Activists have warned that a Constitutional Court ruling limiting the powers of the South African Human Rights Commission (SAHRC) marks a setback for LGBTQ+ rights in South Africa.
On Wednesday, the country’s highest court unanimously ruled that, under its interpretation of Section 184 of the Constitution, directives issued by the SAHRC are not legally binding and carry the weight of recommendations only.
The court said that if those implicated in an investigation refuse to implement the commission’s recommendations, the SAHRC must approach the courts to enforce its directives.
Reading the judgment, Justice Steven Majiedt said: “After the SAHRC concludes investigations into complaints, it may issue recommendations for redress. Should respondents decline, the SAHRC would be required to litigate the matter on underlying facts.”
Case Rooted in Mpumalanga Water Dispute
The case centred on a 2018 complaint against a farm owner in Mpumalanga who allegedly imposed unilateral restrictions on occupiers’ access to borehole water.
The commission ordered the farm owner to restore access and engage in good-faith discussions with those affected.
Despite its ruling, the Constitutional Court insisted that the SAHRC is not toothless, noting that its findings can serve as an “evidentiary foundation” in legal proceedings.
The SAHRC, however, has argued that it lacks the resources to litigate the thousands of complaints it receives and processes each year.
Resource Constraints Raise Concerns
Sibonelo Ncanana-Trower, National Task Team Civil Society Co-chair and Human Rights Coordinator at OUT LGBT Well-being, expressed concern about the ruling, warning that it could frustrate access to justice, particularly given the slow pace of the South African court system.
“If the SAHRC is now required to approach the courts to enforce its own directives, while openly stating that it does not have the resources to do so, then in practice this weakens enforcement rather than strengthening accountability,” Ncanana-Trower told MambaOnline.
Impact on LGBTQ+ and Marginalised Communities
“For LGBTIQ+ people and other vulnerable groups, this means that rights may exist on paper but remain largely unenforceable in reality,” he said.
Ncanana-Trower cited the Jon Qwelane hate speech case, which took more than a decade to conclude in the courts, as an example of systemic delays.
“Very few individuals or communities can afford to wait that long for justice, financially, emotionally, or socially. The people who will suffer the most from this judgment are poor and marginalised communities. These are the very groups who rely on institutions like the SAHRC as accessible entry points to justice,” he said.
He added: “Courts are expensive, highly technical, and already overwhelmed by serious backlogs. For many, litigation is simply not a realistic option. In this context, requiring court enforcement effectively places justice out of reach for those who need it most.”
Calls for Greater Resourcing of the SAHRC
Ncanana-Trower argued that the Constitutional Court should recognise the structural barriers that ordinary people, particularly marginalised communities, face when accessing the courts.
“Without adequate resourcing of the SAHRC and without realistic consideration of how enforcement works in practice, this judgment undermines substantive equality and weakens the protection of LGBTIQ plus rights rather than advancing them,” he said.
One Comment
Sadly, it seems that human rights, fought for by so many brave people, are never guaranteed, whether freedom of political expression, women’s rights, religious minority rights or gay rights, to be treated as equal citizens, including the right to same sex marriage, as along comes some oppressive ruling, engineered by a swing in a political party newly in power, and the clock goes back, a terrible form of time travel, giving power to small-minded bigots who would do well to remain silent.