By Carl Meyer
When the South African Human Rights Commission investigates a complaint and issues findings, must the party against whom those findings are made comply? Many assume so. On 22 April 2026, the Constitutional Court settled the question in South African Human Rights Commission v Agro Data CC and Another [1]. As per Nicholls AJ, the court unanimously held that the SAHRC’s findings take the form of recommendations only. They are not legally enforceable, and a party who refuses to comply cannot be compelled to do so by enforcement proceedings alone – the underlying dispute must be litigated afresh on its merits.
Hurter Spies Incorporated acted on behalf of AfriForum NPC, admitted as the second amicus curiae.
The issues before the Court
Section 184(2)(b) of the Constitution empowers the SAHRC “to take steps to secure appropriate redress where human rights have been violated.” The question was whether this provision, read with section 13(3) of the SAHRC Act [2], confers on the Commission the power to issue directives binding on private parties, and whether the principle in Economic Freedom Fighters v Speaker of the National Assembly [3] (“EFF I”) – that the Public Protector’s remedial action may be binding until set aside by a court – extends to the SAHRC.
Brief background
Agro Data CC purchased the farm Doornhoek in Mpumalanga in 2015 and shortly afterwards restricted the occupiers’ access to the farm’s borehole. In 2018, the SAHRC received a complaint on behalf the occupiers, some of whom qualified as occupiers under the Extension of Security of Tenure Act (“ESTA”) [4]. The SAHRC investigated and found that Agro Data CC violated the occupiers’ rights of access to water and dignity under the Constitution and ESTA.
The SAHRC issued three directives – that Agro Data CC restore the occupant’s access to the borehole water; that the parties engage in good faith on water management; and that the Agro Data CC disclose relevant scientific and cost information. Subsequent inspections by the SAHRC in 2019 and 2020 confirmed that none of the directives had been complied with by Agro Data CC.
Rather than litigate the underlying rights dispute, the SAHRC approached the High Court, Mpumalanga Division, Mbombela, for a declaratory order that its directives were binding and enforceable. The High Court dismissed a blanket declarator. The Supreme Court of Appeal further dismissed the appeal [5]. The SAHRC then sought leave to appeal to the Constitutional Court.
The application for leave to appeal was heard by the Constitutional Court on 25 November 2025.
The arguments before the Court
The SAHRC
The SAHRC argued that a purposive interpretation of section 184(2)(b) would yield the result that its directives cannot be ignored without consequence. It relied on EFF I for the proposition that the rule of law demands adherence to decisions made by those with legal authority. It then submitted that a narrow reading of its powers would undermine the principle of legality, conflict with South Africa’s international obligations, and leave vulnerable complainants without effective redress.
Notably, the SAHRC’s position shifted during the proceedings- having initially argued that all its directives were binding, it conceded at the hearing that it can only issue recommendations, but contended that some ought to be binding depending on their content. When pressed to articulate a principled basis for that distinction, counsel was unable to provide a satisfactory answer.
Centre for Applied Legal Studies (“CALS”) – first amicus curiae
CALS advanced two propositions.
First, that section 184(2)(b) must be interpreted as broadly as possible in line with international law, including the Paris Principles and the African Charter on Human and Peoples’ Rights, which advocate for National Human Rights Institutions (“NHRI”) to have the widest possible mandates. CALS acknowledged that no binding treaty requires NHRIs to have binding powers, but argued that the broad principles these instruments support such an interpretation.
Second, CALS submitted that the right of access to effective remedies does not require those remedies to be court-based, and that conferring binding powers on the SAHRC would fulfil South Africa’s international obligations in this regard.
ProBono.org (“ProBono”) – third amicus curiae
ProBono framed the issue as one of legal effect rather than binding authority, drawing an analogy between the SAHRC and the Commission for Conciliation, Mediation and Arbitration (“CCMA”).
It argued that if the SAHRC’s decisions carry no legal effect, complainants are denied effective relief and their rights under section 34 of the Constitution are undermined. ProBono also relied on 2007 Regulations issued under the repealed Human Rights Commission Act, which had declared the SAHRC’s findings “final and binding on the parties.” Counsel conceded at the hearing that those regulations had been impliedly repealed, but maintained they remained “interpretively relevant.”
AfriForum – second amicus curiae
AfriForum argued that the SAHRC has neither the constitutional nor the statutory authority to issue directives at all – it is empowered only to make recommendations. It argued that the SAHRC’s interpretation disregards the text, context and purpose of section 184(2)(b) and incorrectly equates itself with the Public Protector. AfriForum rejected the contention that an absence of binding powers would render the SAHRC ineffectual, submitting that it remains a powerful institution through the exercise of persuasive “soft power” that does not depend on coercive authority.
What the Court decided
Writing for a unanimous Court, Nicholls AJ dismissed the appeal. The SAHRC does not have the power to issue legally binding directives. Its role is to assist complainants in securing redress – through mediation, funding or instituting litigation, or referring the complainant to an appropriate forum. Where a respondent refuses to follow a recommendation, the matter must be litigated on the underlying facts and the entitlement to relief established on the merits.
