Docusign Envelope ID: A39DAFC4-4CAD-8DDA-8188-614FCAF68904
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African Commission on
Human and Peoples' Rights
Human Rights our
Collective Respons1b1lity
DECISION OF THE AFRICAN COMMISSION ON
HUMAN AND PEOPLES' RIGHTS ON
ADMISSIBILITY
COMMUNICATION 787/22
ONAI MUZORE & JUNIOR MUN¥AKA, on behalf of
PRECIOUS MUZORE, Minor (Represented by Mr.
Shadrack Tebeile)
REPUBLIC OF SOUTH AFRICA
Adopted by the
African Commission on Human and Peoples• Rights
During the 84"' Ordinary Session, held virtually from 21 to 30 July 2025
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. . . . . . . . . . . . . . . . . •IW'f.::!P.fl&i~
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31 B1jilo Annex Layout, Kombo North District, West Coast Region
Phone: (220) 230 4361 Fax: (220) 441 05 04
Email : au-banjul@africanurnon.org
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Human and Peoples' Rights
DECISION OF THE AFRICAN COMMISSION ON
HUMAN AND PEOPLES' RIGHTS ON ADMISSIBILITY
COMMUNICATION 787/22
ONAI MUZORE & JUNIOR MUNYAKA, on behalf of
PRECIOUS MUZORE, M inor (Represented by Mr.
Shadrack Tebeile) v. REPUBLIC OF SOUTH AFRICA
SUMMARY OF THE COMPLAINT
1. The Secretariat of the African Commission on Human and Peoples' Rights (the
Secretariat) received the Complaint on 15th February 2022 from the
Complainants herein.
2. The Complainants allege that the victim is their child , Precious Muzore, who is
a minor, born on 20 May 2021 , at Jane Furse Hospital, Makhuduthamaga Local
Municipality, Limpopo Province, Republic of South Africa. After the recovery of
the mother, the parents of the child were advised that the child is entitled to
South African nationality under Section 2(2)(a) and (b) of the South African
Citizenship Act 88 of 1995, then they took the child to the Department of Home
Affairs for birth certificate in order to apply for support for the child before the
Department of Social Development. An officer from the Home Affairs
Department requested proof that the child was born in South Africa.
3. The Complainants allege that after obtaining proof that the child was born in
South Africa, they returned to the Home Affairs Department. Still, they failed to
get the child's birth certificate because an officer of the Home Affairs
Department requested a copy of ID Books and proof of the birth certificate and
informed them that, because they are Zimbabweans, their child cannot get a
birth certificate and should be Zimbabwean, not South African. Further, the
same officer told them that the child was not born in South Africa, although the
proof of birth had been submitted to him.
4. They add that on 22 September 2021 , the Complainants seized the High Court
with an urgent application which, on 13 October 2021 , was di •
compliance with the directive of this Court". Subsequently, th
the Constitutional Court of South Africa with an urgent applic
dismissed it "as it bears no reasonable prospects of success."
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ARTICLES ALLEGED TO BEEN VIOLATED
5. The Complainants allege the violation of Articles 1, 2, 3, 4, 5, 6, 12(2),
13(2)(3), and 22(1) of the African Charter.
PRAYERS
6. The Complainants pray the Commission to:
(i)
Declare that the Respondent violated the minor rights under Articles 1,
2, 3, 4, 5, 6, 12(2), 13(2)(3), and 22(1) of the Charter.
(ii)
Order that the victim is a South African under Section 2(2)(a) and (b) of
the South African Citizenship Act 88 of 1995;
(iii) Order the Respondent to issue a South African birth certificate and
assign the South African Identity Number to the victim within ten (10)
days from the date of the order;
(iv) Order the Respondent to endorse into the victim's birth certificate of the
victim the names of the Complainants as their parents;
(v)
Order the Respondent to pay to the Complainants a compensation of
R200,000,000.00 (Two Hundred Million Rands), which includes legal
fees and expenses before domestic Courts; and
(vi) Further orders as the Commission deems fit to grant in the
circumstances.
PROCEDURE
7. The Secretariat received the complaint and, after due consideration, seized the
matter pursuant to Rule 115(5) of the Commission's Rules of Procedure. The
parties were informed of this decision by a letter dated 13 June 2022 and a Note
Verba le of the same date. The Complainants were invited to submit arguments
on admissibility and merits.
