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(~~}? African Commission on
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Human Rights our
Collective Responsibility
Human and Peoples' Rights
Con,n,unica. ion~ 377/09
Mendukazi Patricia
Mo1ia:kali
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Adopted by the .•
African Commusion on HUffl!l11 and Peoplell •Jlllghts
During the 7fl' Ordinary Session tfo~ virtually from 1 July to 2 August 2023.
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The frican Commission on Human and Peoples' Rights
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31 Bijilo nnex Layout, Kombo North District, West Coast Region
Phone: (220) 230 4361 Fax: (220) 441 05 04
Email: au-banjul@africa-union.org
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African Commission on
Human and Peoples' Rights
Human Rights our
Collective Responsibility
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Communication 377/09
Mendukazi Patricia
Monakali and O~hers v. Rep blic of South Africa
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Summary of the Complaint:
1.
The Communication was filed by tJ e ComplliRap.t, Menduzaki Patricia
Monakali, on behalf of herself and 75 other ~~:milies,<lc~upying an informal
settlement known as Portion 41 of the armJ.:?d}!<op 14~: lthe Property) in the
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.. 1·:·.,.·.·:.i.st.'0. !f:l~ th~J pa.u.teng Province of
Ekurhule1:i Metropoli~a~ M_unicipality, f·.~. •·.".r.·.~
South Afnca (the Mumc1pahty).
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The Complainants are citizens of<~-Q~~ Africat~~e Re~ppr,dent ·state in this
Communication. South Africa is,,-f state:· :l~~ to Jpe African,S;!l~rt~r on Human
and Peoples' Rights 1981 (tJ,,f,Atrican lSt!}'.1:rttet), having dtifi~d the African
Charter on 9 July 1996.
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The Complainants liy:~~~\~~mporari(~1\£t,.,dwe1Ii~-~~J,jtuated on the Property.
The Property allegedly b~\<:mgs !P::tne Isi~wic Da~~h Movement Trust (IDM
Trust) and is parf0t·t'4c.:; Ro8.dekC:/i/ Info~m~]<S)tHer,tient sheltering thousands of
families who h'ave no proper hoi}sing.
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The Complain,apts allege that prid1\.r<1, oscupying the Property in November
2004, the 76 hotls,eholds represent~_d it:t:; his case previously resided on Portion
4q;R! the Roode~op_ Informal SettJ~ni:~~ situated next to a river and wetland.
This:1'.ppr!ion of tne:,settl,ement is,.prone to frequent flooding and uninhabitable
d urirtl~a}µinp sunurier,~'eif~(in.s::: /
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The ~~ip;;~;:· .}9jl~g~-~~~t--Portion O was also severely overcrowded and
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that the\>~vercrowciii:j.gY' created unhygienic conditions and various social
problems f~:i;- them, iri~Iuding regular cohflict over living space. They also claim
that the he~~~. ~:;immer rains on Portior 40 regularly caused da:mages to their
shack dwelli\'\'g§~ drew mosquitoes, and resulted in the rapid spread of
infectious dis'~ases. The resulting hea-{ry floods and the absence of proper
drainage infrastructure for the storm w~ter led to the deaths of three children
by drowning in October 2004.
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6.
The Complainants allege that due to heavy flooding in N o l e ¾ ~ ~
had to vacate Portion 40 and move on t~ Portion 41, where th. ~~v&tNi'84e\9et'~..
since. They claim that they have complained to the approp Jte
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So~t~ Africa over their pr?blem of ~o1elessness and requJie1 ha~A_u t~ ;\
pnonty and resources be given to their eeds.
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African Commission on
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Human Rights our
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The Complainants also allege that they have submitted applications for
alternative housing for shack dwellers th~ Municipality under the plans and
programmes of the Gauteng Provinciall. G~vernment in South Africa which
ought to have been built within five ydars irom 1997. Due to a lack of ample
provision for their informal settlement itl the housing plans of the Municipality,
there is no supply of electricity to thJir shack residences. They rely on the
burning of coal fire for cooking and Jarmth which often cause shack fires,
injuries and deaths. They claim that in July 2009, a fire incident which arose
from the burning of coal on the Prope ty led to the untimely deaths of two
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residents.
8.
The Complainants claim that they hav I be~p:::.fa:i'ustrated\qy waiting endlessly
without any houses in sight from the g0vJ~rJ:l!Ilen1;Ht1;1.at t~iY have held a series
of meetings with representatives of ,t~e:,:<Jq~~e_pgi;::~~Bfit,lg}jl:i;],~~J,:!nment to
address their housing crisis; and t~~t:ctespite s~,v1ral cq'.~tmen'.ts[,~t;Vfthe part
of the authorities including an -~>fer ·q¥1>J.~~ Mtl1cipalityt:~~S\,~u~. the property
from the IDM Trust, there has,~!~,~~ no rrr~m~g~_ul outcome. ·,,<i•Y?};fY
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The Complainants claim_,tha/;:·!:;~t~,,,t~lre~~v~t>Rossession oft~e Property, the
IDM Tru_st brought a~,-~fplication in~:t.BR~ in the,~~~~;ersrand Local Divi~ion
of the High Cou~t :~">evi~T:itrS:~em f~gJrf· tp. ·: r,operty\·12?rsuant to South ~fri~an
law: The Comp~•~t~~-1-1:.!z opp,~~~li:~;Jt,he ap~hca..,t~J\ afc;lJded a counter ~pp~ication
agamst the Myl)lcipahty pray1't'.}~[:the Court td·~~~!lare that the Municipality was
under a consVtptional and statutofy,,~bl~gatiort;fo have a policy and programme
in place to 'agdress
the applic,~t:tf;iJiomeless
situation by purchasing the
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property fromJhe Trustees for a spec~m:cfsum and give adequate priority and
re~ources to theJr:~eeds. They als<j>\soukht an order to prevent the IDM Trust
frc'>!jt;,~:yicting th~Il} from the Prop~rty uhtil suitable alternative accommodation
or la:b.dJs::available 'l·oJli:em; -~; :·, ,·,/
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10. Based 't\[). cotij.'fi.(<µ,pcµments provided to the Commission, it is shown that the
High Co~!l'.tf~lG.na'\h~t'~ne Municipalitylfailed to put into action an appropriate
emergency)plan to address the plight 0£ homelessness in the Rooikop Informal
Settlement'~~~ ~rdered the Municipal Igovernme~t _to purchase the Property
from the IDN{:tWrust /or the sum of R250 000.00 w1thm 30 days of the order as
well as make,provision for essential servfces to the occupiers.1
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11. The Municipality lodged an appeal alainst the High Court's order for the
purchase of the property at the South Arrkan Supreme Court of Appeal (SCA).
In upholding the appeal, the SCA noted that while the trial court rightly_fQund
that the Municipality had not adequatelf dealt with the complai~~~~~
of homelessness on the Property, it was not justified in adoptin~~llilib°if'fl'ia°f<"0 ~.
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1 See Ebrahim Dada NO & Others v Unlawful Occupiers oJPortion 41 (Unreported
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African Commission on
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Human Rights our
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was outside the limits of its powers. As uch, the SCA set aside the trial court's
decision. 2 The Complainants' further a[peal to the Constitutional Court was
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unsuccessful. 3
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12. The Complainants claim that their conti ued illegal occupation of the Property
is due to the Municipality's failure to pr! vide adequate housing in line with the
government's basic obligations under the South African Constitution and
housing legislation.
