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Occasional Paper 9/2024 Copyright © 2024 Inclusive Society Institute PO Box 12609 Mill Street Cape Town, 8010 South Africa 235-515 NPO All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means without the permission in writing from the Inclusive Society Institute. DISCLAIMER Views expressed in this report do not necessarily represent the views of the Inclusive Society Institute or those of their respective Board or Council members. N O V E M B E R 2 0 2 4 The Inclusive Society Institute would like to thank JoAnn Kamuf Ward , who is the Deputy Commissioner, Policy & External Affairs at the New York City Commission on Human Rights, for reviewing this paper.  AH Gaum  (Advocate of the High Court) & M du Plessis  (Attorney of the High Court) Abstract   The South African Human Rights Commission (SAHRC) plays a pivotal role in South Africa’s human rights framework, and its current approach reflects the country’s historical and social context. The Commission's use of ‘soft powers’ – which allow for a less adversarial process, encouraging cooperation, transparency, and voluntary compliance – aligns with the country’s justice reconciliation and restoration mechanisms. However, while the SAHRC has a constitutional mandate to promote and protect human rights, its findings and recommendations are not binding and require judicial endorsement to be enforceable.   In contrast, the New York City Commission on Human Rights (NYCCHR), which operates under the New York City Human Rights Law (NYCHRL), provides more robust enforcement powers. This study examined the differences in legal frameworks and jurisdictional powers between the SAHRC and NYCCHR in order to consider how enforcement of human rights in South Africa can be strengthened. It highlighted their capacities, limitations, and the effectiveness of their enforcement actions.   The study found that their approaches and effectiveness differ significantly due to their distinct mandates and enforcement powers. The NYCCHR’s focus on discrimination and its ability to issue binding orders that can be enforced through judicial support makes it a robust enforcer of anti-discrimination laws. The SAHRC’s broader mandate to address all human rights issues, coupled with its non-binding recommendations and reliance on separate legal proceedings, potentially dilutes its effectiveness as an immediate enforcer of rights. Establishing a tribunal, clarifying and expanding legal powers, enhancing collaboration with judicial bodies, and increasing resources and capacity could be the answer to ensuring the SAHRC remains effective and relevant in the current climate.    1. Introduction   1.1. Background   Human rights commissions are instrumental in promoting and protecting human rights. The South African Human Rights Commission (SAHRC) and the New York City Commission on Human Rights (NYCCHR) are two such bodies operating under different legal frameworks and jurisdictional powers. This study seeks to compare the enforcement mechanisms of the SAHRC and the NYCCHR, highlighting their capacities, limitations, and the effectiveness of their enforcement actions.   1.2. Problem Statement   While the SAHRC has a constitutional mandate to promote and protect human rights in South Africa, its ability to enforce its findings is limited. Recent court cases, such as the Agro Data judgment, have demonstrated that the SAHRC’s recommendations are not binding and require judicial endorsement to be enforceable. In contrast, the NYCCHR operates under the New York City Human Rights Law (NYCHRL), which provides more robust enforcement powers. This study aims to examine these differences and consider how enforcement of human rights can be strengthened.   1.3. Objectives   The primary objectives of this study are to:   Analyse the enforcement mechanisms employed by the SAHRC and NYCCHR. Compare the legal frameworks and enforcement capabilities of both institutions. Identify the limitations of the NYCCHR and SAHRC’s current enforcement powers.    2. The South African Human Rights Commission (SAHRC)   2.1. Constitutional and Legislative Framework   The SAHRC is established under Chapter 9 of the South African Constitution (South African Government, 1996), which outlines its role in promoting and protecting human rights. As a Chapter 9 institution, the SAHRC is mandated to function independently and impartially to support constitutional democracy in South Africa.   The powers, functions, and responsibilities of the SAHRC are defined in the South African Human Rights Commission Act 40 of 2013 (South African Government, 2013). This Act grants the SAHRC authority to investigate human rights violations, issue subpoenas, and make recommendations in cases of human rights violations. The specific powers include:   a)  Monitoring and Investigating:  The SAHRC is authorised to monitor human rights compliance and investigate alleged violations. This includes conducting research, requesting information, and inspecting places such as prisons to ensure adherence to human rights standards.   b)  Issuing Subpoenas:  One of the critical powers of the SAHRC is the ability to issue subpoenas to compel individuals or entities to provide testimony or documents necessary for investigations. Although the word “subpoena” is not used in the SAHRC Act to describe this power, section 15(2)c of the Act in effect creates subpoena powers. Section 15(2)c describes how, in pursuance of an investigation, the SAHRC may “ require any person by notice in writing under the hand of a commissioner addressed and delivered by a member of staff or a sheriff in relation to an investigation to appear before it at a time and place specified in such notice and to produce to it all articles or documents in the possession or custody or under the control of any such person and which may be necessary in connection with that investigation ”.   This power is crucial for gathering evidence and ensuring thorough investigations into human rights abuses. However, the exercise of this power has faced challenges, as will be discussed in light of legal interpretations and judicial guidance.   c)  Making Recommendations:  Following investigations, the SAHRC can make findings and issue recommendations to address human rights violations. These recommendations can be directed at individuals, organisations, or government bodies and may suggest policy changes, restitution, or other remedial actions. However, these recommendations are not binding, which limits their enforceability.   d)  Public Awareness and Advocacy:  The SAHRC has a vital role in educating the public about human rights. It runs awareness campaigns, provides training, and collaborates with civil society organisations to promote a culture of human rights in South Africa.   