8. By a letter dated 28 June 2022, the Complainants submitted arguments and
evidence on Admissibility and Merits, which were forwarded to the Respondent
State to submit its Arguments and Evidence on Admissibility and Merits, in
accordance with Rule 116(2) of the Rules of Procedure (2020).
9. By a Note Verbale dated 26 April 2023, the Respondent State requested an
extension of time within which to submit its observations on Admissibilit and
Merits. The request was granted and confirmed by a Note Verbale
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10. By a Note Verbale dated 26 May 2023, the Respondent State was informed that
its submission did not contain arguments on Merits and was granted an
additional thirty (30) days to rectify the omission.
11 . By a Note Verbale dated 16 April 2024, the Secretariat reminded the
Respondent State of the need to submit arguments and evidence on both
Admissibility and Merits. A further extension of time was granted.
12. By a letter dated 16 May 2024, the Respondent State challenged the
admissibility of the Communication and requested an oral hearing to present its
complete arguments and evidence regarding Admissibility and Merits in
accordance with Rule 102(1) of the Commission's Rules of Procedure.
13. By a Note Verbale dated 19 June 2024, the Secretariat acknowledged receipt
of the Respondent State's request. It informed it that the request for an oral
hearing had been transmitted to the Bureau of the Commission in accordance
with Rule 102(3), which was still pending approval. The Secretariat further
informed the Respondent State that its observations on Admissibility had been
forwarded to the Complainants for a response within thirty (30) days under Rule
116(2).
14. By a letter dated 19 June 2024, the Secretariat transmitted to the Complainants
the Respondent State's observations on Admissibility and Merits and advised it
to submit a rejoinder within thirty (30) days, which it elected not to do.
ADMISSIBILITY OF THE COMMUNICATION
The Complainant's Submissions
15. The Complainants submit that the present Communication meets the
admissibility requirements under Article 56 of the African Charter on Human and
Peoples' Rights and should be considered. They argue that the case falls within
the Commission's jurisdiction as the Republic of South Africa ratified the Charter
on 9 July 1996 and the Protocol on 3 July 2002, establishing the African Court
on Human and Peoples' Rights. 1
16. As to the identity and address of the Complainants, they submitted that the First
Complainant, Onai Muzore, and Second Complainant, Junior Munyaka, both of
Zimbabwean nationality, are lawfully residing in South Africa and submit this
Communication on behalf of their minor child, Precious Muzore, who was born
in South Africa on 20 May 2021 .2 They added that the minor child's birth was
officially registered at Jane Furse Hospital in Limpopo Province, and a proof of
birth certificate was issued as Annexure FA3.
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17. As to the Compatibility with the charter, the Complainants assert that the
Respondent State has violated their minor child's rights under the African
Charter, specifically Articles 1, 2, 3, 4, 5, 6, 12(2), 13(2), 13(3), and 22(1 ), by
refusing to recognize the minor child as a South African citizen by birth despite
meeting the legal requirements under Section 2(2)(a) and (b) of the South
African Citizenship Act 88 of 1995.3
18. The Complainants submit that they have exhausted all available local remedies
as required under Article 56(5) of the Charter. They outline their legal efforts as
follows: - On 22 September 2021, the Complainants filed an urgent application
before the High Court of South Africa, Gauteng Division, Pretoria, seeking a
declaration of citizenship for their minor child and the issuance of a South
African birth certificate.4 They added that on 13 October 2021 , the High Court
struck the case off the roll with costs, citing non-compliance with procedural
directives and that the court did not consider the substantive merits of the case. 5
19. The Complainants also alleged that following the High Court's decision, the
Complainants applied for direct access to the Constitutional Court, arguing that
the matter raised constitutional issues relating to the child's nationality and
rights under international law.6 On 30 November 2021 , the Constitutional Court
dismissed the application, stating that it bore no reasonable prospects of
success and declining to hear the matter on direct access. 7
20. The Complainants argue that after the Constitutional Court's ruling, no further
legal remedies were available, as the Constitutional Court is the highest judicial
authority in South Africa.8 They submit that refiling the case before the High
Court would not have been an effective remedy, as the High Court had already
dismissed the matter on procedural grounds, and the constitutional validity of
the Citizenship Act was a question for the higher courts. 9
21. The Complainants assert that their Communication was filed within a
reasonable time, as required under Article 56(6) of the Charter. They argue that
the Constitutional Court issued its ruling on 30 November 2021, and they
submitted this Communication in March 2022, within four months of the final
domestic decision. 10
3 Ibid, Paragraph 3, ibid; Paragraph 13, ibid
4
Annexure FA4- Notice of Motion
High Court Order
6
Paragraph 26, Written Subm 1ssion on Admissibility and Merits; Paragraphs 19Evidence
7 Annexure FA6-Constitutional Court O rder
8 Ibid, Para 29, Written Submit sion on Admissibility and Merits; Paragraph 23, Aff
9 Ibid, Para 30
10 Ibid, Para 22; also Para 25
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22. Further to the foregoing, the Complainants state that their claims are not based
on mass media reports but instead on official court records , government
decisions, and legal arguments presented before the domestic courts. They
emphasize that all evidence supporting the Communication is documentary in
nature and originates from official sources.11
23. The Complainants further submit that their Communication does not contain any
disparaging or insulting language toward the Respondent State. They submit
that their legal arguments are strictly factual and grounded in human rights law,
thus complying with Article 56(3) of the Charter.12The Complainants submit that
no other international body has previously settled their case, nor has it been the
subject of any agreement or settlement between the parties that would render
it inadmissible under Article 56(7) of the Charter.13
24. Based on the above, the Complainants urge the Commission to declare this
Communication admissible and proceed with considering the merits of the case.