Articles alleged to have been violated
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13. The Complainants allege that the Re pondent(State, \by1 failing to provide
adequate housing for the 76 families represl~t~c(tA this ~~se, has violated the
provisions of Articles 5, 17, 18, 19, 22
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Prayers of the Complainants
14. The Complainants: r
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prayed that _th_;}~o~ission;~:',ers tHei~g~unication to the African
Court for adrl:rq.1cqtion; and <)'.' '.:,,
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req1:1est,,~9::1 J@rrnis·s~6~ .. t~:('fu~kel oi~(:s~~~i!~ions to the Commission
dunr1g:1ts 46 th Ordmary\S,ess10n, schedµled for 11 - 25 November 2009,
Banjtj.I:, The Gambia, f6r._)he feferral· of the Communication to the
African
\\~[ourt.
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15. T1}~" Complairl~¾is,,, having elecj~dtlat the admissibility stage that the
Co&i~~ion adjti'<il5a.tt,o~er the}n~tt~r,,the pra~er for referral of the Complaint
to th,e~ Q~urt_ has bee11:i:g~~R~~1:~~d wit\ What IS left of the substance of the
complatnt"'befor~. the Comffiission is for a determination of the question of
whethe1(the,,les'i::>.OJ1~e"Ilt_,State has violJted the provisions of Articles 5, 17, 18,
19, 22 anq:34-·of the -~f~tcan Charter in rejiation to them.
Procedure
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16. The Secretard~-~f the Commission ("Se ,retariat") received this Communication
on 13 August 2009. Upon sending its acknowledgement of receipt on 17 August
2009, the Commission received a requ1 t from the Complainants to make oral
submission at the 46 th Ordinary Sessio of the Commission. The Com2lainants
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2 See Ekurhuleni Metropolitan Municipaliti; v Ebrahim D 'da NO & Others (Unreported <z,~:
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280/2008) [2009] ZASCA 21 (27 March 2009).
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3 See decision of the Constitutional Court of South Afrfca in The Unlawful Occupiers of Por,ti.on 41~
Ebrahim Dada NO & Others (Unreported Case No.: CCT 32/09).
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pleaded urgency of the Complaint base on a fire accident that occurred at the
settlement which claimed two lives.
17. On 18 August 2009, the Secretariat acknqwledged receipt of the request for oral
hearing and informed the Complainant~ that their Complaint would be tabled
before the 46 th Ordinary Session of the <Commission for seizure, and only after
such determination on seizure that parti{s could be invited to make written and
oral submissions on the merits of the ca8ie. During its 46 th Ordinary Session, the
Commission examined the Complaint and decided to be seized of the matter.
On 8 December 2009, the Complainant were informed
of the Commission's
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seizure decision.
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18. On 23 February 2010, the Secretariat rece,·~~{'th~"~-~~plaipknts' submissions on
the admissibility of the ~ommuni~:~ltofii)'~~~~ich_ :W.,~s-. fr~p~~i!~~d. to the
Respondent State on 16 Apnl 2010, f9rf:1ts resp010st. ",, · ..
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19. On 16 June 2010, the Resi,ond~[\J~i}~"d the'r~omp;;il,ahts,
~formed
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that th~ ~o~unication had,):Seiv:;.,,~e!e+~cl!;:/J:R:!he 48 Ordi~~y Sessi~n _of the
Comrmss10n m November 2010, pep:~J!ng the":E..!3,}'-pondent State's subrmss10n on
admissibility. The Resppr'dent State"'W~s. also re'q:ge~ted to make its submission
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20. On 18 May 201~> the -·~espofiq~n,f State an '('tl\e<~omplainants were informed
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~~:J:,t~tt; ~~=::ro~~~!l~~~l1of;j;~tp~!~~~Ia~~~ t! i!:1;~
Ordinary Sess~or to be held from 9 fO:;i~,,~ctober 2012 in Abidjan, Cote d'Ivoire
due to the i\on-submission of :~h?Jrfkespondent State's observations on
AdriJtssibility. TI,_f·l\_espondent Sta,te was also informed that the Commission
wo~1?~fr~~eed at ':i:f!s· .57n~; 0~9inaryJ Session to take a. decision on the
adm1~$,101ht.y-of the Communication based on the facts before 1t.
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21. On 28 ·~,tR!-}~);2012)s;;i;fl:~,}t Secretariat rr-sent t? the Respondent ~tate the
Complam~~ts sub~~s1ons, together wfth prev10us correspondences from the
a request to enter its submission
on admissibility within two
Secretariat \~ith
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months of t~~,4 ;g.ate of the notification. On 1 August 2012, the Secretariat
forwarded th~;'.'aimexures accompanying the Communication to the Respondent
State. On 13, August, the Secretariat I received a further request from the
Respondent State for the annexures Ito the Communication, which were
required for preparing its submission o admissibility.
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22. In November 2012, the Respondent sJate forwarded its First Sub:tp,issi~~-,on
Admissibility, which was transmitted tp the Complainants. The etrii~ant~<.,
forwarded their response on 28 Novemper 2012, which was also tr~s~~~cN:~ ,
the Respondent State on 30 November 2012.
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23. On 31 January 2012, the Respondent Sta,te forwarded its Second Submission on
Admissibility, which was transmitted tojthe:Complainants on 11 February 2013.
On 8 March 2013, the Complainan s forwarded their response to the
Respondent State's Second Submission 9n Admissibility, which was transmitted
to the Respondent State on 13 March 201f,
24. On 13 April 2012, the Respondent Staie forwarded its Third Submission on
Admissibility, which was transmitted to/ the Complainants on 2 May 2013. Also
on 2 May 2013, bo~h partie~ were_infor~ed that ~t its,~3 rd Ordi~a~y Sessi?n held
from 9 to 23 Apnl 2013, m BanJul, The Gambrn,,.c:;tfl'ifkC:omrrussion decided to
defer the consideration of the CommuniJation t <Ifs ~~t' ssion.
25. At its 54 th Ordinary Session, held in Bahjul/fhe ,,,,~µi.biJ}~:[ om 22 October to 5
~~=~:aJ~~3, the Commission,,:fnsi~f!~"'sti'~
• ~ ibility of the
26. The Commission on 8 March,,go1tf:~f~ted)~e c;~Pl\jm,\lrrts to confirm
whether they would be amecy1f6li\tt~ thJ. in~tt~t'being adjudisgt~d upon by the
Commission should the <:ommissii~::~9t gra:nt~th~ir prayer fcrf a referral to the
African Court on Hu,gtan and Pe<?:::Bt~s' Rig11ts\, On 12 March 2014, the
Complainants confirrp~ ·;-·,_at they ) 1~,:,,i,~rose td \~t;inatter being determined
,:;:ifov::,
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27.
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At its 16th Ex~rf:.ordinary Sessitleylg:~ld i
Kigc};itRwanda, from 20-29 July 2014,
the Commissiqn considered the acrittis,si !ility of the Communication.
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28. Following the'·)tqmissibility of th,~ Qb'" unication, in September 2014, the
C~f11.~issio1: offer~<i.,its good offic;~~ t'o proke~ an amicable settlement between
the·@g - )amants aIJd:th~ Respongent State without success.
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29. On 1~,Jait~s t0;6:,
~ s i J invited the Complainants to enter
submissi,;gns<{~iftn~[~<jfft~~ of the commJnication in accordance with Rule 108(1)
of the 201g;i·Rules o!;iI~rocedure of th~ Commission. In the response to this
request, th~~fomplaiiiants through theirj legal representative indicated that they
have adoptegti,':~,>their submissions on tpe merits their Written Submissions on
the Admissib't!Hy of Communication 31'7/09 (dated 4 March 2010), especially
parts 5 and 7; rather than present a special set of written submissions on the
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-·~30. Upon further request to the Complainahts to enter written s u b , ~ ~ ~
merit, the Complainants by em~il dated ~6 May 2~16 re~ffirm. \«rn_Mr_ ?l~t-i. of1J\,
28 January 2016 to rely on sections 5 anti 7 of their Written r mi si~~fl ~ ~ ~
Admissibility of the <;=ommunication.
