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DECISION OF THE AFRICAN COMMl1SSION ON HUMAN
AND PEOPLES' RIGHTS ONADMISSIBILITY
C,O MMU N 1:CATION 784/22
1
1
Mashilo Alfred Sako
V
The Republic of South Africa
Adopted by the:
African Commiasion on Human and People8 •Righta
During the BJRI' Orrlinary Session ofthe African Commission on Human and Peoples Righta held from 2
to 22 May 2025, Ban}fll. The Gambia.
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The African Commission on Human and Peoples' Rights
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Phone: (220) 230 4361 Fax: (220) 441 05 04
Email: au-banjul@africanunion.org
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Human Rights our
Collective Responsibility
DECISION OF THE AFRICAN COMMISSION ON
HUMAN AND PEOPLES' RIGHTS ON ADMISSIBILITY
COMMUNICATION 784/22 - Mashilo Alfred Sako v.
The Republic of South Africa
Summary of the facts
1. The Secretariat of the African Commission on Human and Peoples' Rights (the
Secretariat) received on 25 February 20?2 aI Qommunication presented by Mr.
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Mashilo Sako (the Complainant), a citizen of the Republic of South Africa
(Respondent State), represented in this Communication by Mr. Shadrack Tebeile,
Advocate at the High Court of South Africa.
2. The complairit is filed against the Republic of South Africa, a State that became a
party to the African Charter on Human and Peoples' Rights (the Charter) on 9 July
1996.
3. The Complainant avers that the Respondent's Department of Education appointed
him as an educator from 1992 until his dismissal from employment in 2004 for
failure to observe examination rules.1
4. The Complainant alleges that after his dismissal, he made several attempts to
appeal against the decision to terminate his employment with the former Member
of the Executive Council (MEC) of Education in the Limpopo Province and was
unsuccessful.
1 Complainant's Observations on Admissibility and Merits, para 42.
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5. The Complainant further alleges that his dismissal from employment had adverse
effects on his personal life as he could no longer provide for his wife and three
children, which led to their separation.
6. The Complainant alleges that he attempted to reapply to be admitted as an
educator based on information from his former coUeagues that it was possible to
return to the Department of Education as an educator.
7. This resulted in him being recruited as an educator at Mosi~are Secondary School
in the North-West Province from March to December 2012. However, he was not
remunerated as he was yet to be pardoned by the Limpopo Department of
Education. His Persal Number was still blocked due to the dismissal.
8. The Complainant alleges that, between November and December 2015, he was
appointed to Gaenthone Secondary School. The Complainant was compelled to
abandon this post as he established that his Persal Number2 was yet to be
unblocked, which meant he still could .not get paid.
9. It is further alleged that in 2016, the Complainant applied for his Persal Number to
be unblocked by the Limpopo Provincial Treasury, and in 2019, he applied for a
Pardonand Clearance Certificate. According to the Complainant, the Pardon and
Clearance Certificate was granted in 2020.
10. The Compltlil ~,;mt avers that in May 2021, he applied for a temporary teaching post
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at Mashupye Tladi Primary School and was shortlisted for an interview. Thereafter,
he was notified that he had been recommended for appointment to the position.
2
A Persal Number is a unique system generated eight-digit number assigned to each em
appointed on the persal system. A persal system is a standardized Human Resource
for all the Central Government Departments in South Africa.
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11. The Complainant stipulates in his communication that thereafter, he waited for an
approval letter, which he did not receive. Upon making a follow-up, he was advised
that another candidate had already occupied the position.
12.Eventually, the Complainant filed an application with the High Court, Limpopo
Division, for the matter to be heard as urgent, seeking the following orders:
i.
That the Honourable Court condones noncompliance with the forms of
service provided for in the Uni~9tlfr RiJles Q( Court and that the Honourable
Court dispensed with same anJ:[;the applica,tlQP be heard as urgent in terms
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of Rule 6(12) of the Uniform Rules of Court( •
ii.
That the application be enrolled and heard as urgent in terms of Rule 6(12)
of the Uniform Rules of Court.
iii.