14
The Respondent State's Submission
25. The Respondent State submits that the present Communication is inadmissible
under Article 56 of the African Charter on Human and Peoples' Rights, primarily
due to failure to exhaust local remedies. It also contends that the Complainants
prematurely submitted their case before the African Commission without fully
utilizing available domestic legal mechanisms.15The Respondent State
acknowledges that it ratified the African Charter on 9 July 1996 and is, therefore,
bound by its provisions. However, it argues that the admissibility criteria set out
under Article 56 must be strictly adhered to, and the Complainants have failed
to meet this threshold.16
26. The Respondent contests the Complainants' claim that they have exhausted
local remedies, asserting that the legal avenues available within South Africa's
judicial system were not fully pursued before approaching the Commission.17
The Respondent provides a detailed account of domestic proceedings and
highlights that the Complainants failed to take all reasonable steps to litigate
their case entirely.
11Para 16-18, and Para 27, ibid
12
Paragraphs 13-15, Written Submission on Admissibility and Merits
3Ibid, Paragraphs 24-25,
14
Para 3, Written Subm ission on Admissibility and Merits; and Para 30, Af •
Annexures FA7 & FA8 - Citizenship Act Provisions
15
See Para 5-7, Respondent's Written Reply on Admissibility and Merits.
16
ibid, Para 8
17Jbid Paragraph 10
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27. From the High Court, the respondent submitted that the Complainants filed an
urgent application before the High Court of South Africa, Gauteng Division,
Pretoria, on 22 September 2021 , seeking recognition of their minor child as a
South African citizen by birth and requesting the issuance of a birth certificate
and national identity number.18 They added that on 13 October 2021 , the High
Court struck the case off the roll with costs, citing procedural non-compliance.19
28. The Respondent emphasizes that the High Court never ruled on the merits of
the case, as it was struck off due to procedural deficiencies rather than
substantive legal findings .20 As to the Complainant's move to the Supreme
Court of Appeal, the Respondent argues that the Complainants had an
obligation to refile their case before the High Court or approach the Supreme
Court of Appeal for relief before escalating the matter to the Commission. 21
29. The Respondent stated that the Supreme Court of Appeal has jurisdiction over
constitutional and administrative law disputes, including matters related to
citizenship and identity documents, and could have provided an adequate
remedy. 22 They submitted that the Complainants never attempted to engage the
Supreme Court of Appeal, meaning an effective remedy remained unutilized .23
30.As to the Constitutional Court Proceedings, the Respondent noted that the
Complainants sought direct access to the Constitutional Court, bypassing the
Supreme Court of Appeal, which is the usual appellate forum for such matters. 24
On 30 November 2021 , the Constitutional Court dismissed the Complainants'
application, stating that it bore no reasonable prospects of success, referring to
Annexure RS4-Constitutional Court Ruling.
31. The Respondent submits that the dismissal by the Constitutional Court was
procedural, as the Court did not engage with the substantive legal arguments
regarding the minor child's citizenship. It contends that the failure to obtain a
ruling on the merits from the High Court or Supreme Court of Appeal means that
the Complainants did not exhaust local remedies. 25
32. Further to the said , the Respondent submits that the Complainants failed to
utilize available administrative remedies before resorting to litigation.
