South African Human Rights Commission Blog by Joshua Scanlon, 17 March 2011

The South African Human Rights Commission is a “Chapter Nine” body, or independent agency, under the South African Constitution. This means that it answers only to Parliament, similar to the Office of the Public Protector that we visited earlier in the week. The Commission, however, has a much broader mandate. While the Public Protector can only pursue action on claims made regarding public governmental organizations, the Commission can pursue any claim regarding a denial of any constitutional right, against anyone, public or private, who has denied or violated that right. The Commission also, aside from pursuing claims of rights violations, has the additional obligations to research human rights issues and to educate the populace on the rights to which they are entitled.

As explained to us by Eric, the Deputy Director of the Commission’s Legal Services Program, and Jennifer, the Director of the Gauteng Provincial Office; the Commission can pursue claims that are brought before them in a number of ways, specifically they can inspect, investigate, mediate, and litigate. Most often, the commission will inspect and investigate a claim by using the usual legal tools: questioning the parties involved, requesting information from parties and related entities, and by using their power to subpoena documents against any unresponsive or uncooperative parties. Often times once the inspection or investigation has progressed this far a claim will either be found invalid, or be settled through mediation if found valid. This result is apparently more likely if the parties are more rural or more distanced from government influence.

If, however, the Commission finds that a violation has occurred, and the case is not settled, then the matter must go to court for litigation. This is because the Commission’s decision that a violation has occurred, while influential in court, is not legally binding. This is a source of difficulty for the commission, as many of the claims brought before it cannot be solved solely by the a, and also because the Commission does not itself represent individuals whose claim they support. The Commission may aid the individual bringing the claim in finding representation, but cannot by itself represent them. Instead the Commission acts as a kind of expert witness, providing a report to the court, and testifying as to that report before the judge. The judge will then make a binding decision, which both the parties, and the Commission, must then abide by. The decisions act as a sort of precedent for future investigations by the Commission.

As to the Commission’s other duties, research and education, other branches of the organization deal with those. The Advocacy division is regularly engaged in presentations and workshops within the local communities, and the Media division works on the more basic advertisement style outreach in the form of television, radio, and other kinds of marketing. The research division examines human rights issues and how they are analyzed through out the country as well as internationally, to help inform them of what might constitute a right violation. This type of research is important, as they explained to us one of the major issues which the Commission must deal with in it’s every day work is the ability to define the rights about which they receive complaints.

For example, one of the complaints they receive is in regard to the right to housing. As actually laid out in the Constitution, the right is a right of “access” to housing. The difficulty comes in defining the word “access,” what is access? Does it mean a person has a right to a plot of land with nothing on it? Does it mean he has a right to materials for a house? Does he have a right to own a house? These kinds of questions are what the Commission must address each time a claim is made that a right has been violated. It must balance the facts of the case, against its understanding of the right, and then pursue the claim to the best of its ability. The people working for the Commission are passionate people though, who believe strongly in the work they are doing to help South Africa realize the rights embodied in its Constitution; and we wish them well as they take on their daunting but important task.

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