The Court’s reasoning
1. The text of section 184(2)(b) of the Constitution
The phrase “take steps to secure appropriate redress” is materially distinct from the Public Protector’s power to “take appropriate remedial action,” or a court’s power to “make” an order or “grant” relief – formulations that signal a remedy flowing directly from the decision-maker. “Take steps to secure” connotes facilitation. The SAHRC may take steps towards redress, but it may not itself grant it.
2. The statutory scheme
Section 13(3)(a) of the SAHRC Act directs the SAHRC to assist complainants, arrange or fund litigation, or refer complainants to appropriate forums – provisions that only make sense if binding redress lies with a court or tribunal, not the SAHRC. Section 14 of the Act reinforces this by equipping the SAHRC with non-coercive tools of mediation, conciliation and negotiation.
Crucially, the SAHRC Act is silent on consequences for non-compliance, confirming that Parliament did not intend to vest coercive authority in the Commission.
3. Legislative history
The Constitutional Assembly’s Sub-Theme Committee 3 recorded express agreement in its May 1995 Final Report that the SAHRC “should not have adjudicative powers.” The language of section 13(3) mirrors section 116(3) of the interim Constitution, reflecting a deliberate and unbroken design. The SAHRC was always intended to be a facilitative institution, not an adjudicative one, and the text gives effect to that intention.
4. EFF I distinguished
EFF I rested on a detailed interpretation of the phrase “take appropriate remedial action,” unique to the Public Protector, and established no general rule that every Chapter 9 institution’s decisions are binding. Each institution’s powers must be interpreted within its own constitutional design. The Court also clarified that legal status does not automatically translate into binding effect. Whether a decision imposes enforceable obligations is always a question of interpreting the specific empowering provisions, and that inquiry yielded a clear answer against the SAHRC’s arguments.
5. Parliament knows how to confer coercive powers expressly
When Parliament decided the Auditor-General needed binding remedial powers, it expressly amended the Public Audit Act to insert sections 5A and 5B, conferring those powers and stipulating consequences for non-compliance. The SAHRC Act contains no equivalent provisions. That omission reflects a deliberate legislative choice, and confirms that where Parliament intends a Chapter 9 institution to exercise coercive authority, it says so in clear terms.
6. International law
The Paris Principles do not require NHRIs to have binding enforcement powers. The SAHRC holds A-status accreditation alongside institutions in Ghana, Mauritius and Malawi that likewise lack such powers. Binding authority in other jurisdictions flows from express domestic legislation, not international obligation. Neither section 39(2) nor section 233 of the Constitution can be used to confer powers that the text of the Constitution and the SAHRC Act have deliberately withheld.
7. The 2007 Regulations
The Court rejected ProBono’s reliance on the 2007 Regulations on two independent grounds. First, the regulations were impliedly repealed by the Regulations issued in 2012 and 2017, with no savings clause preserving their operation.
Second, and more fundamentally, even if the regulations survived repeal, they could not have conferred what ProBono sought. Applying Minister of Finance v Afribusiness NPC [6], the Court held that subordinate legislation cannot confer powers the enabling statute does not authorise.
Since section 184(2)(b) of the Constitution and section 13(3) of the SAHRC Act do not authorise the Commission to impose binding obligations, a regulation declaring its findings “final and binding” was ultra vires regardless of repeal.
The contention that the 2007 Regulations remained “interpretively relevant” was accordingly rejected: a provision that is both repealed and ultra vires carries no interpretive weight.
Why this judgment is important
The judgment reaffirms that coercive public power must be grounded in clear constitutional or statutory authority and cannot be expanded by implication. A party who receives an adverse SAHRC finding need not comply as though it were a court order. Any binding determination requires proper proceedings before a competent court or tribunal.
Where a respondent refuses to comply, the SAHRC or the complainant must litigate the rights dispute on the merits, with the SAHRC’s investigation and report ordinarily serving as the evidentiary foundation for that case.
The Court emphasised that this does not diminish the SAHRC. Its investigative authority, its standing to litigate on behalf of complainants, and its capacity to exert normative pressure on state and private actors give it substantial influence. What the judgment forecloses is the SAHRC treating its recommendations as self-executing orders that bypass the judicial process.
[1] [2026] ZACC 16.
[2] South African Human Rights Commission Act 40 of 2013.
[3] Economic Freedom Fighters v Speaker of the National Assembly [2016] ZACC 11; 2016 (3) SA 580 (CC).
[4] Extension of Security of Tenure Act 62 of 1997.
[5] South African Human Rights Commission v Agro Data CC [2024] ZASCA 121; 2024 (6) SA 443 (SCA).
[6] [2022] ZACC 4; 2022 (4) SA 362 (CC); 2022 (9) BCLR 1108 (CC).