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Human Rights our
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31. On 25 October 2016, the Commission received the Respondent State's First
Submission on Merits dated 1 Augus 2016, which was transmitted to the
Complainants.
Admissibility
Submissions of the Complainants
32. The Complainants submitted that the present Communication fulfils all the
admissibility requirements set out in Ar icle 56 of t9-,~:t.,£rican Charter.
33. According to the Complainants, the dommµp,l~~;i::::~~t~ out a prima facie
violation of Articles 5, 17, 18, 19, 22 an 24 8rthe\~fricali Charter, which they
contend cannot be fulfilled unless th • • ,qt t~}lwus{t1.g
j~ fulfilled. They
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contend that they currently live un9~,,
um~1:w cfrc~tnsl:ance.~ w,hic4 are an
affront to their dignity and humaJJ,f ,fl d, wors,g~ face"'ari;application for their
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34. The Complainants asserted that'f]t~;Jy1 nicip'~!!t' opposed their application for
an order prohibiting ~:viction u11til , the Ni:q],ajcipality provided suitable
alternative accommod,<l}io:n for them.,:J ,)i:\Municf:,i\; ,· s:::has since then not only
failed to offer al:~!~§ti~g:J~cq?m;;,1Jfci~t~oh1{}~1;i~ al~ , ~~ never indica:ed when
su~h an offer 2}mht·'b~ fortJ\~~~1:1g o~ w~tr.~rJt will be fo~thco~ng: They
clan~ that th ;::fespondent Sta:e:\1~>~.~ thrse c.irs~mst~nces denying the1~ ng~t to
7
housing, and11tr.us., that there IS a1?;.,t\tn] fa. Cle v10lation of their aforesaid rights
under the Afrman Charter.
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35. Specifically, ana.r}~;tl response to Jhe',; espondent State's contention that the
Co'~u~cation d3@,~::Ji!:~,! set ou,t,111~;,;prirria facie violation of the African Charter,
the. C\$mi?~~i{1~:1ts s~lS~~~~~"s\]t~t~~f"'the a9ti~ns ~nd ~~actions of the Municipality
which h~s led :!~.;-tl:i.~,1r hvin~ 1~ poor hofs1~g cond1tions, as well as th: ~act _th~t
they n9~ <faCe•·,,, ,al!l ,, ,,,e,v1ctlon application due to the Mumc1pahty s
~isrepres~i~fation a~1!;_n:e?;Iect, "~h~wsl a se:ious violatio~ of, the Applicants'
nght to resr,ect of the 'd1gmty that 1s inherent m a human being' and amounts to
degrading ai(.;ti!)human treatment, contary to Article 5 of the African Oiarter.4
36. Furthermore/'the Complainants submit~ed that the Communication is not only
based on the outcome of the pending eviction application, but also on the
following:
Human Rights our
Collective Responsibility
(i)
A breach of Article 19 of the A:frican Charter, on the basis that the
Municipality failed to deliver on its dkties to assist the Complainants as
they face eviction, and also to dciliver on its promise to upgrade their
living conditions. They note that the Supreme Court of Appeal had
agreed with the finding of the High Court that "the municipality had not
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dealt with the problems of infor~al settlement on the property with
measures of alacrity which could reasonably be expected of them". To
this end, they argue that they desei ve to enjoy the same right and respect
as the rest of the country, which can only be achieved by the
Municipality - a sub-national g0Jernment,9f{ne-J~espondent State - in
liv~ng up ~a.its commi~ent to ad~ress:tli{Co~pl~tpants'_housing crisis
or m providing alternative accommoda:tion;<fhich ithas failed to do.
(ii)
The decision of the Constituti~ri:al-G:c{tirt to-"qi~l)liss.. t.he---C9mplainants'
application for leave to appeal dJnied ··the;m an ::e'ffective--ren;1ecly in the
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fo~m of suitabl~ acco·mm•·
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. :-.•.ati~1/ _eithe1\~n porti'~n:. 1. or -any other
smtable alternative pronet, .
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(iii)
A breach of Artid~ 22 ,of 'th~/~jrica~-:€ija.rter, as the C~mplainants had
"lived in a sev_ef~ly overcro~ff~lc;l place--,thqt resulted in dangerously
unhygienic c?fl.Hi\!~cs an~l!4~��I~\~s soci~l':,,p'tcilJlems" prior to being
moved to PorJtqn 41f~ftqrrj,io/1iich ifueyjifngw fate eviction.
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37. The Complai11_a,nts further stat~<t~~,t it np.akes,1i¥to sense to wait for the court to
grant an evicti9n order against tn~~,Jrom Portion 41, given that they do not
have any:"herf ~l~; to go, and did nof\~~f>themselves in their current situation.
They claim that \, the Respondent, [$,tate] must take necessary measures to
e~s-01.f:,~}hat [theyL~ay_~ al~ernati~e,;ac~oF,odation." They further argued that
this \g>..~;Q.qtJ2nly a case._. 9£:ngpLto ;housing (as alleged by the Respondent State),
but o'n~,~lli~h,:;gpes to thei<:figru:fy and respect deserving of the Complainants by
~irtue qji\bei~~:;::h:~~§1:n. -~hat it _is a ca_sef that revolves around the fundamental
nghts gu~~;K~teed tb-'~1:}JIT the ~ill of Rigrs of the R~spondent Stat~.
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38. The Complc,1.:mants also subrmtted that all domestic legal remedies have been
exhaus~e~ bi~~sl::on the following facts: Ithat the counter-clai~ for a relief t~at
no eviction .:j)Jakes place before thef. are afforded smtable alternative
accommodation, which they asked for /in their notice of motion in the court
proceedings, has b;een decided uporr- the outcome of which has been
unsuccessful; that the Order of the Hig~ Court that the municipality purchase
the land was set aside by the Supreme <Iourt of Appeal; and the COJlSJitut~l
Co~rt' s di~missal of the Complainants' Iapplication for le~ve . . ~otlt~~"
.
ba~is that it had no prospec~ o~ success on_ appeal det~r~ne'.¼~t):f'lmal th~;\
claim for enforcement of their nght to housing and to live m c;f~gni~~~.
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39. The Complainants submitted that, a there is no court superior to the
Constitutional Court, its decision leav~s them in a position where they are
without any other practical legal remJdy other than eviction. They further
argued that it is no answer to say in tHese circumstances that the case for the
eviction of the Complainants must proteed, because waiting for the courts to
evict them first before taking action to Iprotect their rights would be illogical.
They argued that they have no other aternative remedies, due to the fact that
the Municipality and the appellate cour shave refus.ed to assist them. They also
claimed that if evicted, they will have o shelter over their heads, and if not
1
evicted, they will be condemned to continue livJ;:f ' ~}!ltkeir current inhumane
1
circumstances without any relief in sigh~.
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40. The Complaina1:ts further argued that t~_e::S~~it\~B~~a~f~.f~ aime~ at a State
Party to the Afncan Charter, because tp.~-Respoi:ident,$tate~!}a,s~1kY<Yirtue of the
provisions of the Housing Act 107 of:.1?:~7, plac':~~\on rit:~~Jfip'alfi:ies;lt~~duty to
deliver housing, which it has fail¼~·o·r:rJf~sed to\do notv\fitJif>t,anding a pending
case for their evicti~n._ They a11df~',g,oted ·thflf!~?;r~tiant to the:~~J~ing Act of ~he
Respondent State, 1t 1s the duty:q,9,£, the national governme1J:t:::,to "set housmg
policy, to set delivery ,.&bals ancri:\~~j1gets 'a~~-"~o promot~ the capacity of
provincial and munic,~r~¥'Rovernme1;f}:in,?, thafa,!1~J~~-ets of Government in the
Respondent State al:'e,mteri~lated '?~&mte~g1~pende11t.