That the first Respondent's decision to appoint the fifth Respondent as a
temporary educator at Mashupye Tladi Primary School be declared
unlawful and invalid and be reviewed and set aside.
iv.
That it be declared that the Complainant is pardoned and cleared as per
Pardon and Clearance letter issued by the sixth Respondent dated 16
March 2020 entitled "Rfi.'Q!JEST FOR PARDON AND CLEARANCE -AM
SAKO."
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That it be ordered that the Complainant's Persal Number 80449913 be
unlocked or unblocked by the first Respondent within five (5) days from the
date of this order.
vi.
That the first Respondent be ordered to make the appointment of a
temporary educator at Mashupye Tladi Primary School as per the
recommendations of the fourth Respondent within five (5) days from the
date of this order.
vii.
That any Respondent opposing the application be ord
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of the application, including the cost of two counsel.
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Further and/or alternative relief.
13. On 28 September 2021, the High Court dismissed this application on the basis that
it was not urgent.
14. The Complainant filed an application at the Constitutional Court seeking for the
court to dispense with the normal rules pertaining to the set down of the application,
for the application to be enrolled and heard as urgent, and that if an order for direct
access is granted, the same orders sought in the High Court be granted by the
Constitutional Court. 3 The Constitutional Court dismissed the application on 13
October 2021 .
15. On 25 February 2022, the Complainant filed a communication with the
Commission.
Alleged violations:
16. The Complainant alleges a violation of Article 1, Article 7(1 ), Article 7(1 )(a), Article
13(2), Article 13(3) and Article 15 of the African Charter.
Prayers:
17. The Complainant requests the Commission to:
a. Declare that the Respondent violated the Complainant's rights under
Articles 1, 7(1); 7(1)(a), 13(2), 13(3) and 15 of the African Charter on
Human and Peoples' Rights;
b. Declare that the Complainant is pardoned and cleared as per the Pardon
and Clearance letter issued by the Respondent dated 16 March 2020
entitled "REQUEST FOR A PARDON CLEARANCE - AM SAKO" attached
hereto and marked as Annexure "FA 1n;
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c. Order the Respondent to unblock or unlock the Complainant's Persal
Number 80449913 within five (5) days from the date of this Order;
d. Order the Respondent to pay the Complainant compensation in the amount
of R140 019.00 with interest at a rate of 15% per annum calculated from
01 January 2022 and which amount of R140 019.00 is an amount
equivalent to a salary of a period from 02 July 2021 .to 31 December 2021
for a temporary teaching post at Mashupye Tladi Primary School in
Limpopo Province;
e. Order the Respondent to pay the Complaincmt's /~gjJJ.costs in the High
Court of South Africa, Limpopo Division, Polokwane, and in the
Constitutional Court of South Africa, including the costs of the two counsel
in both courts;
f.
Order the Respondent to pay 'the Complainant's legal costs in this
Commission;
g. Order any costs as•it deem$litto grant in the circumstances.
Procedure
18. The Secretariat of the Commission 'received the complaint on 25 February 2022
ar:id acknowle~ged its receipt on 3 March 2022 through a letter Ref:
AG!t:IRRLSTC/COMM/183/22.
19. The d_ecision to seize the complaint was taken during the 71 st Ordinary Session,
which took place in Banjul, The Gambia, from 21 April 2022 to 13 May 2022 and
was notified to the parties through a letter dated 13 June 2022. The Complainant
was requested to submit his arguments and evidence on admissibility within sixty
(60) days.
20. On 23 June 2022 , the Complainant submitted its observations o
Merits, which were transmitted on 7 March 2023 to the Respon
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21. On 26 April 2023 and 8 June 2023, the Respondent State requested an additional
thirty (30) days to make submissions on admissibility.
22. On 23 June 2023, the Respondent State requested an oral hearing on the
admissibility and merits of the Communication to clarify South Africa's legal
system. The Commission did not grant this request.
23. The Respondent State submitted its arguments on Admissibility on 7 July 2023
and elected not to include arguments on the merits.