e)  Reporting:  The SAHRC is obliged to report annually to Parliament on the state of human rights in the country and on the measures taken to address violations. These reports are critical for informing legislative and policy interventions. istockphoto.com: 499739446     2.2. Limitations of the SAHRC's Powers   Non-Binding Nature of Recommendations   One of the most significant limitations of the SAHRC is that its findings and recommendations do not have binding legal force, as established in cases such as South African Human Rights Commission v Agro Data CC  (2022) and AfriForum v South African Human Rights Commission  (2023).   In the Agro Data judgment, the High Court explicitly stated that the SAHRC’s recommendations are advisory in nature and that any enforceable relief for parties seeking redress from the SAHRC would necessitate a separate court application to issue binding orders. This requirement diminishes the immediacy and impact of the SAHRC’s role in enforcing human rights. Shortly prior to the completion of this study, the Supreme Court of Appeal upheld the decision of the High Court in the Agro Data matter (Supreme Court of Appeal, 2024).   In the AfriForum judgment, the High Court ruled that the SAHRC does not have the power to make definitive determinations on whether hate speech has occurred under section 10 of the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA). Instead, the SAHRC can only form an opinion about whether there is sufficient merit to bring proceedings in a competent court, such as the Equality Court. This opinion merely informs whether the SAHRC should support a complainant in pursuing a legal case; it does not serve as a binding or final judgment on the matter. This ruling reinforces the view that the SAHRC’s role is primarily investigative and advisory rather than judicial or determinative.   Reliance on Judicial Processes   To obtain binding legal relief to address human rights violations, the SAHRC cannot rely on its recommendations and must initiate litigation, effectively presenting the case de novo  (whether it has already investigated and issued recommendations or not). This sees the SAHRC stepping out of the role of an independent arbiter of human rights and into that of a party to litigation, entering the court room with its own predetermined views of the matter and handing over the role of independent arbiter to the court. In matters where the Commission has already investigated and potentially made findings and recommendations, this process involves re-arguing the facts and legal issues in court, which can lead to delays and increase the cost of securing compliance with its findings. This reliance on judicial processes was highlighted in both the AfriForum (2023) and Agro Data (2022) cases.   Subpoena Power Limitations   The SAHRC’s use of its authority to compel individuals to provide evidence has been overly cautious, as its consistent practice has been to seek consultation or permission from the National Prosecuting Authority (NPA) before issuing these legal orders. According to the interpretation of the relevant sections of the South African Human Rights Commission Act, such consultation is only necessary in cases where the testimony or documents could lead to self-incrimination, which might affect ongoing or potential criminal proceedings (South African Government, 2014).   This requirement is designed to safeguard the rights of individuals who may be under criminal investigation, ensuring that any compelled testimony does not unintentionally lead to self-incrimination. Additionally, it preserves the integrity of ongoing or future investigations conducted by the NPA that might overlap with those of the SAHRC. By requiring consultation in these specific cases, both institutions can coordinate their actions and maintain awareness of each other's investigative activities, thereby avoiding conflicts and ensuring that justice processes are not compromised.   The SAHRC has interpreted “self-incrimination” broadly to include statements that could show that a person has violated a human right, whether such violation would be truly criminal in nature or not, and has thus sought the permission of the NPA to proceed with subpoenas in numerous matters where doing so was not required.   By misapplying this provision and seeking approval even in situations where there is no risk of self-incrimination, the SAHRC has unnecessarily limited its investigative powers, reducing its efficiency and effectiveness in enforcing human rights protections. A correct understanding and application of these legal provisions are essential for the SAHRC to maximise its authority and impact in its human rights investigations.   Resource Constraints   Resource limitations further restrict the SAHRC’s ability to fulfil its mandate effectively. Inadequate funding and staffing can hamper the Commission’s capacity to conduct in-depth investigations, run educational programmes, and monitor compliance across the country.   2.3. Recommendations for Strengthening the SAHRC’s Powers   Establishing a Tribunal   The creation of a tribunal within the SAHRC could provide a mechanism for issuing binding orders, reducing the reliance on the judicial system to enforce recommendations. This tribunal could operate similarly to the NYCCHR’s Law Enforcement Bureau (NYC Human Rights, N.d.), issuing enforceable orders that parties must comply with or challenge through appeal rather than de novo court proceedings. Establishing such a tribunal would not only require amendments to the SAHRC Act but also a careful consideration of how to balance these binding powers with the SAHRC's existing approach focused on reconciliation and dialogue. By clearly delineating the tribunal's role, the Commission can avoid undermining its soft powers, ensuring that the tribunal handles only cases where legal enforcement is essential.   Clarifying and Expanding Legal Powers   To enhance its investigative capabilities, legislative amendments are needed to clarify the scope of the SAHRC’s subpoena powers and remove unnecessary limitations. This would prevent the SAHRC from being overly cautious and enable it to utilise its full investigative potential. Empowering the SAHRC to issue binding orders directly could be another area for legislative development. However, introducing such powers must be approached cautiously to avoid diminishing the Commission’s role in fostering open dialogue and voluntary compliance. This could be achieved by making these binding powers an option rather than a standard response, reserved for cases where serious violations occur, and where reconciliation efforts have failed.   Enhancing Collaboration with Judicial Bodies     Developing protocols for better collaboration between the SAHRC and the judiciary could streamline the enforcement process. Establishing procedures for expedited judicial review of SAHRC recommendations would ensure more timely enforcement of human rights protections. This would enable the SAHRC to focus on its core functions of advocacy and education while having the support of the judiciary to enforce compliance when necessary. Such collaboration could also involve shared training initiatives to ensure that both the SAHRC and the judiciary have a common understanding of human rights issues and the best practices for addressing them.    