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41. On the requirement df>Artide:y§6(6) of the Afi,J~an Charter, the Complainants
averred that ~the present coITI.Iiiti,n,tc;:aticm wal1~ubmitted within a reasonable
period. They:,.,sµbmitted
that the '"&pbeytitutional
Court order dismissing their
,
·;,· ,,·J ,.:h
appeal was mc1.de on 7 May 2009, and:j@i.at they submitted the Communication
on 13 August 2009;, that is, within ai:pe:i:!i~d of three months after the dismissal of
thJ\~Rg~al. In stip,pbi:t~f thei:. r~~itio,, they_ appended to t~e~ su~missions,
corr~§PC?,:r:t:<i~nces exchi;ing~ci""w1tl1.·the Secretariat of the Comm1ss10n m August
4
•
42. :::~:;~::)~1~§~f?}:the C:mplailm subrrritred that the case has not been
referred t6:1~~y other ,international inves igation or settlement mechanism.
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43. The Respondent State argued that the communication is not compatible with
Article 56(2) of the African Charter beca~se no violation of rights in the African
Charter has taken place and that the Cor!nplainants have not made out a case for
the prima facie violation of rights in thJ African Charter. It therefore ~ub,roitted
that the Communication is manifestly umfiounded.
,-, "'"~p.,1-4 ANo P£:o;,</Z.~y, ~p.,l',,IAT
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44. The Respondent State ~ubmitted that: (ii the C~mplainants do ,?} ~g e~~R - -.Yo \ .
they have been evicted, and the
adrmt that they f~rre, tl~iwe \ u, 1
accommodation; (ii) at the present tim , the Complainants are.~nl facm'""~,-sil J f:J J
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application for eviction; and (iii) theri is currently only a pending case for
eviction of the Complainants in the domestic courts.
45. The Respondent State, therefore, submihedl that it is unclear what the basis of
the complaint is, or when the alleged vi~latio_n of the African Charter a~o~e. The
Government also argued that the Cofpl~mants expect the Comm1ss1on to
examine the Communication on the presumption that if the pending application
for an eviction of the Complainants in he domestic courts succeeds, they will
have no shelter, or that if the applicatio fails, the Complainants will continue
to live in unaccepta"~le circumstances, nd to thi~;::encbr~ontends that in either
scenario, the alleged violation of the Afr can:cha{t:~;Is'•t~l)ant on the outcome of
the South African Court proceedin .s. I},::f:Jbelefore> ·~ubmitted that the
Commission lacks the jurisdiction to he,i t
'mall~~t,,->,,1)\;,:~_
46. In addition, the Respondent State a~~ffrd that i~ Cdnjpfairi~ftt§'~}?l~:Purpose
in bringing the communication t9<1tRe}~.Qmmiss·i~p is to,lj~y:_e the Commission
:~:e:~; ~:~r~:::~/::!a~J~r::11!;t,Yo=~:~~~t,~~a::!1:~ ::
communication replicates that of t]b'.~\~~peaf",fg~9,- by the Complainants at the
domestic level, and t~9-!'.;~~e commu~{llipri cort~~~l~.~~e viola~ion of domestic
law~ and does not... ~~pl~;B;~ow. ~~-e,0?1'::~~.l~!legeci\:y:,~1t>~ate r~ghts under_ the
African Charter(;iiill~fi¼fh ca~?!,,t;l;>e coms1d~:r:§~ cp;mpatible with the African
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Charter.
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47. Furthermore/" regards the requirep:,.~nt of Article 56(2), the Respondent State
submitted th' the communication'··11{;:I~0t addressed to a State Party to the
>
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48. ThJ,I.{~sg9ndent sHit&),gJgµed
,tlJ'~f eve if, in due course, an eviction order is
;?'..!?fif:l?:~:.'
hande~g
, the question still remains which right
. ,), dcf~'}:l;;,~gainsttli'e?eomplainant
..... " ...
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in the ·~{r.i. c•.a. ·. ··n·····>\~van~r.·•. C. ould allegedly le violated, as the African Charter does
not prov~~f:rigRftcfa~~~ss to housing.
.
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49. The Respon~~nt State further argued th. t if the Complainants are attempting to
rely on thei:i\~u:p;ent allegedly inhumaJe living conditions as a basis for their
complaint, stj'cK an application has nJt yet been brought before the South
African courts, as a result of which t'e Complainants would be basing the
Communication on a cause of action t~at has not yet been brought before the
domestic courts. It further argues that rfgardless of whether the Complainants
rely on their eviction or on their allered •inhumane living. congiti0J:1s~
~al
remedies are available to them.
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50. The Respondent State also raised ,bjections to the j -~J'i tl~~f
-j,"
Commission on the basis that the Co plainants have not ,{~t e a1f1f~<1 loa i Ul),
remedies as required under Article 56(5 of. the African ChaW~r, a th1!"'~'tti •~ ;; .·';
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application is still pending in the nationa Courts. The Government argued that
until such time as an eviction order is grahted. by the domestic courts, no action
has taken place which may violate a right under the African Charter.
51. The Respondent State relied on the decdsions of the Commission in African
Institute for Human Rights and Developmen~ (on behalf of Sierra Leonean Refugees in
Guinea) v. Guinea, 5 and Jawara v The ckmbia, 6 to support its argument that
domestic remedies must be exhausted anti that the Commission cannot act as a
court of first instance. It contends tha~ local remedies are available to the
Complainants, and they have not explaitled why Jh:e:se,:remedies would not be
effective or sufficient.
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52. The Respondent State further contencls ~ tna~ti'.:,the 1~ecision which the
Constitution~! ~ourt declare~ ~nadmis~!¥i~;~nly 't~i~:t~s~l~t!~~./~-?~plainants'
counter-application to the eviction apf}haation<~r~mght. ,~y_ the· prqg1~rt¥,,owners
in t~~ So_uth African ~o?rts, an1, ,tha(~,~ effect '.pf the ·,c~~~titutio_ria1 Court's
dec1s10n 1s that the dec1s10n of,J~~ Suprefe.,_C?µJt of Appea¼l'P!.~1,ermg that the
matter be referred back to the:(Hi'gl'.t.1~ourtt ofS>oufh Africa, sta11~S:
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53. With respect to Artic~~i:i:56(6) of tfte;'.':fo,frican··cha!ter, the Respondent State
contended that, assurri.'.ihg:·,tp.at loca!;;teh.\~tjjes wete/~~hausted (which the State
disputes), the Co_mp1~ina:rif~:?}a",~r:fKot silil5%ilJted tlje communication within a
reasonable tim~~ •Relying on'i)t~¾~ decision <oJ,c:tlre Commission in Majuru v
Zimba~we, it f~erred that the _c0~~ssiof has,;;f6und a per~od ~~ six ~onths to
be the mternatf9nal standard m det~Jf.ll,inmg a "reasonable time' m this regard.7
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54. To this end, th~\State submitted thatJt ·e order of the Constitutional Court of
So1;1::!~._Africa indsif~t~~ that the C9#.ipl~i~ants' appeal was dismissed on 7 May
2009~'.i
::yv:lgle
it appear~.
th~V:the
Oommission
became seized of the
..... ,
.