24. On 16 April 2024, the Secretariat, through Note V~!Pale, wrote to the Respondent
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State, granting it thirty (30) days l~ amend its ~Llbmissions on admissibility to
include arguments on the merits. How,13.ver, the Respondent State opted to
dispense with this option, electing to only ·rnake submissions on the merits after
the Commission had determined the admissibility of the complaint.
25. On 19 June 2024, the Secretariat, via letter, transmitted the Respondent State's
submission4 on Admissibility to the Complainant and gave him thirty (30) days to
submit a rejoinder.
26. The Complainant did not file any submissions in rejoinder.
Complainant's Submissions on Admissibility
27. The Complainant submits that the Communication fulfils the conditions of
admissibility provided for in Article 56 of the African Charter as indicated below.
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Respondent State violated the Complainant's rights under Articles 1, 7(1 ), 7(1 )(a),
13(2) and 13(3) of the African Charter. 4
29. The Complainant submits that the complaint is compatible with the Constitutive Act
of the African Union and the African Charter. He argues that the violations in the
present complaint are related to the human rights which fall within the ambit of the
Charter, which guarantees such rights. Therefore, the Communication satisfies the
threshold of Article 56(2) of the African Charter. 5
30. The Complainant submits that the co,m,µJ~lht ·coJl;!Plies with Article 56(3) of the
African Charter as the allegations against ttie . Respondent State are not
derogatory, nor are they in a disparaging or insulting language.6
31. The Complainant further submits that the alleged violations presented in the
complaint are not based exclusively on news ·d1~$-~minated through the mass
media but are based on legal and administrative decisions by authorities and
institutions within the territorial jurisdiction of the Respondent State. It therefore
follows that the complaint meets the requirements provided for in Article 56( 4) of
the African Charter. 7
32. The Complainant asserts that the complaint was filed after exhausting local
remedies. The Complainant alleges that the case went through the domestic courts
in the Respondent State until the highest court, the Constitutional Court. The
Complainant reiterates that the matter reached the Constitutional Court, which_
means thaLthe matter has been adjudicated to the highest cou
country, a distinct indicator of the exhaustion of local remedies.
4 Complainant's Observations on Admissibility and Merits, para 19 and 20.
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5 Complainant's Observations on Admissibility and Merits, para 22 and 23.
6 Complainant's Observations on Admissibility and Merits, para 24 and 25.
7 Complainant's Observations on Admissibility and Merits, para 26.
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33. The Complainant avers that he brought an urgent application to the High Court of
South Africa, Limpopo Division, on 3 September 2021 under Case Number
6403/2021. On 28 September 2021, the High Court decided that the matter was
not urgent. Consequently, the Complainant approached the Constitutional Court
on 29 September 2021 under Case Number CCT 302/2021 and sought an order
for direct access on an urgent basis. However, qn 1,.3 October 2021, the
Constitutional Court dismissed the application on .,tffie,basis ffijt it was not urgent.
As a result, the complaint meets the requirem~'6(§ .o f Article ,5~(5) of the African
Charter on admissibility. 8
34. The Complainant submits that the Constitutional Court delivered its Order on 13
October 2021, and the complaint was subsequently filed before the end of
the permissible threshold
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requirements in Article §6(,&} of theAfricanCharter. 9
35. Finally, the Complainant argues that the issues raised in his complaint have not
been settled l:>y any other entity, in accordance with the principles of the Charter
of the United Nations, the Constitutive Act of the African Union, or the provisions
of the African Charter as provided for in Article 56 (7) of the African Charter. 10
Respondent State's Submissions on Admissibility
36. The Respondent State did not delve into detail concerning most of the
requireme~~ under Article 56 of the African Charter but primarily foe
fifth requirJ1~nt under Article 56(5) of the African Charter on th
local remedies.
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Complainant's Observations on Admissibility and Merits, para 38 and 39.
1°Complainant's Observations on Admissibility and Merits, para 40 and 41.
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37. The Respondent State argues that Article 50, as read with Article 56 of the African
Charter, provides that the African Commission on Human and Peoples' Rights can
only adjudicate a matter submitted to it after ensuring that all domestic remedies
(if any) have been exhausted.