Increasing Resources and Capacity    To fulfil its mandate effectively, the SAHRC requires adequate funding and resources. Enhanced financial support would enable the Commission to conduct more comprehensive investigations, expand public education efforts, and develop specialised units to address complex human rights issues. By increasing its capacity, the SAHRC can not only improve its investigative capabilities but also its role in public education and advocacy, further embedding a culture of human rights in South Africa.   Conclusion   The SAHRC plays a pivotal role in South Africa’s human rights framework, and its current approach, characterised by non-binding recommendations and a focus on dialogue, reflects the country’s historical and social context. South Africa's emphasis on reconciliation and restorative justice as mechanisms for addressing both past and present injustices aligns with the Commission's use of ‘soft powers’. These powers allow for a less adversarial process, encouraging cooperation, transparency, and voluntary compliance. This approach can make parties feel more comfortable engaging openly without the immediate threat of legal consequences, which might otherwise cause defensiveness or reluctance to participate. The SAHRC's role in shining a light on human rights issues, raising public awareness, and fostering societal change through dialogue and education is integral to South Africa's unique journey towards reconciliation and social cohesion.   However, there is an argument to be made for expanding the SAHRC’s enforcement capabilities to include more binding powers, especially in cases where voluntary compliance is insufficient to address serious human rights violations. Enhancing the Commission’s legal framework by establishing a tribunal could provide a means of issuing binding orders while preserving the Commission's existing soft powers. The tribunal could function separately, handling cases where legal enforcement is necessary, thereby allowing the SAHRC to maintain its advisory and reconciliatory role in other situations.   This dual approach, similar to the model used by the Ontario Human Rights Commission and Tribunal (OHRC, N.d.), could prevent undermining the SAHRC’s soft powers. Without a clear separation, there is a risk that stakeholders may default to seeking binding resolutions, thereby diminishing the Commission’s ability to use its conciliatory approach effectively. A specialised tribunal within the SAHRC would enable the Commission to leverage the benefits of both soft and hard powers, providing a comprehensive toolkit for addressing human rights violations in South Africa. Such a balanced approach would ensure that the SAHRC can continue to foster a culture of human rights through dialogue and education while having the capability to enforce compliance where necessary, thus remaining a relevant and effective institution in promoting and protecting human rights.   3. The New York City Commission on Human Rights (NYCCHR)   3.1. Introduction   The NYCCHR operates under the authority of the New York City Human Rights Law (NYCHRL), which is codified in Title 8 of the Administrative Code of the City of New York (NYC Human Rights, 2003). The NYCHRL was established to address and prevent discrimination in employment, housing, and public accommodations within New York City. The law provides a comprehensive set of protections against discrimination based on characteristics such as race, gender, sexual orientation, disability, and other protected classes.   One of the NYCCHR's primary roles is to enforce the NYCHRL, which specifically addresses discrimination in employment, housing, public accommodations, and other areas. Protected characteristics under the law include race, gender, sexual orientation, disability, and more. The NYCCHR's authority is outlined in the New York City Administrative Code, Title 8, which empowers the Commission to investigate complaints, conduct hearings, issue fines, and enforce compliance with the law.   A critical component of the NYCCHR's enforcement mechanism is its Law Enforcement Bureau (LEB), which plays a central role in investigating allegations of discrimination. When a complaint is filed, the LEB conducts a thorough investigation to determine whether there is probable cause to believe that discrimination occurred. If such a determination is made, the case is then referred to the Office of Administrative Trials and Hearings (OATH), an independent city agency that conducts administrative hearings. OATH's involvement is mandatory for cases where probable cause is established, ensuring that the hearings are conducted impartially and separately from the NYCCHR's investigative and prosecutorial arms. The NYCHRL enforces the law, and courts are also a forum where complaints can be filed alleging violations of the Human Rights Law.  istockphoto.com: 1248523239     3.2. Administrative Hearings and the Role of OATH   The NYCCHR relies on OATH to conduct formal hearings. OATH functions independently of the NYCCHR, handling cases not only from the NYCCHR but also from other city agencies. When the LEB finds probable cause of a human rights violation within the NYCCHR, the case is automatically referred to OATH for trial, where an administrative law judge presides over the proceedings. The judge's role is to issue a report and recommendation based on the evidence presented. This recommendation is then reviewed by the NYCCHR’s Office of the Chairperson (OC), which makes the final decision. This process allows for a comprehensive and fair hearing, with the OC having the authority to accept, modify, or reject the judge's recommendations.   OATH's role in the NYCCHR's enforcement framework underscores the separation of investigative, prosecutorial, and adjudicative functions within the Commission's operations. This separation helps maintain the impartiality and fairness of the hearing process. While the NYCCHR is not required to use OATH for every type of complaint, its use is mandated for cases proceeding to formal hearings following a probable cause finding by the LEB. This reliance on OATH for formal hearings ensures that the Commission's actions are legally sound, and that due process is respected.   However, many cases settle and do not go to a hearing. The Commission resolved 40% of cases in FY24 through settlement. In such cases, the parties and the Commission enter into a conciliation agreement, which is an enforceable Commission order. Some cases are also resolved through a private settlement agreement, with a notice of withdrawal filed at the Commission. Finally, cases resolved through the Commission’s Office of Mediation and Conflict Resolution are also included in these totals.   