ProBono.Org has joined the legal discourse at the Constitutional Court by applying to be amicus curiae (friend of the court) in a matter of constitutional significance. In August 2024, judgment was handed down by the Supreme Court of Appeal (SCA) in the matter of South African Human Rights Commission v Agro Data CC & Another (Afriforum, Centre for Applied Legal Studies and Commission for Gender Equality intervening as Amicus Curiae) (39/2023) [2024] ZASCA 121 (15 August 2024).
The case stems from a dispute relating to access to water. The South African Human Rights Commission (SAHRC) investigated a complaint made by occupiers of a farm in Mpumalanga that the farm’s owners (the respondents in the Constitutional Court) had restricted the occupiers’ access to a borehole on the farm, which was their only source of water, and infringed on their constitutional right of access to water. The SAHRC investigated the complaint and, in its final investigative report, directed the respondents to restore water access and engage with the affected community. The respondents failed to comply, prompting the SAHRC to approach the Mpumalanga Division of the High Court for a declaratory order that the directives of the SAHRC are binding.
The High Court declined to declare the SAHRC’s directives as binding. Dissatisfied with this outcome, the SAHRC appealed the matter to the Supreme Court of Appeal. While the SCA acknowledged the SAHRC’s pivotal role in our democracy and emphasised that its recommendations should be given serious consideration, it ultimately ruled that SAHRC directives are not binding unless confirmed by a court.
This case has far-reaching implications for the effectiveness of the SAHRC, and particularly its ability to provide access to justice for marginalised communities. It may also have wider implications for other Chapter 9 institutions.
The matter is now before the Constitutional Court, where the SAHRC seeks to overturn the SCA’s decision and establish the binding nature of its directives. By joining this legal battle, as amicus curiae, ProBono.Org aims to provide additional legal arguments that underscore the necessity of clarifying the legal effect of the SAHRC’s directives. We firmly believe that recognising the legal effect of SAHRC directives will facilitate the expeditious resolution of disputes and accelerate access to justice, reducing reliance on costly and time-consuming court procedures that often disadvantage poor and marginalised communities. ProBono.Org’s participation in this case aligns with its broader mission to advance constitutional justice and protect the rights of vulnerable communities.
The Constitutional Court’s judgment will be pivotal in defining the nature of the powers of the SAHRC, thereby shaping the landscape of human rights protection and enforcement in South Africa.