38. The Respondent State disputes the arguments by the Complainant that he has
exhausted domestic remedies simply because his case has been through the
domestic courts in the Republic of South Africa until he reached the Constitutional
Court. 11
39. The Respondent State submits that Article 56(5) of the African Charter imposes a
strict requirement that an individual ought to seek redress for harm allegedly
caused by a state within its domestic legal system before pursuing international
proceedings.
40. The Responde11t State further submits that in terms of the South African legal
system, an order striking off a matter from the roll is not final because the merits
of the matter have not been adjudicated. 12
41. The Respondent State further argues and cites jurisprudence from the South
African courts, specifically the decision in the case of Thembane Cleaning
Services CC v Johannesburg Road Agency and Another.13 The Gauteng
Division of the High Court of South Africa's ruling in this case was to the effect that
the Order which was appealed against did not dispose of any issue; n •
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final or definitive of the parties' rights. 14
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12 Respondent State's Observations on Admissibility, para 29.
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14 Respondent State's Observations on Admissibility, para 30.
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African Commission on
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Human Rights our
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42. In light of this, the Respondent State submits that the Complainant could not
successfully appeal against the Order in terms of Section 17( 1) of the Superior
Court Act, No. 10 of 2013. However, the Respondent State notes that the
Complainant still had the option to set the matter down again for hearing, but with
stricter compliance with the rules and procedures of the South African courts. 15 If
this avenue had failed , he still had the option to appeal a decision on the merits to
the Supreme Court of Appeal or the Full Bench of the High Court and,
subsequently, the Constitutional Court, if the appeal had been rendered
unsuccessful.
43. The Respondent State further argues that the Complainant-had the prerogative to
enroll his application on the normal co(nf roll in terms of the practice manual of the
Polokwane High Court and set his matter down for hearings as the merits were not
yet determined. 16
44. The Respondent State submits that in addition to the Complainant having the
option to set the matter on the normal court roll, the South Africa Uniform Rules of
Court grant a Respondent in a motion proceeding to enroll a matter for hearing on
the Roll if the Applicant in a matter fails to apply for the date, before approaching
tbebonstitutional
Court on an urgent basis to set aside the order handed down by
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15 Respondent State's Observations on Admissibility, Para 31; The Respondent St
Johannes Jacobus Roets NO and Another v SB Guarantee Company (RF) (Pty) Ltd and
[2022] ZAGPJHC 720 (6 October 2022) wherein the court held that if a matter is
urgency, an applicant can simply set the matter down again on proper notice in
rules.
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16 Respondent State's Observations on Admissibility, para 33.
17 Respondent State's Observations on Admissibility, para 34-36.
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45. Lastly, the Respondent State argues that the Complainant could seek redress from
the Labour Court for an order to unblock his Persal Number in terms of the Basic
Conditions of Employment Act No. 75 of 1997. 18
46. The Respondent State submits that the Commission needs to be guided by the
principle of the primacy of domestic remedies in rec1ching its decision. The
Respondent State also submits that it has adequately demonstrated the availability
of judicial remedies that the Complainant could have utilise~ before filing the
complaint.
47. The Respondent State contends that the Commission hai:t sufficient grounds to
render the complaint inadmissip.le as it does not meet the requirements of Article
56(5) of the African Charter.
Law
Analysis of the Commission
48. Article 56 of the African Charter provides that communications submitted under
Article 55 ot''tl'te African Charter shall be considered if they satisfy the seven (7)
con~jtions of admissibility set out therein. The requirements are conjunctive and
sHb,yldit:,,~r11,,i~wed cumulatively, such that a failure to meet any of the requirements
ren ·~"'- a communication inadmissible. 19
49. The Commission considers the submissions of the parties in light of these
requirements as follows:
18 Respondent State's Observations on Admissibility, para 42.
19 Communication 284/03: Zimbabwe Lawyers for Human Rights & Associated News
v Republic of Zimbabwe (2009) ACHPR para 81.
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50.Article 56(1 ) of the African Charter requires that a communication 'indicate its
authors even if the latter request anonymity.' The practice and jurisprudence of the
Commission posits that the provision requires the Complainants to provide their
identity20 and contact details21 so that the communication is processed adequately.