3.3. Specific Enforcement Actions and Powers   The NYCCHR has the power and authority to enforce its order without a final decision from the office of the Chairperson. These include imposing fines, mandating policy changes, requiring training, and taking corrective actions to address discrimination.   Issuing Binding Orders   The NYCCHR has the ability to issue binding orders following investigations. These orders can mandate policy changes, compulsory training, payment of damages to victims, and the imposition of civil penalties. These orders are considered to have immediate legal effect, and respondents are required to comply without needing additional judicial endorsement, even though such endorsement is necessary at times, as discussed hereunder.   The Commission on Human Rights ex rel. Estelle Stamm v E & E Bagels, Inc.  (2016) case exemplifies how the NYCCHR enforces its powers under the NYCHRL. In this case, Estelle Stamm, who has disabilities that require her to use a service dog, was denied service at Empire City Bagels. She filed a complaint with the NYCCHR's Law Enforcement Bureau, which, after investigating the claim and issuing a Probable Cause Determination, referred the matter to OATH for adjudication.   When the respondent failed to participate in the proceedings, the administrative law judge conducted a damages inquest, leading to a finding of discrimination. The judge recommended $7,000 in compensatory damages to Ms. Stamm for emotional distress and an additional $7,000 civil penalty against the respondent, along with mandatory anti-discrimination training for the employees. The NYCCHR adopted these recommendations, and further increased the compensatory damages and civil penalty to $15,000 each, demonstrating its ability to enforce compliance with its findings effectively.   This case displays the NYCCHR's enforcement capabilities, allowing it to not only make determinations but also impose binding penalties and corrective actions directly.   Issuing Fines and Penalties   As displayed above, the NYCCHR is empowered to impose civil penalties for violations of the NYCHRL. These fines can be substantial, with the Commission authorised to impose penalties of up to $125,000 per discriminatory act. For violations deemed wilful, wanton, or malicious, fines can reach up to $250,000 per act (NYC Human Rights, 2003). These penalties serve both punitive and deterrent purposes, underscoring the importance of compliance with human rights standards.   Corrective Actions and Remedies   Beyond imposing fines, the NYCCHR can require respondents to take corrective actions, such as adopting anti-discrimination policies, undergoing training, and ensuring public accommodations are accessible. The Commission can also mandate restorative justice processes to address and repair harm caused by discriminatory practices. These remedies aim to address the root causes of discrimination and foster a more inclusive environment.   Public Education and Outreach   The NYCCHR is also engaged in public education and outreach initiatives to raise awareness of human rights issues and ensure compliance with the NYCHRL. The Commission organises training sessions, workshops, and public campaigns to educate the community about their rights and responsibilities under the law. These efforts are designed to prevent discrimination by promoting a culture of respect and understanding throughout New York City.   Proactive Investigations and Testing   In addition to responding to complaints, the NYCCHR conducts proactive investigations and testing to identify and address discriminatory practices. These efforts are particularly directed at areas such as housing and employment, where discrimination may be less apparent. Through testing, the NYCCHR can gather evidence of discriminatory practices that might otherwise go unnoticed.    Enforcement through Courts   While the NYCCHR's orders are binding, the Commission may still need to seek court enforcement if a respondent fails to comply. Likewise, respondents have the right and have seen fit to apply to courts to have orders of the NYCCHR overturned or varied.   The NYCCHR can petition the New York State Supreme Court to confirm and enforce its orders. This judicial enforcement mechanism ensures that the NYCCHR’s decisions are respected, with non-compliance potentially leading to court-mandated penalties, including contempt charges. For example, in Commission on Human Rights ex rel. Desir v Walter and Empire State Realty Management, Inc. (2020), the NYCCHR successfully sought court intervention to enforce its orders and ensure compliance​.   An important aspect of judicial enforcement of decisions of the NYCCHR through the New York State Supreme Court is that the express purpose of such cases is not to try the matter de novo  in the court, but rather for the court to consider the decision of the NYCCHR as though the latter were a court itself, whose judgment was now on appeal or review. This allows for the appeal court to more expeditiously dispose of such matters and improve access to justice.   In the case of Automatic Meter Reading Corp. v New York City  (2019), the New York State Supreme Court upheld the decision of the New York City Commission on Human Rights (NYCCHR), which had found the employer liable for sexual harassment leading to constructive discharge.   The NYCCHR initially ruled that the complainant was subjected to a hostile work environment and was effectively forced to resign due to ongoing harassment. The administrative law judge at OATH found that the employer's actions were severe enough to constitute constructive discharge. When the employer appealed this decision, the Supreme Court supported the NYCCHR’s findings, including the award of $200,000 for emotional distress damages. The court's affirmation highlights the enforceability and judicial support for NYCCHR decisions.   Of course, individuals are also free to go directly to the courts, they are not required to file with the NYCCHR. However, anyone who contacts the NYCCHR and alleges a violation, must be responded to, as the Commission is a "file as of right agency".   3.4. Limitations and Challenges   Jurisdictional Scope   The NYCCHR’s jurisdiction is confined to addressing human rights violations arising from discrimination within the boundaries of New York City. While the Commission has extensive authority within the city, it cannot address general human rights violations that do not involve discrimination, nor can it address issues outside New York City. This contrasts with bodies like the South African Human Rights Commission, which can address a broader range of human rights issues beyond discrimination​.    