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COITm"l,Uhiq~tfgµ after 22. Jl,ebr.uary 2012, which is the date indicated on the
Comni~~icitr~~:'.;-:"\:Period of more tha1 nine months after the Complaina~t' s
appeal vv,as ,,a,'lsrmss~{;l:,It;,also contends that there are no good and compelling
reasons Jity"the Co~l~sion should nolapply the six-month timeline, strictly,
1
in this case'.•·,,
'
55. Furthermor~'.!tKfRespondent State cont~ ds that the test under A r ~ · - ,
0
not when the complaint was first submiltted to the Commission,
~~~rthe '°<«--:-.,
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Commission was first seized of the matte~".
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5 (2004) AHRLR 57 (ACHPR 2004).
6 (2000) AHRLR 107 (ACHPR 2000).
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7 (2008) AHRLR 146 (ACHPR 2008).
PagelO of 51
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56. Consequent to the foregoing, the Respondent State prays that the
communication should be declared inad iss:ible for the following reasons:
I
(a) The communication is not addressed to a'State Party to the African Charter;
(b) The Com.mission was not seized of thb Complaint within a reasonable time;
(c) The Communication does not set ojt prima fade violations of the African
Charter and is manifestly unfoundedJ and
(d) The Co~plainants have not exhaJlted lo~~}t_·_;~r•/·:·~.;:·':·tn.:.'.:::rt1i~-~-.. ·. before seizing the
Com.m1ss1on.
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57. Article 56 of the African Chart~rt;~~~~~-; ~~f\seve~:;:;
that a
Communication _br?ught under_1ffk~e'-"~~~f the ¥frica~ ~~~rter rr.iust ~atisfy in
order to be adrmss1ble for con,~i;~,ratio~f~l?y,:·Jh~;~om.m1ss10n.. _1 • :;reqmrements
apply conjunctively and cumtila:'fiS;:~1Y.- -~aihir,~-~to satisfy any gme or more of the
prescribed requirements,,,renders
'tl-}:¢'.:,Gom.rri.u.ru.c~tion
inadmissible, unless a
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.
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·,
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Com?lainant provi~)~· \~ufficient "Ji~,~}~catiori:s:<\·a.~_. Jo why any of the
reqmrements could :i;i.ot be,;,Il}~t.
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58
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that the Compip.inants have ful£Hf~4hll~ ~equirements of Article 56(2), (5) and
(6). Upon carefuJ examination of th~~,)ficfs and submissions, the Commission
cog~iders that th;fr~qui:ements ur:i,qer'ft~e uncontested Articles 56(1), (3) and (4)
ha~~:,b?,en comph~d'-~1th and vy\p, therefore, only analyze the arguments of
n,
~~s;~:~~
~1,
~~?:0..,.~;;·b·::-~sed.
"oi\)~~-,J~r!~sted pr ovisions of Article 56 of the African
,
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59. Article 56(7):)!if the'Afi,i~an Charter states that "Communications ... received by
the Comrrlis,sion shaU;'rie considered if tHey ... are compatible with the Charter of
the _Organiz~~:!on of African Unity or w{th the pr~s:nt Charter." In the case of
Kevzn Mgwangq;:(Bunmeet al v Cameroon, tllite Com.m1ss10n held that:
The conditi~~/relating to compatibility .ith the African Charter basically requires
ili~
I
•
The Communication should be brou~ht against a State party to the Charter;
•
The Communication must allege prima facie violations of rights protecte b .
the African Charter;
003d s3a .J.~•·.
•
The Communication ~haul~ be broµght ~n respect of violationlat,~1:l±ltil,1,,,1,,tz,o"<>'\
after [the] State's ratificatzon of th~ African Charter; or whet~·tfh«;,(olitf_o. ns q.t \
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began before the State Party ratified the African Charter, have continued after
such ratification. 8
'
60. As regards alleging a prima facie vio]ation of the African Charter (ratione
materiae), the Respo~dent S~ate_ con~endslt~at th~ Compla~nants have not made
out a case for the pnma fac1e v10lation o~ nghts m the African Charter and thus
that the Communication is manifestly ]nfounded. The Respondent State also
alleges that by seeking to rely on the,·r current allegedly inhumane living
conditio1:s a~ a basis for their complaint, the Compl~inants would be basing the
commu~ucat10n on a cause of act10n thlt has . not/.yet b~~n. brought before the
\
domestic courts.
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61. From the facts and arguments presented, th~,'C~rrµnissim.1 observes that the
allegations by the Complainants in the Jf;ti:s~.ij!]:~orlujiuti-ii:i§!:!i5J~.ai:~.. two-fold: (i)
allegation of the violations of Article~'.'q/19 ana;gi, of fh~1\frican,C:!iart~11, which
are ~t~ted_ to have in fa~t occu~::-t;3'cl~{:;~+~~ resui!) of the:}eported ~.acts of t~_e
Mumc1pahty - a sub-national .<g<:)Vernn'Wi:! of }ft'e Resportd~i:lt _State; and (u)
allegation of the violations of, Arh<;:les 5, ·1z1:,J8, 19, 22 and ·24 of the African
Charter,_ w~ch the_r cont,~n~ ca~bf)?\fhl·l,fiii~~i'.;~.·~.-..e· ss t,he Complainants' right
to housing 1s fulf1lled,; <which m turn/: is predt~!itt~d on the outcome of the
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pending ap~li~a~:.~;f{:,r e_~i~~:n
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62. ~he Comrm~s•··.;·•·p·.'.·i,Jl.• ·"no;es,, that -~~e:•···.:.:t·e·rm pJ:ma··fi.•~fte' •as_ us~d m 1!s JUnsprud_e~ce
simply reqm¾e,s that at face vahle:. or pon 1?1ere s1ghtmg, without reqmrmg
either party \:fq adduce any evide:n:~f, it should be possible to come to a
conclusion tha:t the Communication~ c'an be accommodated within the
co~petence ~f(f~~ Commission gp )liF grounds that it alleges that rights
reGpgl).ized by the,:Afr,ican Charteriffave Been violated.
.
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63. In Comm1.J11icqtion 333/20O6:::f·Southern Africa Human Rights NGO Network &
Others. v. Tanzania,. this Commission held that "the Commission is only
concerned wfth 'whether :there is preliminary proof that a violation occurred",
and there':fa,::no obligation on a complain1nt to ,, show with sufficient clarity" the
alleged vi~lci\ions that have triggered thJ submission of a complaint. 9
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.
64. In the preserir case, the facts alleged qy the Complainants and the attached
documentary ·evidence of the housing si~uation of the Complainants (including
the annexed judgments, the photograpHs of the housing and living conditions
,t/;~~
8 (2009) AHRLR 9 (ACHPR 2009) para 71. Also see MoL, v Botswana (Communication 97/9a)a/2_QQ0]
ACHPR 25 (6 November 2000).
I
1:
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Ptv~
Network & Ot,,/tf1J:-·<ti'iinzania 47th<"
Ordinary Session ACmHPR 12-26 May 2010 para 151; Communication 351/4 o'jj7c'<;l~~YJ ·,_
(represented by G_abriel Shu~iba) v Rep~blic of Zimbabwe para 57. Also see Afflica~n,((~~012
~
Chacha v. The United Republic of Tanzania [2014] AfCr· PR 48 (28 March 2014) pa51s 1 9-1~~~
9 Communication 333/2006 - pouthern Africa Human ~ights NGO
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and the ongoing housing crisis) paint am impending danger of homelessness
sufficient to invite the attention of the Cobrrussion. The Respondent State does
not disprove the living conditions of t~e Complainants, the claims of nonprovision of basic services and the risk or homelessness that the Complainants
face.