This also provides an avenue for communication with the parties to ensure
continued interest in the matter or to request additional information that may be
required pertaining to the communication. 22 In the present case, Mashilo Alfred
Sako is identified as the complainant, represented by Advocate Shadrack Tebeile.
Therefore, the parties are sufficiently identified, and the communication duly
complies with Article 56 ( 1) of the African Charter-'
Article 56(2)
51 .Article 56(2) of the African Charter requires a Communication to be compatible
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with the Charter of the African Union or the Charter~{ij'.tJrthermore, the Commission
has interpreted this provision to include compatibility with the four (4) aspects of
its competence, namely competence ratione personae, materiae, temporis and
loci. 23 The Commission is satisfied that this communication satisfies the four
aspects necessary to establish jurisdiction. The Commission notes that the
communication was introduced against the Respondent State, a party to the
African Charter (competence ratione personae)24 , alleges the violation of rights
provided for in the Charter, in particular Articles 7(1 ), 7(1 )(a), 13(2), 13(3) and 15
(competence ratione materiae) of the African Charter, alleges that the violation
was committed in the territory of the Respondent State (competence ratione loci)
20 Communication 308/05: Michael Majuro v Zimbabwe, 24 November 2008, para 71.
21 Communication 70/92: lbrahima Dioumessi, Sekou Kande, Ousmane Kaba v Guinea, 7
para 11.
22 Communication 277/03: Spilg and Mack & Ditshwanelo (on behalf of Lehlohonolo
Botswana, 12 October 2013, para 97
Ahmed Ismael and 528 others v. the Arab Republic of E
para 138.
24 Refer to Paragraph two (2) of these submissions.
23 Communication 467/14 -
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and that the alleged violation occurred after the Respondent State ratified the
African Charter (competence ratione temporis). 25
52.Additionally, the Commission notes that the communication seeks the protection
of human rights and is, in turn, compatible with Article 3(h) of the Constitutive Act
of the African Union. Therefore, nothing in the Complainant's submissions reveals
any incompatibility with the African Union Constitutive Act or the African Charter. 26
In view of the foregoing, the Complainant has satisfied Article 56(2) of the African
Charter.
Article 56(3)
53. Regarding the language used, Article 56(3) of the African Charter provides that
communications shall not contain disparaging or insulting language directed to the
Respondent State, its institutions or the African Union. In Zimbabwe Lawyers for
Newspapers o,t
Zimbabwe v Republic of
Human Rights & Assqciated
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Zimbabwe, the Commission held that "in determining whether a certain remark is
disparaging or insulting and whether it has dampened the integrity of the judiciary,
the Commission has to satisfy itself whether the said remark or language is aimed
at unlawfully and intentionally violating the dignity, reputation or integrity of a
judicial officer or body and whether it is used in a manner calculated to pollute the
minds of i1J1tt. public or any reasonable man to cast aspersions on and weaken
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public confidence on the administration of justice." 27 The Commission has satisfied
itself that in the present case, the Complainant did not use any language
underminirig the integrity and status of the institution being complained against and
bringing it 1qt9 disrepute. 28 Consequently, this condition of admissibility is fulfilled.
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25
Communication 266/03: Kevin Mgwanga Gunme et al/ Cameroon, 27 May 2009, par
26 Gozbert Henerico v. Federal Republic of Tanzania, ACtHPR, Case No. 056/ 2016, Jud
2022 (Merit and Remedies), para 65.
27 Communication 284/03: Zimbabwe Lawyers for Human Rights & Associated Newspa
v Republic of Zimbabwe, 3 April 2009, para 91.
28 As above.
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Article 56(4)
54.Article 56(4) of the African Charter provides that communications should not be
'based exclusively on news disseminated through the mass media.' In interpreting
this provision, the Commission has acknowledged the importance of mass media
as a source of information and reiterated that the issue of concern is whether the
information obtained from the media is correct and the veracity of the allegations
from it. 29 The Complainant produced court documents as evidence and has not
relied exclusively on news disseminated through the mas$ rnedia. Thus, this
communication satisfies the provisions of Article 56(4) of theAfricc3nCharter.
