National Human Rights Institutions as Gateways to Remedy under the UNGPs: The South African Human Rights Commission (Part.2) - By Alexandru Tofan

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 This act was later repealed by the South African Human Rights Commission Act No 40 of 2013 (‘the Act’), which entered into force on 5 September 2014 and which currently governs the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.

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