Resource Constraints   The NYCCHR, like many governmental agencies, faces resource constraints that can affect its ability to manage a high volume of cases. Limited budgets may impact staffing, investigative capabilities, and the scale of public education and outreach efforts. These constraints necessitate prioritising cases, which can limit the Commission’s responsiveness to all complaints.   Dependence on Judicial Enforcement   Despite the binding nature of its orders, the NYCCHR may still need judicial support to enforce compliance. This results in its orders not being binding in exactly the same way a court’s orders would be, in that a person cannot be held in contempt and thus criminally liable simply for not complying with the order of the NYCCHR – the order would first need to be upheld by the New York State Supreme Court for this to happen. While judicial recourse reinforces the legal standing of the Commission's decisions, it can also lead to delays and complicate enforcement when respondents challenge orders in court. Nevertheless, the matter is not tried de novo  when it is brought for judicial enforcement, and this approach still brings the decisions of the NYCCHR very close to a court’s in respect of enforceability.   3.5. Strengths of the NYCCHR’s Enforcement Model   Robust Legal Framework   The NYCCHR’s authority under the NYCHRL provides a strong legal foundation for its enforcement actions. The power to issue binding orders, conduct thorough investigations, and impose significant penalties makes the NYCCHR a formidable force in protecting human rights within New York City.   Integrated Enforcement Mechanism   The combination of the Law Enforcement Bureau and the administrative hearing process through OATH ensures that the NYCCHR’s enforcement actions are both comprehensive and procedurally sound. This integrated approach allows the Commission to handle cases effectively from investigation through to final order, with mechanisms in place to ensure compliance.   Flexibility and Adaptability   The NYCCHR's proactive stance, including its ability to conduct testing and engage in public education, demonstrates its adaptability in addressing emerging human rights issues. This flexibility allows the Commission to respond to both individual complaints and broader patterns of discrimination, making it a comprehensive enforcer of human rights.    Conclusion   The NYCCHR is an important and effective institution equipped with significant powers to enforce the New York City Human Rights Law. Its ability to issue binding orders, conduct comprehensive investigations, and seek judicial enforcement, when necessary, makes the NYCCHR an effective guardian of human rights in New York City. Despite jurisdictional and resource limitations, the Commission’s integrated enforcement model, supported by a strong legal framework, ensures that it can effectively address discrimination and uphold the rights of all New Yorkers. By leveraging its powers and collaborating with other legal entities, the NYCCHR continues to play a vital role in promoting and protecting human rights.    4. Comparative Analysis of Enforcement Mechanisms and Recommendations: NYCCHR vs SAHRC   4.1. Jurisdiction and Scope of Mandate   A key difference between the New York City Commission on Human Rights (NYCCHR) and the South African Human Rights Commission (SAHRC) lies in the scope and nature of their mandates. The NYCCHR operates under the New York City Human Rights Law (NYCHRL), which exclusively addresses human rights violations that stem from discriminatory practices. The NYCCHR focuses on issues like employment, housing, and public accommodations but intervenes only when discrimination based on protected characteristics, such as race, gender, or sexual orientation, is involved. This focused mandate restricts the NYCCHR from addressing broader human rights issues that do not involve discrimination​.   In contrast, the SAHRC’s mandate is far broader. The SAHRC is tasked with promoting, protecting, and monitoring all human rights, not just those related to discrimination or those that were violated as a result of discrimination. This allows the SAHRC to address a wide range of human rights issues, including socio-economic rights such as access to healthcare, water, education, and housing, irrespective of whether discrimination is involved. This broader jurisdiction reflects the SAHRC's constitutional role in supporting democracy by upholding the full spectrum of human rights​.   4.2. Enforcement Mechanisms and the Binding Nature of Orders   The enforcement powers of the NYCCHR and SAHRC differ significantly in terms of immediacy and binding authority. The NYCCHR has the power to issue binding orders following its investigations into discrimination complaints. These orders can compel policy changes, require training, award damages, and impose civil penalties. While respondents have the right to challenge these orders, they are generally expected to comply, and the NYCCHR can seek enforcement through the New York State Supreme Court. The court’s role is to confirm these orders, treating the NYCCHR’s findings with the same weight as a lower court decision, thus reinforcing their binding nature​.   The SAHRC, on the other hand, faces more limitations. Although it can issue recommendations after investigations, these recommendations are not binding. The SAHRC does not seek court approval to "convert" its recommendations into enforceable orders. Instead, its recommendations are considered advisory, with no inherent legal force. If the SAHRC seeks to address human rights violations through legal avenues, it must initiate separate legal proceedings, effectively treating the matter as a new case. This separation of the investigative and judicial processes dilutes the impact of the SAHRC's investigations and recommendations, as they do not directly lead to enforceable outcomes​. If the Commission seeks enforceable outcomes, it is required to follow an entirely different legal path within its mandate – in other words, to litigate, regardless of whether it has made recommendations or not.   4.3. Use of Subpoena Powers and Compelling Evidence   Both the NYCCHR and the SAHRC have the authority to compel the production of evidence, but their approaches and the practical application of these powers differ.   NYCCHR   The NYCCHR’s Law Enforcement Bureau (LEB) actively uses its power to issue subpoenas, which compels individuals and entities to provide testimony or documents necessary for investigations into discrimination. This authority is crucial for the NYCCHR to conduct thorough investigations and support its enforcement actions, ensuring that it can gather all relevant evidence to substantiate claims of discrimination​.   