- The court will consider whether the South African Human Rights Commission can issue binding directives after finding human rights have been violated.
- The case arises from a water access dispute on a Mpumalanga farm involving long-term occupiers and farm management.
- The hearing is scheduled for Tuesday, 25 November 2025, and the outcome could reshape the powers of the Commission and other Chapter 9 institutions.
A significant legal battle is unfolding in the Constitutional Court. At stake is whether the South African Human Rights Commission (SAHRC) can issue binding directives after finding that human rights have been violated.
The case arises from a dispute over water access on a farm in Mpumalanga. On 29 May 2018, the SAHRC received a complaint on behalf of Tubatsi Mosotho, “a long-term farm occupier residing on the respondent’s farm since 1965,” alleging that Francois Gerhardus Boshoff, the farm manager, had “unilaterally imposed charges for water, diverted the stream used for livestock, and denied access to the borehole, all without consultation.”
The SAHRC found that these actions violated the occupiers’ rights to dignity, access to water and secure tenure, as protected by the Constitution and the Extension of Security of Tenure Act.
The Commission ordered the respondents to restore the borehole water supply to the occupiers, but they failed to comply. The High Court declined to declare the non-compliance unlawful, holding that the directive “has no legal effect nor is it binding,” but did endorse the SAHRC’s steps to facilitate engagement and information-sharing.
The Supreme Court of Appeal then found that the Commission lacked the authority to issue binding directives. The Constitutional Court must now decide whether, as the Commission argues, its directives “cannot be ignored on a whim, with no consequences against those in respect of whom the SAHRC has made a finding of human rights violation.”
The matter is scheduled to be heard by the Constitutional Court on Tuesday, 25 November 2025.
Commission says its directives must be respected
The SAHRC contends that its power to “take steps to secure appropriate redress” should be interpreted broadly. The Commission claims that, without binding powers, its role would be reduced to “symbolic recommendations, undermining its constitutional promise to provide accessible, non-judicial remedies for rights violations.” It draws on the Nkandla case, where the Constitutional Court held that the Public Protector’s remedial actions are binding, and argues that the same logic should apply to the SAHRC.
In its heads of argument, the Commission submits that its directives “cannot be ignored on a whim, with no consequences against those in respect of whom the SAHRC has made a finding of human rights violation.” It points out that “the constitutional promise of accessible, non-judicial redress for human rights violations collapses” if its directives can simply be disregarded.
The Commission relies on the Constitutional Court’s Nkandla judgment, which stated: “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 licence to self-help.”
The Centre for Applied Legal Studies (CALS), intervening as amicus curiae, supports the Commission’s position and has argued that international law and the Constitution require effective, accessible remedies for rights violations.
CALS contends that allowing the Commission’s directives to be ignored would undermine both the purpose of the Commission and South Africa’s obligations under international law.
Respondents and intervening parties reject the binding power
AfriForum, as an amicus curiae, submitted that “neither the Constitution nor the Commission’s Act afforded the Commission the power to issue binding remedial directives.” AfriForum emphasised that the Commission’s role is “procedural and facilitative,” not adjudicative, and that “the phrase ‘take steps to secure appropriate redress’ does not empower the Commission to provide redress directly.” The SCA agreed, holding that “the Commission’s findings are preliminary opinions, not conclusive rulings.”
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