Constitutional Court finding is a missed opportunity
- Lee-Anne Gaertner
This week, the Constitutional Court handed down judgment in a matter which has important implications for the Human Rights Commission and the right to water
On Wednesday, 22 April 2026, the Constitutional Court handed down judgment in an appeal brought by the South African Human Rights Commission. The Court was asked to consider whether the Commission’s directives are legally binding. The judgment acknowledges the “indispensable role” of Chapter 9 institutions in advancing the constitutional project, but finds that the Commission’s directives do not have to be binding in order for it to fulfill its mandate.
The case arises from a complaint investigated by the Commission in 2019. The Commission found that farm owners had infringed on a community’s rights to dignity and to water and directed the owners to engage with the community and restore their water supply. When the owners failed to comply with these directives, the Commission approached the High Court seeking to enforce the directives and also seeking a declaration that all their directives are legally binding.
The High Court ruled against the Commission, and the matter was taken on appeal to the Supreme Court of Appeal. The judgment from the Supreme Court of Appeal recognised the importance of the right to water and the Commission’s role in our constitutional democracy, but stopped short of ruling that their directives are legally binding. The Commission then approached the Constitutional Court for final clarity on the matter and the appeal was heard on 25 November 2025.
The Centre for Applied Legal Studies (CALS) intervened in the appeals as a friend of the court. We argued that the Constitution should be interpreted as broadly as possible in line with international law that guides how human rights bodies like the Commission function. We further made the case that the Commission has a critical role to play in realising the right to access remedies when rights are violated – particularly for communities living under impoverished conditions.
The Constitutional Court on Wednesday, 22 April 2026, handed down dismissing the Commission’s appeal. The judgment acknowledges the “indispensable role” played by Chapter 9 institutions in advancing the constitutional project, but finds that the Commission does not have the same power to issue binding directives as the Public Protector. Rather, its function is to investigate, support litigation, and exert pressure on powerful actors. The Court argues that the Commission is “far from toothless” and is still a “potent guardian of human rights” despite the ruling.
“This judgment is a missed opportunity to enhance the protection of the most vulnerable people in our society,” says Sithuthukile Mkhize. “Many of the people who approach the Human Rights Commission for redress will find that this creates yet another barrier to accessing justice. Nonetheless, we acknowledge the judgment for amplifying the important role played by the Commission, an institution created to support our democracy. The ruling emphasizes that directives issued by the Commission do have legal status and can therefore not be ignored in the absence of legal consequences.”
CALS is represented in the matter by in-house counsel Jatheen Bhima.
Read our papers in the matter here.
For inquiries, please contact:
- Sithuthukile Mkhize (Head: Civil and Political Justice) on sithuthukile.mkhize@wits.ac.za
- Mazi Choshane (Attorney: Civil and Political Justice) on mazi.choshane@wits.ac.za