Human rights commission remains viable avenue for protection of Jewish community

The finding in the long-running litigation South African Human Rights Commission versus Agro Data CC and Another [2026] has confirmed that the South African Human Rights Commission (SAHRC) doesn’t possess binding remedial powers. 

That is to say that its role is recommendatory and facilitative, not coercive. In plain terms, an offender has no obligation to comply with a commission directive to take corrective action, as it did with Johannesburg mayoral committee member Thapelo Amad, requesting him to apologise to our community for social media posts glorifying Hamas. 

On paper, the court finding appears to cement the SAHRC’s reputation as powerless, rendering it a futile destination for our community when our dignity and rights are impugned. There have been concerned mutterings about the supposed toothlessness of the commission and what this may mean for the future protection of our minority rights. 

Those concerns are misplaced. Our constitutional sky has not fallen, nor have the horizons of minority protection been reduced. 

Judicial finality on the question of whether the commission’s directives are binding is only one important feature of the judgment. 

Acting Constitutional Court Justice Caroline Nicholls, in a passage that deserves to be widely read, stressed that recognising the absence of binding remedial powers “does not diminish the constitutional importance of the SAHRC or render its work ineffectual”. On the contrary, the court held, “The SAHRC is far from toothless.” 

That is exactly right. 

The commission’s influence lies in its investigative powers, its support of litigation, its shaping of public conduct, its informing of public debate, and its exertion of “normative pressure on organs of state and private actors alike”. In short, the SAHRC remains a powerful constitutional actor because it performs a distinctive function in our democracy. 

For the South African Jewish Board of Deputies (SAJBD), that is not alarming. It is consistent with the Board’s understanding of the role and function of the commission. The Board has never relied on the SAHRC because it imagined it to be a court by another name. It has relied on it because it is a serious constitutional institution that can investigate complaints, identify rights violations, and, where necessary, help carry a matter into litigation. 

South African Human Rights Commission on behalf of South African Jewish Board of Deputies versus Masuku and Another 2022 (4) SA 1 (CC) illustrates the point plainly. In that matter, the SAHRC acted on behalf of the Board in litigation concerning hate speech directed at the Jewish community. The SAHRC did not remain on the sidelines. It took up the complaint and pursued relief in court. 

That is how constitutional protection often works in practice. A complaint is lodged. A constitutional institution investigates it, makes findings and recommendations, and, if those are ignored, the matter is then taken to a court that can grant binding relief. The fact that the Human Rights Commission cannot itself make final orders doesn’t diminish the significance of its place in that process. 

For minority communities like ours, that role is vital. In a constitutional democracy, minorities are entitled to insist that their place in the constitutional order is protected against discrimination and hate. Jewish life in this country depends in part on the strength of that order and on the willingness of institutions to uphold it. 

The SAJBD has long regarded the SAHRC as a constitutional pillar in the work of enabling Jewish life in South Africa. The Constitutional Court judgment is consistent with that view. When Jewish rights are threatened by the storms of hate, the SAHRC remains one of the constitutional means by which protection and redress may be pursued. 

• Gavin Rome is a senior counsel. He writes this article as a board member of the South African Jewish Board of Deputies.