The SA Human Rights Commission’s misguided quest to have its directives made binding

In his essay, On the Government of a City, the Italian jurist Bartolus de Saxoferrato (Bartolus) wrote of six regimes by which a city (or more accurately a city-state, as Rome was at the time) could be governed. Some entailed rule by one person or a few, like a monarchy or an aristocracy; others entailed rule by the many, like a democracy.

But for each good form of rule, Bartolus stressed, there remained the ever-present danger of tyranny, such that, over time, an aristocracy could become an oligarchy, and a democracy could become a dictatorship of the majority over the minority. Each form of government could be perverted and turned into something else entirely.

For Bartolus, however, even these perverse forms of government would still be preferable to an even worse one, what he called “a monstrous government”. In such a government, “there are many tyrants ... so strong that one cannot prevail against the other”.

Such a government comes into existence when the ruler of a state is impotent to act against others who clamour for the imperium: the power to rule. An apt analogue, perhaps, for those of us who prefer Greek mythology over Ancient Roman history, is Hydra – the many-headed serpent monster, whose heads regenerate every time they are cut off.

Hydra is the perfect representation of Bartolus’ monstrous government, not least because it is an actual monster. But it also signifies a particular type of monster: one with many heads and not a single one to control the others, each doing its own thing.

Recent developments in our constitutional jurisprudence suggest that South Africa is well on its way to becoming a Hydra state. And it all began with Nkandla.

In a much-lauded judgment, the Constitutional Court declared that the Public Protector’s remedial action is binding unless and until it is set aside by a court on review.

It was met with great jubilation at the time because of its implication that then-president Jacob Zuma would have to repay the state for the public money unlawfully spent on upgrades to his palatial homestead in Nkandla.

While some scholars commended the judgment on the basis that it enhanced “public accountability”, the judgment is not without its critics, and we count ourselves among them.

In a forthcoming book chapter, we argue that the judgment was a response to the political zeitgeist and that the court, driven by a desire to arrive at a socially acceptable outcome, created a rule that has no basis in the text or structure of the Constitution, or even the law as it related to the Public Protector’s office at that time.

We say this, of course, with the benefit of hindsight. But it is as true now as it was then.

Soon after the Nkandla judgment was handed down, an argument was being developed to extend its logic to other – but not necessarily all – Chapter 9 institutions. These institutions were established to support constitutional democracy through, among other things, promoting and monitoring the observance of human rights and investigating allegations of maladministration and improper conduct by state actors. They were created to stand outside of both the traditional three arms of state and the public service.

Most importantly, they were granted independence from outside interference, whether public or private. The Public Protector, for instance, was inspired by the concept of a public ombudsman tracing back to 1713 in Sweden. This makes it one of the earliest independent state bodies tasked with holding the government accountable and investigating its actions on behalf of the public. We digress.

It is precisely because of their independence and relative autonomy from the rest of the apparatus of the state that the functions of Chapter 9 institutions were carefully circumscribed, comprising mostly the duties to investigate, report, monitor state action, and to educate the public about their rights.

Nkandla turned this understanding of their powers on its head. In its stead, it introduced the concept of binding powers that exist outside of the traditional executive, judicial and legislative powers. In other words, it opened the door to Milton’s Pandemonium.

The debate over the effect of the judgment on other Chapter 9 institutions’ powers was largely academic. That is until 2022, when the South African Human Rights Commission (SAHRC) argued in the Mpumalanga Division of the High Court that its directives are binding.

That court rightly rejected that argument, holding that “the SAHRC stands outside of government and is not a branch of government. It is further not a legislative, judicial or an executive organ, and therefore does not exercise power in the same way as the executive, legislature or Parliament do. Although it has investigatory power and it may be interpreted to have certain administrative powers, it does not govern.”

The court also noted that while both the Public Protector and the SAHRC were Chapter 9 institutions, there were also significant differences in how their respective powers and functions were set out in the Constitution and that, consequently, the rule in Nkandla could not be assumed to apply wholly and equally to the SAHRC.

Although the court hinted at there being a hierarchy within Chapter 9 itself, we are not convinced, but that’s by the way.

The recent break with this ancient wisdom has led to the emergence of a monstrous government, making these powerful independent institutions the target of power-hungry individuals who would wish to wield their powers against their opponents, all the while neglecting their actual constitutional functions.