‘HRC should recommend, not order’

Henry

The Human Rights Commission (HRC) can make recommendations but not orders, AfriForum argued in the highest court of appeal in Bloemfontein on Tuesday in a case concerning the powers and competences of the commission.

The civil rights organization acts as a friend of the court in a case between the agricultural company AgroData and the HRC.

The HRC argues in this case that its recommendations are binding and have the same legal effect as a court ruling. However, AfriForum believes that the commission’s recommendations should only be considered binding if they are enforced by a court.

Louis Boshoff, campaign officer at AfriForum, says this argument is based on article 184(2)(b) of the Constitution, according to which the HRC may take steps “in order to ensure appropriate restoration where human rights have been violated”.

“However, the Constitution does not allow the HRC to issue binding directives,” says Boshoff.

The relevant case follows after the HRC received a complaint in May 2018 from residents of the farm De Doorn Hoek in Mpumalanga after the owners of the land, AgroData, allegedly placed restrictions on the residents’ access to borehole water in 2016.

Before the HRC could announce its findings, AgroData and the residents reached a settlement. However, the HRC argued that its findings and directives in the case must still be followed and that the parties’ agreed settlement does not offer a sufficient solution.

The commission later turned to the Mbombela High Court in an attempt to have the directives enforced. However, this court dismissed the commission’s application in March 2022 and ruled that, although the HRC can make recommendations, it could not prove that all directives issued by the HRC are binding.

This is when the commission approached the Court of Appeal.

Boshoff now says it would be disastrous if all the HRC’s recommendations “some of which are outrageous” became binding.

“The high incidence of abuse of power by state institutions should make us more vigilant about who commands what power,” says Boshoff.

Judgment is reserved.