SAHRC   The SAHRC is similarly empowered to compel evidence, but its use of this power has been overly cautious. The SAHRC has often sought permission or consultation from the National Prosecuting Authority (NPA) before issuing subpoenas, based on a broad interpretation of the need to avoid self-incrimination conflicts with criminal investigations. The SAHRC’s practice has been to apply this cautious approach broadly, rather than reserving it for rare cases where there is a clear risk of self-incrimination, thereby reducing the efficiency and impact of its investigations​.   4.4. Judicial Interaction and Legal Proceedings   The interaction with the judicial system is another area where the NYCCHR and SAHRC differ notably.   NYCCHR   Where the complainant has not gone directly to the Courts, the NYCCHR’s need for judicial involvement typically arises when a respondent challenges an order or when enforcement is necessary. The New York State Supreme Court reviews NYCCHR’s decisions to ensure compliance but does not retry cases. This appellate-like review process supports the NYCCHR’s authority by treating its findings as legally significant and reinforcing the binding nature of its orders. This approach reduces delays and enhances the credibility of the NYCCHR’s enforcement actions​.   SAHRC   For the SAHRC, the judicial process is more distinct and detached from its investigative functions. When the SAHRC identifies a human rights violation that requires legal intervention, it must choose whether to utilise mediation, investigation (with findings and recommendations) or litigation to address the matter. If the SAHRC decides to investigate and makes recommendations that are then not complied with, there are a number of options open to it, including the use of political pressure by approaching relevant government authorities or even Parliament for assistance. However, the only way to truly bring binding relief would be to approach the court, not for an order confirming the recommendations of the Commission necessarily, but rather to argue the case de novo  and ask the court for relief based on the law and facts, essentially restarting the process. This separate legal proceeding treats the matter independently of the SAHRC's investigative findings, undermining the direct impact of its recommendations.   The NYCCHR’s ability to issue binding orders and enforce them through a streamlined judicial review process makes it a potent enforcer of anti-discrimination laws. This direct enforcement mechanism offers immediate legal consequences for non-compliance, which can deter discriminatory practices effectively. However, the SAHRC's approach, characterised by its reliance on issuing advisory recommendations and pursuing separate legal action, if necessary, should not simply be seen as a weakness or a lack of authority.   The SAHRC's softer approach, which relies on persuasion, influence, and public awareness, aligns with South Africa's broader historical context of reconciliation and restorative justice. This model allows the SAHRC to engage with parties in a less adversarial manner, encouraging dialogue and voluntary compliance. The non-binding nature of its recommendations can foster an environment where individuals and organisations feel more comfortable participating in the process without the immediate fear of legal repercussions. This openness can lead to greater transparency, a willingness to acknowledge issues, and cooperative efforts to rectify human rights violations. By shining a light on issues and raising public awareness, the SAHRC plays a crucial role in shaping societal attitudes and behaviours, which can lead to long-term cultural and policy changes. The above also fits neatly into South Africa’s constitutional system, which provides numerous avenues through which to enforce human rights, including specialised courts and tribunals such as the Equality Court, Children’s Court and Commission for Conciliation, Mediation and Arbitration, and numerous ombudsman services at national, provincial and local level.   While the SAHRC’s current model prioritises these softer, reconciliatory methods and has a place in the South African legal system, practical experience has demonstrated that this approach has not been very effective – for example, individuals and government departments often simply ignore the findings and recommendations of the SAHRC. And although the aforementioned challenge may speak more to the overall constitutional and human rights landscape in South Africa, than to specific weaknesses in the SAHRC’s strategical and operational model, there is still room to consider complementing its toolkit with additional enforcement options. Introducing mechanisms such as a specialised tribunal within the SAHRC, which could issue binding orders in specific cases, would provide a balance between soft power and more robust enforcement. This would allow the Commission to maintain its emphasis on reconciliation and education while having the capacity to ensure compliance when voluntary measures fail.   4.5. Structural and Resource Challenges   Both the NYCCHR and SAHRC face structural and resource constraints, but these challenges are framed by their differing mandates.   NYCCHR   Operating within the boundaries of New York City and focusing exclusively on discrimination cases allows the NYCCHR to channel its resources more effectively. However, the high demand for its services in a densely populated city poses challenges. Despite these challenges, the NYCCHR's focused mandate and structured use of its Law Enforcement Bureau enable it to respond effectively to discrimination complaints​.   SAHRC   The SAHRC’s broader mandate covers all human rights across South Africa, which presents a more significant, or at least, a very different kind of challenge. The SAHRC’s ability to conduct comprehensive investigations, monitor compliance, and engage in public education is often hampered by limited funding and staffing. These constraints necessitate collaboration with other institutions and reliance on civil society to extend its reach. The breadth of its mandate, while necessary for addressing the full spectrum of human rights, strains the SAHRC’s capacity to enforce these rights effectively​.   In addition to the above, from a broader human rights perspective, South Africa arguably has a harsher human rights landscape than the USA, both at national and more localised levels. While the USA has significant human rights challenges of its own, one must accept that the levels of poverty, unemployment, lack of state resources, and inequality in South Africa far outweigh those in the USA. This fact alone has a significant influence on the effectiveness of National Human Rights Institutions (NHRIs) in South Africa to address human rights challenges as compared to nations like the USA.    5. Conclusion   The NYCCHR and SAHRC play crucial roles in protecting human rights within their jurisdictions, but their approaches and effectiveness differ significantly due to their distinct mandates and enforcement powers. The NYCCHR’s focus on discrimination and its ability to issue binding orders that can be enforced through judicial support makes it a robust enforcer of anti-discrimination laws. The SAHRC’s broader mandate to address all human rights issues, coupled with its non-binding recommendations and reliance on separate legal proceedings, potentially dilutes its effectiveness as an immediate enforcer of rights, while nevertheless not denying the SAHRC the ability to work for change and, as suggested in this paper, to find additional ways to enforce its mandate.    