Specifically, it noted that it could have been used by the Department of Home
Affairs to provide internal review mechanisms for individuals challenging
citizenship decisions. The Respondent State submitted that the Complainants
18Annexure RS1 - High Court Application.
19
Annexure RS2 - High Court Ruling
20 Para 12-13, Respondent's Written Reply on Admissibility and Merits.
See, Para 14, ibid
See, Annexure RS3 - Supreme Court Jurisdiction Document
23 See Paragraph 15, Respondent's Written Reply on Admissibility and Merits
24 See, Paragraph 16, ibid
25 See, Paragraphs 18-19, ibid
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did not engage in these mechanisms, which could have resolved the matter at
an administrative level, citing Annexure RS5- Citizenship Review Procedure.
33. The Respondent also submitted that the Complainants did not submit an appeal
to the Minister of Home Affairs, who has statutory authority to review and rectify
citizenship determinations.26 It argues that the filing of the Communication was
premature, as effective remedies were still available. It maintains that the failure
to litigate the matter before South African courts fully renders the
Communication inadmissible under Article 56(5) of the Charter. 27
34. Regarding the timeframe for filing the Communication, the Respondent
acknowledges that it was submitted within four months of the Constitutional
Court's ruling . However, it argues that this does not cure the defect of nonexhaustion of remedies and does not validate an inadmissible claim.28
35. The Respondent further asserts that the Communication contains inaccuracies
and unsubstantiated claims regarding the exhaustion of domestic remedies. It
highlights that the Complainants failed to disclose their ability to refile their case
or approach the Supreme Court of Appeal, which would have been material
information for determining admissibility.
36. Finally, the Respondent concludes that the Communication does not meet the
admissibility requirements under Article 56 and should, therefore, be declared
inadmissible. It urges the Commission to dismiss the case and to advise the
Complainants to pursue the appropriate legal channels within South Africa
before seeking recourse under the Charter.
THE COMMISSION'S ANALYSIS ON ADMISSIBILITY
37. It is a cardinal principle that a Communication submitted under Article 55 of the
African Charter on Human and Peoples' Rights must satisfy the seven
admissibility requirements stipulated in Article 56 of the Charter. The African
Commission has consistently upheld this rule , recalling that these requirements
are cumulative and must be fully met for a Communication to be declared
admissible.
38. In particular, the Commission reiterates its position in FfDH & Others v
Senega/29 that non-fulfillment of any one of these conditions renders a
Communication inadmissible.
39. As Article 56 requires assessment and confirmation of fulfillment of each of the
seven conditions listed therein, it is incumbent on the African Commission to
Ibid, Paragraph 20
Ibid, para 22
28 Ibid, para 24
29
Communication 318/06, pa ra 32/38
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examine the submission of the parties and satisfy itself of the compliance of the
communication with each of the seven requirements irrespective of whether the
parties made submissions on each of the requirements. Accordingly, the
Commission will now consider the parties' submissions in light of these
admissibility requirements successively.
Article 56(1): Identity of the Complainants
40. Article 56(1) of the Charter requires that a Communication indicates the identity
of its authors, even if they request anonymity.
41. The Commission reiterates its position in Michael Majuru v. Zimbabwe,30and
lbrahima Dioumessi and others v. Guinea,3 1 as reaffirmed in Spilg and Mack &
0/TSHWANELO (on behalf of Lehlohonolo Bernard Kobedi) v. Botswana32 that
complainants must provide their complete identity and contact details both to
ascertain their authorship of the communication and to ensure continued
interest in the matter.
42. The present Communication is submitted by Onai Muzore and Junior Munyaka,
acting on behalf of their minor child, Precious Muzore, through their legal
representative, one Adv. Shadrack Tebeile.33 The Respondent State does not
contest the identity of the Complainants. The Commission, therefore, finds that
the requirement under Article 56(1) has been met.
