Editor's Note: Alexandru Rares Tofan recently graduated with
an LLM in Transnational Law from King’s College London where he focused
on international human rights law, transnational litigation and
international law. He is currently an intern with the Doing Business
Right project at the Asser Institute in The Hague. He previously worked
as a research assistant at the Transnational Law Institute in London on
several projects pertaining to human rights, labour law and
transnational corporate conduct.
The South African Constitution provides in Chapter Nine for the creation of several
institutions meant to strengthen constitutional democracy. The South African
Human Rights Commission (SAHRC) is one of these institutions. Its
constitutional mandate grants it authority to promote, protect, monitor and
investigate non-compliance with human rights in South Africa (see s.181 (1) (b) jo. s.184 (1)-(4)). Alongside this constitutional basis, the SAHRC
enjoys a legislative mandate in that it was established by the Human Rights Commission Act No 54 of 1994. This act was later repealed by the South African Human Rights Commission Act No 40 of
2013 (‘the Act’), which
entered into force on 5 September 2014 and which currently governs the
Commission jointly with the constitution. This act details the Commission’s
functions and powers in sections 13 and 14. The SAHRC is empowered to make
recommendations to state organs for the adoption of measures for the promotion
and observance of human rights, undertake studies, request information, develop
and conduct educational programmes, review and propose government policies and
legislation relating to human rights, monitor implementation and compliance,
and undertake investigations into allegations of human rights violations inter alia (see s.13 and 14 of the Act). The SAHRC is based in Johannesburg but
it has regional offices in the other eight South African provinces as well.
This article analyses two types of action in order to
observe the extent to which the SAHRC has assumed its role in promoting access
to remedy in business and human rights cases. According to the 2010 Edinburgh Declaration of the International Co-ordinating Committee of
National Institutions for the Promotion and Protection of Human Rights (ICC),
the participation of NHRIs in the remedial process may be either direct or
indirect. As will be shown, the South African Human Rights Commission has
adopted a far-reaching and comprehensive approach to both direct and indirect
participation in the provision of access to remedy.
As to direct participation, the SAHRC’s mandate to
receive, investigate and provide redress for human rights violations is
governed both by the constitution and the Act. Section 184 (1) (b) of the
Constitution dictates that the Commission must promote the protection of human
rights while Section 184 (2) (a)-(b) states that it has powers to investigate
and to take steps to secure appropriate redress where human rights have been
violated. The Act further details that the Commission may resolve any dispute
or rectify any act or omission emanating from or constituting a violation of or
threat to any human rights (see s.14 (a) and (b)). It can do so by mediation, conciliation or a
negotiation endeavour. The SAHRC published its updated complaints handling procedures on 1 January 2018. These reaffirm the Commission’s
broad mandate in that they state that the SAHRC is competent to investigate any
alleged violation of human rights whether upon receipt of a complaint or ex officio (see Article 3 (1)). Complaints may treat businesses as the offender
without limitations as to the type of company or violation. The SAHRC may also
institute legal proceedings in its own name or on behalf of a person or a group
or class of persons (see s.13 (3) (b)). The case load of the Commission averaged 4633
complaints per year between 2012/13 – 2016/17 (see Table 1).
Under the UNGPs, NHRIs are supposed to offer an
alternative to instituting legal proceedings. This is reflected in the practice
of the SAHRC, which focuses on alternative dispute resolution (ADR) mechanisms
such as mediation, conciliation and negotiation. A trends analysis by the Commission has revealed the fact that ADR
mechanisms have a high rate of successful resolution. For the period 2016-2017,
90% of the complaints addressed through ADR mechanisms were successfully
resolved (see here at page 42 and 43). For this reason, the SAHRC’s
approach to handling complaints relies first on negotiation and conciliation,
and, if these fail, the Commission attempts to mediate the matter. Making use
of the South African courts becomes in this sense the last resort. Moreover,
the Commission has taken a preventive approach to the handling of grievances by
conducting targeted investigations on systemic issues (see, e.g., the SAHRC’s national hearing on the underlying socio-economic
challenges of mining-affected communities in South Africa). This extensive report does not only identify and
analyse the underlying issues, but it also includes concrete recommendations as
to what stakeholders could do to ensure access to remedy. For instance, the
report states that it is worrisome that some mining companies do not have
complaint monitoring and resolution mechanisms in place as per the UNGPs (see
the Report on page 79). This practice resonates with the vision
for NHRIs under the UNGPs, which note that gaps in the provision of remedy
could be filled by mediation-based, adjudicative or other culturally
appropriate and rights-compatible non-judicial mechanisms. Alongside its
complaints procedure, the Commission further promoted access to remedy by
acting as an amicus in various business and human rights cases (see for
instance the case of University of Stellenbosch Legal Aid
Clinic and Others v Minister of Justice and Correctional Services and Others).This, paired with its far-reaching complaints
mechanisms, shows that the SAHRC plays a much wider role than the Dutch NHRI in
providing direct access to remedy for
victims of business-related human rights abuses.
As to indirect participation, the South African Human
Rights Commission is mandated to promote respect for human rights, monitor and
assess the observance of human rights, carry out research and educate inter alia. In terms of business and
human rights, the Commission has comprehensively grappled with these duties.
The SAHRC participated in multiple international conferences devoted to
discussing the role of NHRIs in the field of business and human rights. For
instance, the Commission was one of the institutions that participated in the
Global Alliance of NHRIs’ 2010 conference on the role of NHRIs in business and
human rights. Similarly, in 2011 the Commission participated in the Network of
African NHRIs in business and human rights, which resulted in the Yaoundé Declaration. This affirmed the collective commitment of NHRIs to
strengthen their capacity on business and human rights and to address related
human rights abuses. Nationally, the SAHRC carried out multiple awareness
raising and educational initiatives. These include the hosting of the 2013
Business and Transparency Forum, the 2015 roundtable discussion on ‘Children’s
Rights and Business Principles’, the 2016 conference ‘Access to Justice:
Creating Access to Effective Remedies for Victims of Business Related Human
Rights Violations’, and the 2018 ‘Business and Human Rights Dialogue’. The SAHRC focused on business and human rights as a
key strategic focus area both in 2014-2015 and 2015-2016 (see here at page 10). In March 2015, the SAHRC together with
the Danish Institute for Human Rights published the ‘Human Rights and Business Country Guide for South Africa’, a highly comprehensive guide tackling all aspects
of this field in South Africa. This guide notably includes information under
each rights area about the remedy mechanisms available to redress violations
and how these mechanisms can be bettered. In sum, the SAHRC’s indirect
participation in the provision of access to remedy is quite extensive. It has
been undertaking capacity-building exercises, educational programmes and it has
established itself at the forefront of the business and human rights field in
South Africa.
In conclusion, the South African Human Rights
Commission has fully assumed the role envisioned for it under the UNGPs. As an
NHRI, the Commission provides a holistic complaints procedure that functions on
the full spectrum of human rights and regardless of the type of company.
Alongside this, it has undertaken numerous educational programmes, published
reports and conducted awareness raising initiatives that have shone a light on
business-related human rights abuses in South Africa.