it argued that its directives need to be legally binding under certain circumstances so that it could secure appropriate redress in cases of human rights violations.
The main question the court was asked to consider is whether the directives issued by the SAHRC are legally binding.
The Centre for Applied Legal Studies (Cals) meanwhile intervened in the matter as a friend of the court. This was to present international law on the nature of recommendations by national human rights bodies.
It said the matter has important implications for the effectiveness of Chapter Nine institutions.
The appeal was brought against Agro Data and a Mr F G Boshoff. The Commission investigated a complaint that Agro Data and Boshoff had cut off community access to a borehole on their land, thus limiting their right of access to sufficient water.
The commission directed the respondents to restore the supply of water and engage with the people living on the land.
When the respondents failed to comply with the directives, the commission approached the Mpumalanga High Court in Mbombela. It asked the court to declare not only that these particular directives should be enforced, but that all directives issued by the commission are binding.
The court found that a case had not been made to order that all directives by the Human Rights Commission are binding. It further ordered that the directive to restore the water supply had no legal effect.
The commission has subsequently taken the matter on appeal.
Cals, in joining the fray, said it wanted to assist the court in determining this important question by presenting regional and international law that guide states in establishing national human rights institutions.
It submitted that the SAHRC is an avenue for vulnerable and marginalised communities to access remedies when their rights are violated. It is therefore important that the recommendations of the commission have binding legal effect in appropriate circumstances.
“The South African Human Rights Commission plays an essential role as a human rights oversight body,” Busisiwe Kamolane-Kgadima from Cals said.
It provides a platform for communities to enforce their rights outside of a court. In order for the commission to fulfil its constitutional mandate, it’s important for its directives to be binding under certain circumstances, she argued.
Jatheen Bhima, counsel for Cals, told the court that the core issue in this appeal is the interpretation of the appellant’s powers under the Constitution.
“That task comes down to the interpretation of one seemingly simple sentence – ‘to take steps to secure appropriate redress where human rights have been violated’.
“But this simple sentence is a pandora’s box of existential crisis for the appellant. Without knowing what steps it may take to secure appropriate redress, a key institution within our democracy will not know who it is,” Bhima argued.
Traditionally, the right of access to remedies has been viewed solely through the prism of courts. This may also be tied to the right to access courts under the Constitution being interpreted as the sole means of accessing justice, she said.
But access to justice through the provision of “effective” and “appropriate” remedies moves beyond only formal court systems. For instance, tribunals and other forums may be empowered to provide equitable relief for human rights violations and abuses.
Bhima argued that the Constitution recognises this by making provision for tribunals and related forums. “Such a forum must include the SAHRC, which is both impartial and independent ... ”
The question which the court is faced with in this matter is a significant one for the country, the rule of law, and the identity of the SAHRC, she said.
“If the goal is to eradicate all injustices of the past and provide substantive redress to all victims of human rights violations and all forms of injustices of the past, surely, the institutions which have been vested with the power of supporting our democracy ought to have sufficient power to protect and provide justice for victims of human rights violations,” she said.
Judgment was reserved.
Pretoria News