Article 56(2): Compatibility with the African Charter
43. Regarding the requirement under Article 56(2) of the African Charter, the
Commission reiterates that this provision requires the Communication to be
compatible with the Constitutive Act of the African Union or the African Charter
on Human and Peoples' Rights (the African Charter), and that it must fall within
the Commission's four aspects of competence, namely: ratione personae,
ratione materiae, ratione temporis, and ratione loci. 34
44. According to the Commission's jurisprudence, the requirement of compatibility
of a communication with the Constitutive Act or the African Charter is fulfilled if
the communication deals with human and peoples' rights issues provided for in
the African Charter. In this respect, the Commission observes that the present
Communication addresses allegations of violations of rights guaranteed under
the African Charter, as listed in paragraph 5 above. The rights in question
allegedly violated by the Respondent State are directly related to the objectives
of the African Union, including the promotion and protection of human and
30 Communication 308/ 05, para 40
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31
Communication 291/ 04, para 27
32 Communication 277/ 03, para 51.
33 See, Paragraphs 6-9, Written Submission on Admissibility and Meri ts; Para
34
Communication 709/ 19- Sena tor Jean-Pierre Bemba Gornbo v Democratic
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peoples' rights, as stated under Article 3(h) of the Constitutive Act of the African
Union. Furthermore, nothing in the Complainants' submissions or in the nature
of the Communication reveals any incompatibility with the African Charter or the
Constitutive Act.
45. Concerning the four aspects of jurisdiction, it is established in the jurisprudence
of the African Commission that ratione personae is fu lfilled where the
communication dealing with human and peoples' rights under the African
Charter is submitted by individuals (on their own behalf or on behalf of others)
whose identity is established under Article 56(1) of the African Charter.35 The
present Communication is filed by Onai Muzore and Junior Munyaka,
Zimbabwean nationals lawfully residing in South Africa, on behalf of their minor
child , Precious Muzore, against the Republic of South Africa, which is a State
Party to the Charter. The Respondent State ratified the Charter on 9 July 1996.
Given that, under the African Charter, a communication can be filed by anyone
(on one's own behalf or on behalf of others) whose identity is established
pursuant to Article 56( 1) of the African Charter, the present communication, in
which the identity of the authors is established pursuant to the said Article 56( 1),
fulfills the requirement of ratione personae. Therefore, the African Commission
has personal jurisdiction on this Communication, which is brought against a
party under the Charter.
46.As to ratione materiae, the jurisprudence of the African Commission established
that the communication has to deal with human and peoples' rights issues under
the African Charter. In the present Communication, the Complainants allege
violations of specific rights guaranteed under the African Charter, including, but
not limited to, Articles 2, 3, 13, and 22 , which fall squarely within the
Commission's material jurisdiction. 36
47. On ratione temporis, the jurisprudence of the African Commission has
established that the alleged violations need to have occurred at a time
subsequent to the ratification of the African Charter by the Respondent State.
In the present Communication, the alleged violations occurred after the
Republic of South Africa ratified the African Charter, specifically since May
2021. As such, the facts fall within the temporal scope of the Commission's
jurisdiction.
48. With respect to ratione loci, it is established in the jurisprudence of the
Commission that the alleged violations took place in the territory of the
Respondent State. In the present Communication, the alleged violations took
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Communication No 39/90, Pagnoulle (on behalf of Abdoulaye Mazou) v C
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49. On account of the foregoing analysis and the lack of contestation of these by
the Respondent State, the Commission, therefore, concludes that the
requirements of Article 56(2) have been met.
Article 56(3): Absence of Disparaging or Insulting Language
50.Article 56(3) of the Charter stipulates that a Communication must not contain
disparaging or insulting language directed at the State concerned.
51. To determine whether a remark is disparaging, the Commission recalls its
position in Zimbabwe Lawyers for Human Rights & Associated Newspapers of
Zimbabwe v. Zimbabwe, 37 in which it held that determination would depend on
whether such remark is aimed at unlawfully impairing the dignity or reputation
of the State.
52. The Complainants assert that their submissions contain no offensive or
disparaging language.38 The Respondent does not dispute this claim. The
Commission has examined the Communication and finds no language that is
insulting or disparaging the Respondent State.
53.Accordingly, the Commission finds that the Communication complies with
Article 56(3) of the Charter.
Article 56(4): Not Based Exclusively on Media Reports
54. Article 56( 4) of the Charter requires that Communications not be based
exclusively on news disseminated through the mass media.
55. The Commission in Sir Dawda K. Jawara v. The Gambia 39 also, in Ahmed
Ismael and 528 Others v. Egypf.4° clarified that the key issue is not whether
information originates from media sources but whether it is verified and credible.
