'Most Notably' (11 May 2026)

Today's 'Most Notably' focuses on challenges faced by the South African Human Rights Commission (SAHRC) in the light of the 22 April 2026 Constitutional Court ruling on the Commission's role and powers. To that end, we draw extensively on our report for SA Legal Academy.

The ruling was discussed at length during a 5 May 2026 meeting of the National Assembly's Justice & Constitutional Development Committee, when Deputy Minister Andries Nel confirmed that amendments to the 2013 SAHRC Act are being considered to "bolster" the powers of the Commission. The committee has since issued a media statement calling for the legislative amendment drafting process and associated pre-tabling procedural steps to be "expedited".

As we reported last month, an earlier committee statement noting the ruling welcomed the clarity it had provided on the Commission's "investigative role" – as well as the "central role of the courts in issuing binding remedial orders".

By contrast, discussions during the 5 May 2026 committee meeting underscored the serious implications this could have for the Commission, which will be obliged to litigate whenever a recommendation emerging from one of its inquiries into an alleged human rights violation is ignored by the perpetrator. Ongoing budgetary and capacity constraints could make this difficult.

Being responsible for "liaising with the Commission and providing support, particularly on policy matters and the development and amendment of legislation", the Deputy Minister confirmed that he had met with the SAHRC immediately following the Constitutional Court ruling. However, while he had apparently used that opportunity to commend the "spirit" in which the Commission had accepted the judgment, during his input to 5 May 2026 committee discussions on the matter the Deputy Minister chose not to refer to a media statement issued by the Commission at the time.

Among other things, it noted that "requiring enforcement through courts in all instances of non-compliance may delay the resolution of human rights violations, increase costs for affected persons and communities, and place additional strain on both institutional and judicial resources". According to the statement, "these practical implications remain important in understanding the full impact of the judgment". In that context, the statement drew attention to the "significant weight" SAHRC findings and recommendations will continue to carry. They "should be respected, given serious consideration and implemented unless there are valid reasons not to do so," the statement continued.

Instead of quoting the Commission's statement, the Deputy Minister read the ruling's closing paragraph to illustrate the importance of the work of the SAHRC:

"Recognising the absence of binding remedial powers does not diminish the constitutional importance of the SAHRC or render its work ineffectual. The SAHRC is far from toothless. Its influence lies in the deployment of the powers conferred upon it by the Constitution and the SAHRC Act, including the exercise of extensive investigative authority, the support of litigation, the shaping of the conduct of state officials, the informing of public debate and the exertion of normative pressure on organs of state and private actors alike. Properly understood, the SAHRC’s strength lies precisely in its capacity to act in ways that courts cannot. Even without binding remedial competence, it remains a potent and indispensable guardian of human rights within our constitutional scheme."

Against that backdrop, the Deputy Minister has appealed to National Assembly Speaker Thoko Didiza to ensure that SAHRC inquiry reports are shared with all parliamentary committees whose portfolios include matters affected by the work of the Commission. Also, given the broader implications of the Constitutional Court judgment, the latest SAHRC report will be formally tabled with Cabinet so that other Ministers have the opportunity to engage the Commission on issues affecting their respective departments.

Our reports on other recent key developments can be found on the SA Legal Academy website under "News".

Until next Monday ...

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