Article 56(5)
55. Concerning the exhaustion of domestic remedies, Article· 5~t§) of the African
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Charter provides that communications may only be admitted affbr 'exhaustion of
local remedies if they exist unless,Jt is obvious that this procedure is unduly
prolonged.'
56. The rationale behind Article 56(5) of the Africa
harter is to give state parties the
first responsibility to resolve allegations of human rights violations using their
domestic remedies and within their domestic legal system. 30 This is informed by
the principle of the subsidiarity of the international adjudicatory system. 31 The
settled jurisprudence of the Commission shows that this is one of the most
important conditions for the admissibility of communications. 32
57. The Commission has further established that these domestic remedies must be
available, in that they can be used by the Complainant without impediment;
29 Communication 147/95-149/96: Sir Dawda K. Jawara v Gambia (The), 11 May 2000, para 26.
30 Communication 292/04 - Institute for Human Rights and Development in Africa/ Angola (2008) ACHPR
para. 38.
31 Guide to the African Human Rights System available at
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effective, because they offer a prospect of success; and sufficient, because it is
capable of fully redressing the alleged violations.33
58. The Complainant argues that he exhausted all available local remedies because
he utilised the legal system up to the apex court, that is, the Constitutional Court.
59. On the other hand, the Respondent State submits that while the Complainant filed
a case in the Constitutional Court, the matter was dismissed on a technicality.
Thus, the Complainant still had the opportunity to file an application on the normal
roll from the High Court and appeal, if the outcome was undesirable, up to the
Constitutional Court.
60. The Respondent State further submits that c3·ccording to the domestic legal system
of the Republic of South Africa, it is trite law that when a case is struck off the roll,
it is unappealable per the Thembane Cleaning Services judgment referenced
above.34 Therefore; the procedure to approach the Constitutional Court of South
Africa was misplaced and premature.
61 . In this Communication , the Commission concurs with the Respondent State's
assertions and notes that after the urgent application was struck off the roll, the
Complainant did not take the necessary steps to file the application on the normal
court roll and allow the necessary court processes to unfold. This would have
allowed for the matter to be adjudicated on the merits, which, if dismissed, could
have been appealed against at the Supreme Court of Appeal. However, the
Complainant did not do so.
62. In Jawara v The Gambia , the Commission highlighted that in
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34 Paragraphs 40 and 41 of these submissions.
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Human and Peoples' Rights
Human Rights our
Collective Responsibility
remedy and can pursue it without impediment. 35 The Complainant is legally
represented and should therefore have effectively exhausted all known and
available local remedies through the assistance of his representatives.
63. The Commission notes that, indeed, according to the South African legal system ,
the Complainant had the option of approaching the Labour Court for relief to get
his Persal Number unblocked . However, he did not utilise this procedure.
64. Furthermore, the South African Uniform Rules of Court grant a Respondent in a
motion proceeding to enroll a matter for hearing on the roll if the Applicant in a
matter fails to apply for the date. While this may be an unlikely occurrence on the
part of the Respondent, who may not have any direct interest in ensuring the
finalisation of this matter, it buttresses the notion that there were other available
avenues the Complainant could have benefited from , in exhausting domestic
remedies, before approaching the Cornmis~ion.
65. In any event, the Commission ta~~ cognisance of the fact that the Complainant
did not actively prosecute his claim from the beginning to justify his cases being
heard on an urgent basis. This situation arose after his dismissal in 2004. However,
the Complainant did not actively and urgently prosecute the matter until 2021.
Instead, ;he relied on unofficial information from third parties as opposed to
following due process. The Complainant should have followed the proper court
proceedings and exhausted all local remedies. There was no apprehension of any
injustice iij" exhausting local remedies, which would warrant an exception to the
mandatory rule.
