The Constitutional Court’s recent ruling that the South African Human Rights Commission cannot issue binding directives – unlike the Public Protector – has confused many who don’t understand that different Chapter 9 institutions have distinct constitutional powers tailored to their specific mandates, highlighting broader challenges around ordinary South Africans’ access to human rights remedies, writes Pierre de Vos.
The judgment of the Constitutional Court handed down last week, in which it ruled that the South African Human Rights Commission (SAHRC) is not empowered to issue binding directives, came as no surprise.
But perhaps because the Constitutional Court had previously held that the remedial action taken by the Public Protector would often be binding, the judgment nevertheless sparked significant public debate.
Many members of the public, unfamiliar with the text of the Constitution and the jurisprudence of the Constitutional Court, seemed to be baffled that the court could have ruled in the Nkandla case that the Public Protector’s remedial action was binding, while ruling last week that the directives of the SAHRC (another Chapter 9 institution) were not binding.
Misplaced comparison
As the Constitutional Court explained in its recent judgment, the comparison was misplaced as Chapter 9 institutions are not identical. Each Chapter 9 body is entrusted with powers tailored to its specific mandate.
So while Section 182(1) of the Constitution empowers the Public Protector to investigate and report on improper conduct in state affairs and “take appropriate remedial” action, Section 184(2) empowers the SAHRC to investigate and report on the observance of human rights, and “to take steps to secure appropriate redress where human rights have been violated”.
The court held in the Nkandla judgment that to “take remedial action” conferred upon the Public Protector a unique competence capable of, at times, producing enforceable legal obligations (binding remedial action).
But in the recent SAHRC judgment, the court pointed out that the Constitution did not confer similar powers on the SAHRC.
The body could take steps to secure redress for people who approached the commission for help by litigating the matter on behalf of those complainants before a court. Such a court would then be able to issue binding orders against a person or body who had breached the rights of complainants represented by the SAHRC.
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In the judgment penned by acting Justice Caroline Nicholls, the Constitutional Court rejected the argument that without binding powers the SAHRC would be toothless.
The Court pointed out that the Constitution and the SAHRC Act conferred extensive powers on the commission, “including the exercise of extensive investigative authority, the support of litigation, the shaping of the conduct of state officials, the informing of public debate and the exertion of normative pressure on organs of state and private actors alike”.
‘Potent and indispensable guardian’
“Properly understood, the SAHRC’s strength lies precisely in its capacity to act in ways that courts cannot. Even without binding remedial competence, it remains a potent and indispensable guardian of human rights within our constitutional scheme.”
A similar point was made almost 20 years ago in the report of an ad hoc committee of the National Assembly (chaired by the late Professor Kader Asmal) on the Review of Chapter 9 and Associated Institutions. (I served as a legal advisor to Prof Asmal and the ad hoc committee at the time, but even that did not turn me into a whiskey lover.) The report of the ad hoc committee pointed out at the time that the Human Rights Commission “is not a court of law and cannot make binding decisions on complaints lodged with it”, but contended that it can:
“Investigate individual complaints or systemic infringements of human rights, make recommendations, and ‘name and shame’ the parties found to be violating the rights of others. It can also mediate disputes and take cases to court in either its own name or on behalf of an aggrieved party. When investigating complaints, the commission has considerable powers to gather information, including the power (within the limits of the law) to subpoena witnesses, to enter and search premises, and to attach articles of relevance to its investigation. These powers provide the commission with all the legal tools it requires to pursue its investigations and to address more systemic infringements of human rights.”
Of course, nothing prevents Parliament from amending the relevant legislation to extend the powers of the SAHRC by empowering it to issue binding directives – as Parliament did a while back when it amended the Auditor-General Act to make certain of its directives legally binding.
Whether that would be wise is another matter.
As the chaotic term of now impeached Public Protector Busisiwe Mkhwebane illustrated, there is some risk that granting binding powers to an investigative body headed by one or more people appointed by the National Assembly would be abused to further party political or factional political interests.
READ | Disappointed SAHRC: We’re not a ‘glorified NGO’ – fight for binding powers goes to Parly
The SAHRC judgment does serve as a reminder of the now seemingly forgotten recommendations of the ad hoc committee into Chapter 9 institutions headed by Prof Asmal.
Of these, the most important was the proposal to establish an umbrella human rights body to incorporate the National Youth Commission, the Commission for the Promotion and Protection of Cultural, Religious and Linguistic Communities (together with the Pan South African Language Board) and the Commission for Gender Equality, together with the Human Rights Commission.
As the ad hoc committee pointed out at the time, with the exception of the SAHRC, none of the bodies mentioned above were operating effectively or serving their intended purpose.
Many of these bodies had been wracked by infighting and had been weakened by the tendency to treat them as vehicles for dispensing patronage to loyal cadres and their hangers-on.
Although the ad hoc committee report couched its criticism in polite language, individual members of the committee were genuinely shocked by the amount of money some of these bodies burnt through without showing much for it.
Lack of resources
The idea was to create a well-funded body with the necessary legal power to promote human rights and address systemic violations of rights, and to operate as an advice centre for the millions of people in South Africa who would otherwise not have been able to challenge a breach of their rights.
It was envisaged that the new body would help people whose rights have been infringed to challenge these abuses and to litigate on their behalf if required.
At the moment, very few South Africans have access to the kind of resources required to pay competent lawyers to challenge the infringement of their human rights on their behalf before the courts.
While some civil society organisations do sometimes take up human rights cases on behalf of vulnerable and marginalised individuals or communities, and some lawyers sometimes help for free or at reduced rates, the stark reality is that it is impossible for many South Africans whose rights are infringed upon to challenge this in court.
This is primarily because they do not have the resources to do so and do not know who to turn to for help, and because when they do turn to bodies like the SAHRC, the Commission for Gender Equality or the commission with the long name, they discover that these bodies are under-resourced, over-bureaucratised, or (in some cases) more interested in factional politics than in helping the victims of human rights abuses.
This problem is not easy to fix. Obviously, the implementation of the recommendations of the Asmal report will not, on its own, fix the problem. But it would be a start.
- Professor Pierre de Vos is with the law faculty at UCT.
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