헌법재판소의 SAHRC 판결: 의미 있는 인권 집행으로부터의 위험한 후퇴

The Constitutional Court’s ruling that the South African Human Rights Commission (SAHRC) cannot issue binding directives weakens one of South Africa’s most accessible human rights institutions, shifting the burden of enforcement onto those least able to carry it. In doing so, it underscores a deeper reality: that access to justice in SA remains uneven, often shaped less by rights than by resources, status and proximity to power.

The Constitutional Court’s ruling that the SAHRC cannot issue binding directives marks a troubling moment in South Africa’s constitutional journey.

It strips one of the country’s most accessible human rights institutions of meaningful enforcement power and, in doing so, exposes a deeper and more uncomfortable truth: in practice, justice in SA is unevenly distributed, and often mediated by wealth, status and proximity to power.

At the centre of this judgment lies a stark reality. The SAHRC can investigate, document, and confirm human rights violations, but it cannot compel compliance. Where its findings are ignored, those affected must turn to the courts.

For many South Africans, that is not a remedy. It is a dead end.

The SAHRC exists precisely because the majority of people cannot access the courts. It was designed to lower the barriers to justice, to provide a direct and affordable route for those whose rights are violated. The court’s ruling empties that purpose of substance.

Without binding powers, the commission’s findings can be disregarded without immediate consequence. Enforcement becomes dependent on litigation, an option that is often financially out of reach for the majority of people. The burden then shifts back to those who have already been wronged, requiring them to navigate a legal system that is structurally inaccessible.

The result is predictable. Rights are acknowledged, violations are recorded, but accountability remains elusive.

This judgment sits uneasily alongside the court’s own jurisprudence.

When the powers of the Public Protector were tested in the case involving former president Jacob Zuma, the court moved decisively. It rejected a narrow reading of the Constitution and affirmed that remedial actions were binding. It did so to ensure that the institution could function effectively and that accountability would not be undermined.

That judgment reflected a court willing to act boldly in defence of constitutional authority. Or so it appeared at the time.

The contrast with the SAHRC ruling is difficult to ignore. Here, the court has adopted a restrained, formal and narrow approach, despite the clear consequences that such a ruling will have for enforcement of the rights of the most vulnerable in society. The result of this narrow interpretation of the law is that a critical institution, which thousands of poor people rely on to access justice, is left without the tools necessary to secure compliance in the very contexts where violations are most entrenched.

This divergence raises uncomfortable questions about consistency, not in doctrine alone, but also in constitutional posture.

The treatment of Jacob Zuma offers a revealing lens, given what we know today about corruption in the state and the way that prosecutions or accountability is approached by the ruling class. Zuma operated in conflict with established centres of power. His defiance was overt, and his political project disruptive to existing alignments. In that context, the court responded with clarity and force, asserting its authority and ensuring compliance. That moment was framed as a triumph for the rule of law. In many respects, it was.

But the application of that same urgency and expansiveness appears uneven when viewed against other contexts. The handling of matters involving President Cyril Ramaphosa, including the Phala Phala controversy, has not produced the same level of judicial assertiveness or interpretive boldness. The contrast does not suggest identical cases or identical legal questions, but it does point to a pattern in how power is engaged.

Where actors fall outside dominant networks of influence, the system can act decisively. Where power operates within established structures, political or economic, accountability tends to move more cautiously, more incrementally, and sometimes not at all.

The SAHRC ruling must be understood within this broader landscape.

Human rights violations in SA are often systemic. They are tied to conditions of poverty, inequality, environmental harm, and the conduct of both state and corporate actors. The patterns of harm affecting communities with limited capacity to litigate are well documented by the SAHRC itself, and it has reported this consistently over decades of ongoing systemic abuse by both the state and corporations.

By denying the SAHRC binding powers, the court has reinforced a system in which accountability in these contexts remains uncertain and contingent. This outcome was not inevitable. In the Public Protector matter, the court adopted a purposive and expansive interpretation to ensure that the institution was not rendered ineffective. It recognised that without binding force, constitutional oversight becomes hollow. The same reasoning was available here. The court chose not to apply it.

By failing to apply a consistent interpretive approach, the court has weakened the Constitution’s transformative ambition of building a rights-based society. In doing so, it risks deepening a growing disconnect between the Constitution and the people it is meant to serve, particularly those who experience rights not as guarantees, but as distant promises without remedy.

SA’s constitutional framework has already shown that it can support strong, enforceable accountability. The Public Protector judgment made that clear. The principle has been established.

But in the wake of this concerning retreat from its established constitutional posture, what now demands honest confrontation is something else entirely: Does wealth, status and proximity to power determine the justice one ultimately receives?

The SAHRC ruling brings that question into sharp focus. It reveals a system that is capable of decisive enforcement, but not consistently willing to extend that same force to those who rely on it most.

The consequences of this judgment will not be felt in courtrooms alone. They will be felt in communities where rights are violated but remain unenforced. In places where findings are issued but ignored. In the quiet normalisation of non-compliance and violation of those things we once held sacred.

This is where constitutional meaning is tested – not in principle, but in practice.

A system that places the burden of enforcement on those who cannot afford it risks entrenching the very inequalities the Constitution was meant to overcome. It creates a landscape in which accountability is uneven, and where the promise of rights depends on factors that should be irrelevant in a constitutional democracy.

The court may not have intended this outcome. But its effect is unmistakable. And its implications will not easily be undone. DM