65. In the light of the requirement of preliminary proof and the arguments
presented, the Commission finds that the Jfacts presented in the Communication
and the preliminary evidence supporting them (see Annexures B, C, D, El, E2,
E3 and E4 attached to the Complaint) sJfficiently~Jrjq.ieo~te violations of one or
mo:e of the provisions of the _African Ctjarter . P.1'.>1.'.ff-ha\r~~:@fcurred (in this case,
Articles 5 19 and 22 of the African Charte~)- / t ' .•i';,
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66. The Commission is of the view that, orr'the surfacer..theie'.ds>ar,dndication that
there is a violation of a right or ri~h:(? ot~~t~~:\;md~t;:J6i"A:~i'i~,~TT::~~arter by
the Respondent State. The determ111ation wnether otR~,1\:rights have been
4
violated or the extent to whk~:;J~ey h'a:Vif ·l:,ee~}iolated i~ :~?t·,I:~levant at this
stage because such an analysis•is:t~guiredi oufy, at the Merits s,,t,;tge. To this end,
the ~ommi~sio~ fi1:ds th~~ the C?irtBJa:~~tnts''11~~ met the requirement to show
a prima facie v10lat10n pfzthe African @'.J;i'axter. •:/·"-.,
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••••,
½
•
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67. Meanwhile, the isstit:~~.l,;roing,r,${:;~ll,,; not ~e :Ueged violations have
been dealt with: by· the cibdi~§tiC coutts c::bi/tlie ,/Respondent State will be
appropriately:· ~ealt with und~'.f:;{'i}e Com!missi~i\' s analysis of compli~nce with
Article 56(5), f~er below.
·'¼J~~~/~.P •
68. Furthermore, ¾:~}1:out prejudice t~, it~;Yabove finding and for jurisprudential
pu{B?~~, with re;~.r~i;:i~_e to the ,~~17$ation[ that violatio~s of the p~ovisions of :he
Afr:e~t_}::,f~arte·r· 'wo11!d:~~s~~,-.•i1:}the eVtlent_ 0~ a derual of the right_ to housing
which\. wo,:uld . _be occas10ned •by an eviction of the Complainants, the
~omrri(t~_ion };~)~~~:~!ul .of and ali?ns i1s~lf with the be~t practices. of similar
internatiqi,:i.c.!cJ::~bodies;;why:h entertain petitions on the basis of allegations of the
real risk dti(etit_ioner~I,eing s_ubjected to [human rights viol_ations. This posit~on
would be '1ri._ lme with Articles 60 and 61 of the African Charter, which
encourage tHJ:c.. •Qmmission to draw inspiration from international human rights
·.· ."·•· ·
I
law.
_,:,··
69. As regards the requirement that the Cdmmunication must be addressed to a
State Party to the African Charter (rationi personae), this, as demonstrated by the
establishe_d _jurisprudence of :he CTommission, only r e q ~ - a
Commurucation be brought agamst al State party to the ~~~~J;':l}a<it~r,
0
alleging violations for which the State Pa~ty is allegedly resp~'t~~
.:;/;o;
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70. Further on this point, the Commission ishes to note that Jt1e he 1~ · lar \ lflt\
in its original format, listed the "Ekur uleni Metropolitan\~ "cipflj!;J; d 7...,,
1
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African Commission on
Human and Peoples' Rights
Human Rights our
Collective Responsibility
"the Republic of South Africa" as res, ondents, the Commission recognizing
that its jurisdiction is limited to State arties to the African Charter, became
seized of the present Com.m.unication oply in relation to the Republic of South
Africa. This position is reflected in: the registered name of the Com.m.unication,
1
the Commission's communications to t] e Parties, as well as the parties' various
submissions on Admissibility.
71. Article 56(5) of the African Charter stat s that "Communications ... received by
the C~~ission shall b~ ~onsi~ered ifl the! ... are ~~nt _after exhausting local
remedies, 1f any, unless 1t 1s obv10us that this pro9,e~;t:Pl.~.1s unduly prolonged."
~his requirement is pr~m.ised on the p~inciple,,,1ty~l''tfrJ:~~~ ~pondent state must
1
first have an opportunity to redress by its owrr1im~ans w1~~n the framework of
its own domestic legal system., the w ong".j:!-lleg~~>:Jo h~y~ been done to the
individual."10
• F • ,,..,,. 11lc: '~"r::_,. !'{;·~.
_,_.
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72. On the other hand, the Com.plaipant~)i:laim. tli~i all dd
have been exhausted, in view ~J:J~e fa~f ·t~atth~<t~lief whic
sought for the
,'. provide them.
protection of their rights - tlia.Fi§!l:trthat the:J0µnicipality sh ?,y,?
1
with alternative and a_d~9.uate h~
as c'6~?!f:utionally 6bli~a~ed _and that
they should not be eviftrd pendmg ·s,11sJ1 provisl,Q}l by, the Mumc1pahty - has
not _been granted. Theyaf$,cp, subm.itN~i~t:,ithe highesfcourt in the Respondent
State has declar~µ:tfl~.~ thJfi~tr,'.~Jli{d p~os'p~~' of ~uccess in the Complainants'
'ff~iR~r
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73. : : e : : : : z l o : :
as ther: is no court superior to ilie
ConstitutionaLG;?urt, i~s deci~io~ l~.1rv,:~ij1;;fhem. in a position that t~ey have no
re~.e~y and fac.e·,p···o·s•s··1ble ev1cho·n·1,·'·,: 1?:ht.
ey attache~ to the com.plaint, relevant
dec1s19ns of the . national courts, fr m. the High Court, through to the
Coii~tiftitiq1:1al Court<(see,Al)Ile?(l;l;f~S B, I and D annexed to the Com.plaint).
th~·· ;~;~o~~ent StJe
argued that the Complainant has not
74. In th;;:~:;~:t:t~se,
' '
.,' . ·•. • •. ·,
I
exhauste?=ij,5fnies'tic r1medies as the Eviction Application is still pending in the
nati_onal C6:4rts. Whi!~t~the Res_rondentlState contended that local re~edi~s are
available tcUhe Complainants, 1t has not shown how the local remedy md1cated
to be _availa~k, would suffi~iently redr~ss t~e r~ghts alleged by t~e
Com.plamants., 'to have been v10lated bearmg m mmd that a remedy 1s
'sufficient' if it is capable of redressing lthe wrong com.plained against. On this
point, the Commission finds that the Respondent State has not discharged the
onus to show that the local remedy it is holding out is "sufficient" 0 \ilp..N AN;;,;g--
j
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1
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75. In this regard, the Com.mission notes that the Eviction Ap z id'aj;l't e
th~\-.
0
national courts which is referenced b~ the Respondent : tte el~Jo ~
,8
;,,.;..:<-·: ,U\'/ 5 <r, I
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10 Purohit & Anor v The Gambia (2003) AHRLR 96 (AC
I
PR 2003) para 25.
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African Commission on
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Humen Rights our
Collective Responsibility
recovery of a personal property by a thirtl party, being the Trustees, and does
not involve the determination of the rights! of the Complainants, which are
alleged to have been violated by the Resp1nd~nt State.
76. The Commission notes further that iJ w~s in response to the Eviction
Application that the Complainants had filed a counter-application against the
Municipality in which they sought reliefs ~or purposes of protecting their rights
- that is, to alternative and adequate housing and the constitutional obligation
of the Respondent State's municipal govJrnment to ensure that they are not to
be evicted pending such provision by tlie Municipality:, The. reliefs sought in
this counter-application have been litigatJd befofe.aif'th~'-~ational courts of the
Respondent State, including the highest botg:(tri'Jhe Ian~.\-- the Constitutional
Court - with no success.