References   AfriForum v South African Human Rights Commission (14370/2019; 31328/2019), ZAGPJHC 807; 2023 (6) SA 188 (GJ). 2023. [Online] Available at: https://www.saflii.org/za/cases/ZAGPJHC/2023/807.pdf [accessed: 25 August 2024]   Automatic Meter Reading Corp. v New York City, No. 162211/2015, 63 Misc. 3d 1211(A), 2019 N.Y. Slip Op. 50464(U), 2019 WL 1475080. 2019. [Online] Available at: https://caselaw.findlaw.com/court/ny-supreme-court/1989750.html [accessed: 25 August 2024]   Commission on Human Rights ex rel. Desir v Walter and Empire State Realty Management, Inc., Complaint No. M-H-S-17-11067, OATH Index No. 1253/19. 2020. [Online] Available at: https://www.nyc.gov/assets/cchr/downloads/pdf/decisions-and-orders/Desir_D&O_SIGNED_Redacted.pdf [accessed: 25 August 2024]   Commission on Human Rights ex rel. Estelle Stamm v. E & E Bagels, Inc., Complaint No. M-P-D-12-1026467, OATH Index No. 803/14. 2016. [Online] Available at: https://www.nyc.gov/assets/cchr/downloads/pdf/decisions-and-orders/Commission%20on%20Human%20Rights%20ex%20rel%20%20Stamm%20v%20%20EE%20Bagels%20--%20Decision%20and%20Order.pdf [accessed: 25 August 2024]   NYC Human Rights. N.d. Enforcement . [Online] Available at: https://www.nyc.gov/site/cchr/enforcement/enforcement.page [accessed: 25 August 2024]   NYC Human Rights. N.d. Rules of Practice. [Online] Available at: https://www.nyc.gov/site/cchr/law/title-47-index.page [accessed: 25 August 2024]   NYC Human Rights. 2003. New York City Administrative Code, Title 8: Civil Rights . [Online] Available at: https://www.nyc.gov/assets/cchr/downloads/pdf/Title-8-Text-of-the-Law.pdf [accessed: 25 August 2024]   Ontario Human Rights Commission (OHRC). N.d. Litigation and inquiry strategy . [Online] Available at: https://www.ohrc.on.ca/en/about-commission/litigation-and-inquiry-strategy [accessed: 25 August 2024]   South African Government. 1996. Constitution of the Republic of South Africa, 1996. [Online] Available at: https://www.gov.za/documents/constitution-republic-south-africa-1996 [accessed 25 August 2024]   South African Government. 2013. South African Human Rights Commission Act, Act No.40 of 2013, Government Gazette , 583(37)   South African Human Rights Commission v Agro Data CC (1448/2021), ZAMPMBHC 58. 2022. [Online] Available at: https://www.saflii.org/za/cases/ZAMPMBHC/2022/58.pdf [accessed: 25 August 2024]   Supreme Court of Appeal. 2024. South African Human Rights Commission v Agro Data CC & Another (Afriforum, Centre for Applied Legal Studies and Commission for Gender Equality intervening as Amici Curiae) (39/2023) ZASCA 121 . [Online] Available at: https://www.supremecourtofappeal.org.za/index.php/component/jdownloads/summary/94-judgements-2024/4300-south-african-human-rights-commission-v-agro-data-cc-another-afriforum-centre-for-applied-legal-studies-and-commission-for-gender-equality-intervening-as-amici-curiae-39-2023-2024-zasca-121-15-august-2024 [accessed: 25 August 2024]        - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - This report has been published by the Inclusive Society Institute The Inclusive Society Institute (ISI) is an autonomous and independent institution that functions independently from any other entity. It is founded for the purpose of supporting and further deepening multi-party democracy. The ISI’s work is motivated by its desire to achieve non-racialism, non-sexism, social justice and cohesion, economic development and equality in South Africa, through a value system that embodies the social and national democratic principles associated with a developmental state. It recognises that a well-functioning democracy requires well-functioning political formations that are suitably equipped and capacitated. It further acknowledges that South Africa is inextricably linked to the ever transforming and interdependent global world, which necessitates international and multilateral cooperation. As such, the ISI also seeks to achieve its ideals at a global level through cooperation with like-minded parties and organs of civil society who share its basic values. In South Africa, ISI’s ideological positioning is aligned with that of the current ruling party and others in broader society with similar ideals. Email: info@inclusivesociety.org.za Phone: +27 (0) 21 201 1589 Web: www.inclusivesociety.org.za

On Friday, 1 November 2024, the Inclusive Society Institute's Patrick Morathi facilitated a thought-provoking workshop for the Grade 11 learners of Mapenane High School, delving deep into the history, structure, and practical applications of South Africa's foundational legal document - the Constitution. This timely workshop was perfectly aligned with the learners' Life Orientation and History curriculum, providing a valuable opportunity to move beyond the textbook and explore the real-world relevance of this seminal document. Throughout the workshop, Morathi skillfully guided the learners through a comprehensive examination of the Constitution's Preamble, as well as the nation's revered symbols, such as the National Anthem and Flag. By fostering an engaging and interactive environment, Morathi empowered the learners to actively participate, asking insightful questions and sharing their own perspectives on the issues at hand. This dynamic exchange not only deepened the learners' understanding of the Constitution but also instilled in them a heightened sense of their rights and responsibilities as young citizens of South Africa. The workshops, which are currently being rolled out in schools across Gauteng's Tshwane West District, aim to teach, motivate, inspire, and encourage learners, while also building and supporting them in the areas of Values in Education and Social Cohesion. Morathi's facilitation was marked by his ability to navigate these sensitive discussions with care and sensitivity, ensuring that each learner felt empowered to voice their opinions and concerns without fear of judgment or repercussion. The Inclusive Society Institute extends its heartfelt gratitude to the district officials, teachers, and learners of the various high schools visited so far, for their invaluable cooperation and support. As the learners prepare for their upcoming exams, the institute wishes them the very best in their academic endeavors, confident that the insights gained from this transformative workshop will serve as a solid foundation for their continued growth and success as engaged and informed citizens of South Africa.