56. In this case, the Complainants present official court documents, government
correspondence, and administrative decisions. 41 The Respondent does not
contest the authenticity of these documents but argues that the Complainants
misrepresent their contents. 42
57. Notwithstanding the contestation over the accurate repre
documentations relied on in filling the Communication, i
communication is not based exclusively on news dissemin
37 Communication 284/ 03, para 82
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39 Communication 147/ 95-149/ 96, para 35,
4 Communication 409/ 12, para 40
41 Paragraphs 16-18,; Paragraph 27, Affidavit of Evidence)
42 Paragraphs 26-28, Respondent's Written Reply on Admissibility and Merits).
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Therefore, it is found that the Communication is based on verifiable sources
other than news media and complies with Article 56(4) of the Charter.
Article 56(5): Exhaustion of Local Remedies
58.Article 56(5) of the Charter provides that a Communication shall be admissible
if it is sent after exhausting local remedies unless it is evident that this procedure
is unduly prolonged.
59. The requirement of exhaustion of local remedies is premised on the
international law principle that primary responsibility for protection lies with
national jurisdiction, and international jurisdiction plays a complementary role
principally. As a matter of principle, international bodies such as the African
Commission can in no case assume first-instance jurisdiction. As such, the
jurisdiction of international bodies such as the African Commission kicks in after
it has been established that national jurisdiction has failed to avail remedies.
The Commission has further elaborated this requirement in several decisions,
most notably in Sir Oawda K. Jawara v. The Gambia,43 where it held that for a
remedy to be exhausted , it must be available, effective, and sufficient. A remedy
is available if the Complainants can pursue it without impediment, effective if it
offers a prospect of success, and sufficient if it is capable of redressing the
complaint. The burden of proof lies with the complainant to demonstrate that
such remedies have been exhausted or are unavailable or ineffective.
60. The Complainants submitted that they have exhausted all available domestic
remedies as required under Article 56(5) of the Charter. In particular, they
outline their legal efforts of 22 September 2021, when they filed an urgent
application before the High Court of South Africa, Gauteng Division, Pretoria,
seeking a declaration that their minor child was a South African citizen by birth
and requesting the issuance of a South African birth certificate. 44 However, this
application was struck off the roll with costs on 13 October 2021 , with the Court
citing procedural non-compliance. 45 It is also on record that following the High
Court's decision, the Complainants applied for direct access to the
Constitutional Court, arguing that the matter raised constitutional issues relating
to the child's nationality and rights under international law.46 On 30 November
2021 , the Constitutional Court dismissed the application, stating that it bore no
reasonable prospects of success and declined to hear the matter on direct
access.47 The Complainants argue that no further legal remedies were available
• • ial
after the Constitutional Court's ruling, as it is South Africa's hi
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43 Communications 147/ 95 & 149/ 96, para 31
44
See, Annexure FA4 - Notice of Motion
45 Annexure FAS - High Court Order.
46 See, Paragraph 26, Written Submission on Admissibility and Merits; Paragra
Evidence
47 Annexure FA6 - Constitutional Court Order
11 I a.:;
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The African Commission on Human and Peoples' Rights
31 B1j1lo Annex Layout. Kombo North Distnct,
West Coast Region Gambia
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authority. The Complainants submit that refiling the case before the High Court
would not have been an effective remedy, as the High Court had already
dismissed the matter on procedural grounds, and the constitutional validity of
the Citizenship Act was a question for the higher courts. 49
61. The Respondent disputes the exhaustion of local remedies, arguing that the
Complainants failed to utilize all available legal mechanisms before approaching
the Commission.50 It argued that the High Court did not dismiss the case on its
merits but rather struck it off the roll due to procedural defects. The Respondent
contends that the Complainants should have corrected the procedural issues
and refiled their case before the High Court, which remains a viable remedy.51
The Respondent added that South African courts allow for re-enrollment of
cases when procedural errors are corrected , and the Complainants failed to
utilize this option.52
62. The Respondent states that the Supreme Court of Appeal has jurisdiction over
citizenship matters and could have provided relief to the Complainants.53 The
Respondent submits that the Complainants never attempted to engage the
Supreme Court of Appeal, meaning an effective remedy remained unutilized. 54
63. The Respondent contends that the Constitutional Court rejected the case on
procedural grounds, without considering the substantive arguments. The
Respondent further added that the Complainants did not explore available
administrative remedies, including the Department of Home Affairs' internal
review mechanisms, which allow individuals to challenge citizenship decisions,
and an appeal to the Minister of Home Affairs, who has statutory authority to
review and rectify citizenship determinations.55
64. The Commission recalls its position in Jean-Claude Roger Gbago v. Cote
d'Ivoire, 56 which held that failure to utilize an available judicial remedy renders
a Communication inadmissible. Furthermore, in Sir Dawda K. Jawara v. The
Gambia,57 the Commission held that remedies must be practical and not unduly
prolonged or ineffective. The Complainants have not demonstrated that refiling
48
See, Para 29, Written Submission on Admissibility and Merits; also, Paragraph 23, Affidavit of
Evidence
49 See, ibid, paragraph 30
50
Paragraph 10, Respondent's Written Reply on Adm issibility and Merits
51 Ibid, para 12
52 Ibid, para 14
53
Citing Annexure RS3 - Su preme Court Jurisdiction Document.
