In March last year, the Gauteng High Court delivered a significant ruling in the case AfriForum v South African Human Rights Commission (SAHRC) and others, highlighting significant checks and balances on Chapter 9 institutions to make binding determinations on, in this case, hate speech.
This adds to the debate that strikes at the heart of South Africa’s constitutional architecture and the role of its Chapter 9 institutions.
The SAHRC is the national institution established to support constitutional democracy. It is said to be committed to promote respect for, observance of and protection of human rights for everyone without fear or favour.
But in this video, Truth Report contributor Joe Emilio reflects on observed cases and potentials in which Chapter 9 institutions might display an overreach of their powers to prosecute individuals without due process.
What is at stake?
AfriForum argued that the SAHRC, though mandated to investigate and report on human-rights abuses, “does not possess the lawful power to make legally binding decisions declaring speech as hate speech under the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA)”. Instead, any enforcement must pass through a competent court such as the Equality Court.
This follows a successful court application to review SAHRC’s decision that utterances by Julius Malema, leader of the EFF, did not amount to hate speech. Judge Roland Sutherland ruled that the SAHRC’s 2019 finding that Malema did not commit hate speech during a 2016 gathering, should be set aside.
The court further found that the SAHRC does not have binding powers to make definitive decisions or findings. AfriForum won this case emphatically with costs. [afriforum.co.za]
The organisation emphasised constitutional safeguards: the separation of powers, the rule of law and the need for judicial oversight—especially when fundamental rights like expression are implicated .
Sutherland held that the SAHRC’s powers are persuasive and advisory—not coercive. The Commission may investigate, form an opinion, and suggest remedial action, but any enforcement must be pursued through the courts. [saflii.org]
SAHRC’s position
The Commission has appealed the matter, considering that its mandate to issue opinions and recommendations is essential for swift redress. Requiring judicial oversight for every determination would delay, complicate and potentially undermine its capacity to intervene effectively in instances of human‑rights violations.[sahrc.org.za]
While AfriForum’s court victory delivers a firm check on overreach, the SAHRC is not backing down just yet. An appeal may be on the cards—raising alarms among legal observers who argue the ruling hampers the Commission’s agility by layering it in red tape.
Yet at the heart of this legal clash lies a far weightier matter: where do we draw the line between watchdog and judge? With constitutional boundaries now tested, it may fall to the highest court in the land to restore clarity—on whether Chapter 9 institutions are drifting beyond their mandate, or merely adapting it to political convenience.