The Inclusive Society Institute's Patrick Morathi facilitated an impactful and engaging workshop for 168 Grade 11 learners at Setlalentoa High School on Monday, 4 November 2024. This workshop was specifically designed to empower these young students with a deeper, more comprehensive understanding of South Africa's foundational legal document – the Constitution. Going beyond the textbook, the workshop provided valuable real-world context and relevance, delving into the Preamble, National Symbols like the Anthem and Flag, and the importance of key civic values and social cohesion. As the session progressed, the learners grew increasingly captivated, actively participating by asking thoughtful questions and sharing their own perspectives on the issues highlighted. The facilitator skillfully navigated these discussions, ensuring each student felt empowered to voice their opinions and concerns. By the end, the learners left with a heightened sense of awareness regarding their rights and responsibilities as young citizens of South Africa. This workshop is part of a broader initiative by the Inclusive Society Institute to roll out similar sessions across the Tshwane West District of Gauteng, with the ultimate goal of instilling a profound appreciation for the Constitution and fostering proud, engaged citizens. The institute has observed that many schools no longer regularly hold assemblies that include the singing of the National Anthem, the raising of the National Flag, and the recitation of the Constitution's Preamble. They are therefore encouraging all schools to reinstate these practices, as they believe these simple yet powerful acts can go a long way in cultivating a deep sense of national pride and civic responsibility among the learners. As the Inclusive Society Institute looks ahead to the new academic year of 2025, they remain committed to building on the success of this workshop and continuing to empower South Africa's youth to become active, informed, and engaged citizens who uphold the values enshrined in the country's foundational document.

Documents Nov 1-3, 2024 - 22nd Conference on International Exchange of Professionals - Presentation by Daryl Swanepoel May 8, 2024 - MyVoteCounts - How to fund democracy Nov 23, 2023 - Social Cohesion Framework - presentation by Commissioner Abba Omar Sep 15, 2023 - Speech: Resilience for the world and a global resilience council for the UN - speech by Buyelwa Sonjica May 10, 2023 - NalHisa dialogue of bridging the gap - speech by Daryl Swanepoel May 31, 2023 - Presentation: Southern Africa Trust - Reflections on poverty & inequality post Covid Jun 22, 2024 - ACUNS speech by Daryl Swanepoel Jan 31, 2024 - JIPP 4.1 Nov 23, 2023 - Social Cohesion Framework Document May 03, 2023 - Presentation by Daryl Swanepoel at Istanbul Security Forum May 11, 2023 - Struggling to get going (Presentation at Business Circle launch) Sep 13, 2022 - Analysis of Constitutional issues pertaining to the Electoral Amendment Bill May 10, 2024 - Anniversary celebrations of former President Mandela's inaugural speech of 10 May 1994 Feb 6, 2024 - Presentation: Electoral Matters Amendment Bill - Submission to Home Affairs Portfolio Committee Sep 15, 2023 - Speech: Institutional reform needed to deal with global challenges - Daryl Swanepoel May 03, 2023 - Beyond Colonialism: Türkiye's Unique Approach to Africa May 31, 2023 - Presentation: Multi-dimensional inequality in South Africa

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Embracing a society that is built on social and national democratic values Public Policy Research & Analysis Democratic Education, Briefings, Seminars & Conferences Publications & Liberation Archive Portal Featured Activity Conference Africa Consultative Meeting (ACM), 26-28 February 2024, Cape Town Our Latest Activities Nov 13 Release of Occasional Paper COMPARATIVE STUDY: Enforcement mechanisms of the New York City Commission on Human Rights and South African Human Rights Commission Nov 4 Civic Education Taking the Constitution to the People - Setlalentoa High School, Zone 5 Ga - Rankuwa, Tshwane West District Nov 1 Civic Education Taking the Constitution to the People - Mapenane High School, Zone 16 Ga - Rankuwa, Tshwane West District Up