54
See Paragraph 15, Respondent's Written Reply on Ad missibility and Meri ts
55 See, respectively, A nnexure RS5 Citizenship Review Procedure AND Paragraph 20, Res ponde nt's Written Rep!
Merits
56 Communication 348/07, para 60
57
Communication 147/95-149/96, para 31
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their case at the High Court or appealing to the Supreme Court of Appeal would
have been unduly prolonged or ineffective.
65. The Commission also recalls its decision in Cudjoe v. Ghana,58 which states
that the burden is on the Complainant(s) to demonstrate that domestic remedies
would be futile. The Complainants have not provided sufficient evidence that
refiling the case or seeking an appeal would have been ineffective or
impractical. They have also not contested that the national courts have not
decided on the substance of the communication.
66. Based on the available facts and case law, the Commission finds that the
Complainants failed to exhaust local remedies because: The High Court did not
decide the case on its merits, and the Complainants did not attempt to refile
their case. 59 Also, the Supreme Court of Appeal remained an available and
effective remedy, which the Complainants did not utilize nor contest its
effectiveness. Further, given that no decision was made on the merits of the
communication, the Constitutional Court's rejection of the case on procedural
grounds does not constitute exhaustion, as quite rightly argued by the
Respondent. 60 The Respondent never countered these arguments.
67. Therefore, the Commission concludes that the Communication does not satisfy
the requirement under Article 56(5) of the Charter.
Article 56(6): Timeliness of the Communication
68. Article 56(6) of the Charter requires that a Communication be submitted within
a reasonable period after the exhaustion of local remedies, or where no local
remedies exist, from the date the alleged violation occurred.
69. Given that Article 56(6) of the African Charter speaks of 'after the exhaustion of
local remedies' and is accordingly predicated on exhaustion of local remedies,
the finding of the Commission in respect of Article 56(5) of the same that local
remedies are not exhausted makes consideration or analysis of whether the
communication was submitted within a reasonable time unnecessary. If local
remedies have not been exhausted , there is no basis for determining a
reasonable period under Article 56(6) of the African Charter. In the present case,
the Commission has established in the foregoing part that local remedies were
not exhausted , thereby rendering it unnecessary to consider Article 56(6) of the
African Charter, which is contingent upon Article 56(5).
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Article 56(7): Not Settled by Another International Body
70. Article 56(7) of the Charter states that Communications shall be admissible if
they do not deal with cases which have been settled in accordance with the
principles of the Charter of the United Nations, the Charter of the Organization
of African Unity, or the African Charter itself.
71 . Interrogating the parties' submissions in the present communication, the
Complainants submitted that the present Communication has not been
considered or settled by any other international human rights body.61 The
Respondent State does not contest this submission. 62
72. The Commission finds that the Communication satisfies the requirement under
Article 56(7) of the Charter.
DECISION ON ADMISSIBILITY
73. The Commission finds that the communication satisfies the requirements under
Articles 56(1 ), (2), (3), (4), and (7) of the African Charter but fails to satisfy the
requirements under Article 56(5) and (6) of the same.
74. Consequently: (i)
The Commission declares the communication INADMISSIBLE under
Article 56.
(ii)
Decides to notify the parties of its decision in accordance with Rule 118(4)
of its Rules of Procedure.
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Done at the 84th Ordinary Session of the Commission
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61 Para 28, Complainant's Written Submission on Admissibility and Merits
62
Para 26, Respondent's Written Reply on Admissibility and Merits
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31 Bijilo Annex Layout, Kombo North District,
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Pho ne: (220) 230 4361 Fax: (220) 441 05 04
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