• ·, ••
••
,.,
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77. The pending suit before the local coq~ffrelates:,tq;;,the ·aRpgcanbn::fQfevJction by
long'er:e~dures a~ainst the
the private owners of the Prop)(ty~t,~tt~~ suit
Respondent State. By the Re~pq!ldent ·-~~~~~, S<J>ccount, the<5=~?J-plamants are
expected to defend that suit agalrist the ]Pi"iy~t~ owners ever:,)!hhugh, from the
evidence presented to the Comrriissi~i:i, the 'C{9:i,:gplainants have in documents
filed before local cou:i;ts:. prejtidicially.,:~c:,1Jknowleq.g~d that they are in illegal
occupation of the pr~p~rty,:. They/4hf'<l~2;)·ecorcl'i,;t~:>!~clmit that they "never
obtained the P}t;:&§~J?n ·, ot~~~<j;~st t$\i~si~e ,,0.h/ the ?roperty" ~nd ha:e
repeatedly re~~fred t:o themsely;~:s,, as the 'fUnla,;h1ul Occupiers of Po~tion 41" m
d_ocuments f,~fore . t~e courts.it>•~o"'rver, the_Y not only dispute the
circumstance~::Qf their illegal occupa,,fio~ q!l, the basis that they moved unto the
property at the!J1,1stance of the RespondeJ(state, they also invoke the obligation
of}~e Respond<if:it>.?~te to _provi17 ait~~native ho~sing and essential services
pur~ua~t to South,~fi:!fa's Bill of))}ghts and the Afncan Charter.
1
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··, :cfit::?;,)t:,,:;t,;r(:~::/
I
78. From\the·-C9m111ission's
point, the present Communication before the
Conu.ni$s}~n.pe,r-t1ins.. t~ allegations of hur! an and peoples' rights violations, not
by the pq:vate own~rs. of the Property but, by the Respondent State. The
communica:tion proce~ded after the coun er claim against the Respondent State
had been det~rmined with finality by the [courts. The counter claim pertained to
the housing\crisis of the Complainants and the necessity for alternative
accommodati6n and essential services. The decision by the Respondent State's
appellate courts that the Eviction Applidtion by the private owners before the
High Court should proceed seems to foretlose the Complainants' claims against
the Respondent State for alternative and dequate housing.
. . ~ 1-1uM;~ ,
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vantage
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11 See Annexu~e B - Ebrahim ~ada .NO & Ors v Unlawful eccupiers of Portion 41 (a. pgitio
the farm Roozkop 140 as described in the Deed of Transfer Mo: T2849/2004) Case No: OP/c;!
delivered by NA Cassim AJ on 15 February 2008 para 13.
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ACHPR
African Commission on
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Human Rights our
Collective Responsibility
79. Given the appellate courts' or~er dismissing t~e Complainants~ appeal_ against
government, the Counter Claim for alt~rna:tive accommodat10n against the
Government is considered to have been d~termined with finality. What is left of
the suit is the Eviction Application brdught by the trustees as the private
owners of the property. Based on this fac~, the-Commission holds the view that
the Complainants have exhausted local remedies against the Respondent State
in line with the requirement of Article 56(5), considering that the pending
Eviction Application has no bearing on the responsibility of government to
provide, at the very least, temporary alte native accommodation to address the
'·:,:-,,.,
Complainants' housing situation.
1
__,(;:i•••······••::.,
'\"
80. The Commission further holds the view taaf~;}R,f Res~~rdent State has not
shown that there is any other practic~t:49mesfiG . re111~~y available to the
Complainants other than the referenc~g:Evi~fiof A11~,!la'.tr,§,{l;:::y\T,W,C.:h has been
found to be insufficient. To this ~~d; liaving/?,btafn~$cl flrial-ljq~ginent in
respect of the co~nter-applic_at_i~f/the, J{~~pon~~~t. State fi_~~i;ot _,de~onstrated
how the Complainants may in1tJi:!-te anothei.\fl_cf19n in the do1+1~.~p.c court, based
on the same claims and reliefi?tJ~gllt in i:B:e\z·9µnter-applicatigit without being
estopped from doing so,):?ased on" t]i~,1go~tririe\6f:.res judicata (which means, the
matter has already beE;r{~ajudicated ~P8J,_by a c·o~p~t~p.t court).
81. The above vie~: o/~~;'<~tn1r1i~Jfi~' ;~]il:~~ten~~:.:: 'the contention by the
Respondent State· tR~t th~<:·,1reged ihlTuhiivf living conditions of the
Complainant( which is being
u~
n as{bne of the bases for the alleged
violations, haf r~_ t been deal: witfft~h_l_·-.!_~'~omestic courts. This is not quite_ the
case. In the de~i,s{on of the High Court;;G;: • exure B attached to the Complaint),
it can be seen "that. the issue of the, living conditions and the urgent need for
alf~;f:19:~ive accoriirµod.€\tion for t9{1ComJPlainants was duly raised and formed
the q~sii;o(the coliht~i d~imJtc}jti.dicatedi upon by the courts up to finality on
appe~i::-, ·--,,;~::):;·.;)-,.
•·- •. '. -~-- •
' \.:\
.::>·;·);.://':·: >>~~82. In this r'e;g~r~{the''Gqtrµnission finds that the Respondent State has not shown
how the \~:pmplaina~t~ may solely litikate this cause-of-action against the
municipal gihrernment, without being estbpped by the courts on the basis that it
falls within 1i:;:i:µatter which has alreadyl been exhaustively dealt with by the
courts. In any'.-,-event, the Commission finds that this contention will fail to the
extent that it has observed from the text iof the decisions of the national courts
which were provided by the Complaina11ts, that there were ample references to
the Complainants' living conditions, in the context of the absence of provision
of essential services to them.
'rell~q
83.
1
.ft~~~~
ACH P
!J"' African
Commission on
Human and Peoples' Rigbts
Human Rights our
Collective Responsibility
Complainant to seize the domestic cour s. The Commission has stressed that,
remedies the availability of which is not bvident, cannot be invoked by the state
to the detriment of the complainant. 12 Inl this regard, the Commission recalls its
decision in Jawara V/ The Gambia, 13 whef it held that, even if certain domestic
remedies were available, "[t]he existe.1 ce of a remedy must be sufficiently
1
certain, not only in theory but also in [ractice, failing which it will lack the
requisite accessibility and effectiveness."
84. The Commission observes that the Complainants in the present case currently
1
face :he :isk of h~melessness upo~ the 1determ..·..i···1}iti§;t?rgf. ,·.·t.·h.e pending E~iction
Application, and 1s therefore convinced by the,1argume:i:tt>of the Complainants
that "it makes no sense to wait for the aourt::~ik.ant an\~yiction order against
[them] fr?m Portion 41,_ ~hereas they ~o-,f1~\t 1¥~~~.,,an~~,g:re t_o go", before
1
approaching the Comm1ss1on. For th~<reaso11s,_that:;Jh~·,E:GQ1,1Jp~i:lnJants do not
deny that they are unlawful OCCUI?,ier{Jof t~e'\}?t,ope::t1t:~pd"'t1t~tf~il'Qrre of the
counter claim against the gov~rnment~ sugge1,ts thae~~~y have no other
immediately available re·m·.edi~&{~iain·s. t. ·-.1th~ ~~~p~h.dent State~~~lJiJ:s sub-national
·<,::;;fl!J}:;:,,
• :.~l~;;/i\:,
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government.
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85. The Commission hold~}the view tll~ft1; .he Comp1ajnants' submissions in the
9if~}t~~thorffi~'s ::0£ the Responde~t State
present C?i_nmunic~~6~{lNgicate
1
were suff1c1entlyf:~gtif1ed
·~fl~:th~::::;v1olat10ns;~.c,1;Ueg~dly
perpetrated against the
· ···•··:',,.