66. In Obert Chinhamo v Zimbabwe, the Commission drew inspiration from the UN
Human Rights Committee which stated that "the mere fact that a domest_if remedy
is inconvenient or unattractive, or does not produce a re
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35 Communication 147 /95 and 149/%-Sir Dawda K Jawara v. Gambia (2000)
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Human Rights our
Collective Responsibility
petitioner does not, in itself, demonstrate the lack or exhaustion of all effective
remedies ."36 While the Complainant sought his cases to be heard on an urgent
basis, the fact that proceeding on the normal court roll would not have been
favourable to him, as this would not be as expeditious as he had hoped, did not
render the local remedies unavailable or duly exhausted. The dismissal of both
cases in the High Court and the Constitutional Court was done on procedural as
opposed to substantive grounds.
67. Finally, the Commission reiterated in Rencontre Africaine pour la defense des
droits de /'homme v Zambia that when a government 'argues that the
Communication should be declared inadmissible because local remedies have not
been exhausted , this government has the responsibility of proving the existence of
such remedies .'37 The Commission contends that the Respondent State has
successfully proven the existence of remedies at the Complainant's disposal.
68. In view of the above, the Commisilfion coricf;Od,es that the Complainant has not
exhausted domestic remedies and that this Communication fails to meet the
requirements of Article 56 (5) of the '-African Charter.
Article .,5j,~6)
69. With tegards to the time limit for lodging a complaint, Article 56(6) of the African
Charter provides that communications are to be admitted if they are submitted
within a re,asonable time, following the exhaustion of domestic remedies or the
date setby the Commission for the counting of the time limit for admissibility before
the CommiS$ion itself.
36
Communication 307/05: Obert Chinhamo v Zimbabwe, (2007) ACHPR, para 84.
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37 Communication 71/92: Rencontre Africaine pour la defense des droits de l'ho
ACHPR, para 12.
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Human Rights our
Collective Responsibility
70. In Promoting Justice for Women and Children (PROJUST NGO) vs.
Democratic Republic of Congo, the Commission noted that the requirement in
Article 56(6) is tied to the requirement of exhaustion of local remedies so much so
that the point of departure of the reasonable time is from the date of exhaustion of
local remedies. It is not worthwhile to analyse Article 56(6) of the African Charter
when failure to exhaust local remedies has been established .38 In this
communication, the Commission has established that the Complainant failed to
exhaust local remedies. Consequently, the need to analyse the condition of Article
56(6) of the African Charter in the present
munte~tiory also falls away.
Article 56(7)
71. Finally, Article 56(7) of the African Charter states that 'Communications relating to
human and Peoples' Rights ... shall be considered if they do not deal with cases
which have been settled by the states involved in accordance with the principles
of the Charter of the United Nations, or the Charter of the Organization of African
Unity or the provisions of the present Charter.' This condition codifies the principle
of non bis inldem or res judicata by requiring that the matter referred to it should
not be pending before another body on the merits. 39
72. In Luke Munyandu Tembani and Benjamin John Freeth (represented by
Norman Tjombe) v Angola and Thirteen Others, the Commission averred that
the provision requires that a case "no longer be under consideration under an
international dispute-settlement procedure"40 Additionally, the case must have
been decided on the merits and a 'final settlement' given by that body.41 The
settlement must be from an 'adjudication mechanism with a human rights
38
Communication 278/03: Promoting Justice for Women and Children (PROJUST NGO)
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Republic of Congo (2012) ACHPR, para 75-76.
39 Communication 260/02: Bakweri Land Claims Committee v Cameroon, 4 Decembe
4 Communication 409/12, 30 April 2014, para 112.
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41 Communication 260/02: Bakweri Land Claims Committee v Cameroon, 4 Dec 2004,.l
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Human Rights our
Collective Responsibility
mandate.' 42 In the present case, there is no evidence to suggest that this matter
was settled by another international adjudicatory body. Thus, the Communication
complies with Article 56(7) of the African Charter.
Commission's admissibility decision
73. In view of the above, the African Commission on Human and Peoples' Rights:
i.
ii.
Declares the Communication inadmissible for lack of compliance with the
provisions of Article 56(5) of the African Charter;
Notifies the Parties of its decision in accordance with the provisions of Rule
118(4) of its Rules of Procedure.
Done at the 83 rd Ordinary Session of the Commissio,n held in B~:- • I, The Gambia,
from 2 to 22 May 2025.