SAHRC notes the Supreme Court of Appeal’s judgment on its powers

20 August 2024

The South African Human Rights Commission (SAHRC/the Commission) has taken note of the recent judgment of the Supreme Court of Appeal (SCA) concerning the binding nature of its recommendations in the matter of SAHRC vs Agro Data CC and FC Boshoff.

This case stemmed from a complaint by Mr. Tubatsi Mosotho and other occupiers of the De Doorn Hock Farm. They lodged a complaint stating that Mr. Francois Gerhardus Boshoff unilaterally imposed restrictions on their use of water on the farm, thereby depriving them of access to the borehole water on the farm.

The SAHRC found that Agro Data CC and Mr. Boshoff violated the occupiers' rights to access to water as specified by section 6(2)(e) of the Extension of Security of Tenure Act 62 of 1997 (ESTA) and section 27(1)(b) of the Constitution. The SAHRC directed Agro Data CC to restore water within 7 days. The Commission had issued further directions for the parties to within 30 days engage in good faith discussions about the management of water on the farm to ensure equitable sharing of this scarce resource.

Following the respondents' failure to adhere to the directives, the SAHRC sought a declaration from the High Court. The respondents argued that the Commission’s directives are not binding, and the court agreed with their arguments and ruled in favour of the respondents. The Court furthermore required the Commission to seek enforcement of its findings and recommendations through the appeal court. The SAHRC then appealed the decision to the SCA, seeking clarification on the interpretation of its mandate and the implications of the High Court’s decision. Notably, the SCA clarified that the differentiation of powers among Chapter 9 institutions based on hierarchy cannot be upheld and emphasised that the SAHRC's recommendations should be respected, given serious consideration and implemented.

SAHRC Chair Chris Nissen, “This case is about access to water that Mr. Tubatsi Mosotho and other occupiers of the De Doorn Hock Farm are seeking. The Constitution has given the mandate to the SAHRC to promote, protect and monitor the observance of human rights. People who work on farms continue to face many human rights challenges such as evictions, deprivation of basic services and continue to be marginalised. The Commission’s role is to be the protector of the vulnerable and the marginalised.”

Commissioners are carefully studying the judgment to determine the Commission’s next steps, including potential recourse to the Constitutional Court to ensure the effective implementation of its recommendations in line with its constitutional mandate.

Issued by Chris Nissen on behalf of the Office of the Chairperson, 20 August 2024