, ':,.
,,.,·i::
I
·, .,._ · . · ,-,.
Complainants_{{;li:e case,,,havin~i!J;i~n heaJd bit~~Ili:ighest court in the land.
,~1riit
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~J';y~ le
86. On the basis_ iithe f~regoing,
~at
likelihood o'. the Complaina:"ts
succeeding n\:~JJtaining a remedy t~~j}Would redress their current housing
crisis and liv'iii,g,. conditions is ~9 s:Tfi_"nimal as to render it illusory, the
CoiruTrission findi\h~t the requi;~p:i,ent of Article 56(5) of the African Charter
hav~J?~~n, i:n.et by the,\q::2ginh!!JJ®fs.
'\, '~"' .
. . ~ ,.,
•., <.'.::f/~}:;:~Ll:;}{~'.,;/:,.?Y
87. Regaratng th~ :_feq~,irement of Article 56(6) of the African Charter which
stipulate~._,tljat ·e::orprm;nications rece·ved by the Commission shall be
considered 4£ they arf'.submitted within a reasonable period from the time local
remedies ar.~, exhausted, or from the d~te the Commission is seized with the
matter, the R~sppndent State contends that the Communication was submitted
after an unre~ifonable period. The Gov~rnment argued that "the Commission
could not have been seized of the matte~ before 22 February 2012, which is the
date indicated on the Communication~ [and which date] is more than nine
months after the Applicants' application was dismissed by the Constitutional
I
-;;.~
Court". Furthermore, it contended that "the test is not when the c _, ,-~~m1Aw4s:">.,
~"<'- x.-cRETAR14,- D,0 ' \ ,
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12
Jawara v. The Gambia (2000) AHRLR 107 (ACHPR 2000) para 34 (Jawara case).
13 7awara case, para 35.
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African Commission on
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Human Rights our
Collective Responsibility
first submitted to the Commission, but
the matter."
hen the Commission was first seized of
88. In reply, the Complainants argued that they submitted the Communication on
13 August 2009 and, therefore, arguetl that this Communication had been
submitted within a period of three mon]!hs after the dismissal of their appeal by
the Constitutional Court.
89. The Commission notes that the requir ment under Article 56(6) provides for
two events from which the timeline within
which,.,a:Gommunication
has been
I
/ .•'i ·•
·,
submitted may be computed, being: (i) "froi;n};thii"'-ti,rrt~ local remedies are
exhausted"; or (ii) "from the date the Coi1uni$sf~n,Js seiz~fwith the matter". 14
90. The Commission he{d in Tsatsu Tsikata1@J1f!'J/s~;:t~:hq~i;!'_,ment "is quite
rel~ted to the pri_nciple of the exha~~t{~n ~f T_o~~} re~\d~~s~in~a9~~:d_a1J-ce with
Article 56(5). This means that thE:JtX::;;8~ss10rtJ:;fstimat~f' tfle tlmelmess of a
1
dat.e91~~ the'1[.,t;}~'f/,le local r~efly is exhausted
~;~~~::~~n!~~-~~:
91. The African Charter dqes not spe~ifita
ly ~::i~)'.w:11at
it means by "reasonable
. , ;..I~
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time", and thus, the. Co~ssion ha~·~al~~ys ruleq\1?,~~ed on the contexts and
characteristics ot,,.;t,~fh ··case<. r1;,:Jrl\is I r~~~rd, t~~f/Commission has in its
jurisprudence ~t9-pldye9- as a-tc1rfistick, 'he sixiii~nths timeline stipulated in the
America~ C~:9-.··;•yention on_ Hum,~);l,_~.ig.mlts (Af~icle 46(1(b)~ and the Eur~p~an
Convent10n <?,W Human Rights (Ar~1~te 35(1)), beyond which the Commiss10n
;~~d requir~~:;c.omplainant t)tl'"f, a compelling reason for the further
92. Fr6J?1~·the. Commi~sio'i(9._9-nalys!i,J9n Arhcle 56(5) in the preceding paragraphs,
the la',~f ayailah,le locaF'ie.m,/~:sl~-rWas exhkusted by the Complainants - with the
dismis~·a1 oh:~~ir ,application for leave to appeal by the Constitutional Court on 7 Ma:y._2009.,.Furtp.ercmpre, the Commlssion observes from its records that the
present C9mmunicafiori was received kt its Secretariat on 13 August 2009; a
period of three months after the exha~stion of domestic remedies, and well
within the international standard of a "r~asonable time".
, •,
I
93. Accordingly, the Commission finds that the requirements of Article 56(6) have
been fulfilled.
ii
~- ..-, - - ~
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1
Lindsay ~on _Abo v Zimbab7:-7e 57th _ Or~mary Sesr10n ACI:IPR 4-18 Nove~ber 2~5 r,P..~\ 8 J -g, t)
Communication 340/07 - Nixon Nyikadzmo (represerz-ted by Zimbabwe Human Rights GO~{iflJn) v ~ ; t
Zimbabwe 11 th Extra-Ordinary Session ACHPR 21 Fe ruary -1 March 2012 para 100. ~
IJ-1.lf>~ "'l
15 Communication 322/2006 - Tsatsu Tsikata v. Republi of Ghana (2014) para 51.
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14 lv!ajuru v Zimbabwe (20?8) AHRLR 146 (~CHPR 20
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Page lo er--5
African Commission on
Human and Peoples' Rights
Human Rights our
Collective Responsibility
Decision on Admissibility
94. In view of the above, the African Co mission declares this Communication
admissible in accordance with Article 5 • of the African Charter.
Merits
Summary of the parties' submissions
A. Complainants' submissions
,1::f,1:,iJI4,f'.:;1:):;;. ,
95. The Complainants submitted that by f iling t<l rovidelt~pequate housing for
the 76 families occupying Portion 41 of the R~f •c'i< ooikori!IR40, the Respondent
1/~~'.t ""' . , 22 and 24 of the
State is in violation of the provisions of,...\,,:Articles''sll:'17,
".' ~'.:,·'
"..fJ'.?.:
African Charter. For their submissions/ 0ri the inerits)?tij"
'/ 1•· lainants relied
on their submissions on admissibility:1~.;
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(i) Alleged violation of Artic1e 5 of the A,jf,jjpan C 'cii:.f~:r . .· ~el
<0f{Ni";,,½{'.;{}J;,
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96. The Complainants alleg~:~ that the4'~~~:¼.i ns oft!i,~\~unicipal ?ov~r~ent of the
Respondent State amoJuited to a total:::Jq~,k
of respgc~
for their d1gruty contrary
,,-,bv-,,,,,,1-")-/ ,.
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1
to Article 5 of the Afr1can,~l}arter. ,:?':::• ' J]J,!t}k,
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97. Article 5 of the: A.ff1eari:,Charte'.~1,lRrovides for t~~::1Jght of every individual to the
respect of theJlignity inherent i:fr]§!.:;hum!n beiQ!f •
98. The ComplaiK~i:its contended th~:?~:\{ I)Jing to provide adequate housing for
residents of thej::>r9perty which they t~porarily occupy without the consent of
1
its\i.1,:tg·.··}·,1···t.f···u.1. . ·o.·w···.n·. . ·.er.s\ t~e. ina~tio.:1..8! th1· M~nicipality in th~ Respondent State
amo.~~~,tp a v10lat1op);>ttl}~}rpght to d gn1ty under the Afncan Charter.17
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99. The C::~1)1.pla:'Ir{ji\~~,)urther argued that the non-provision of housing by the
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Respon~~ftt!?fafi~,,s~~t~1::1Jcipal goverruyent war_r~nte~ their ~nitial temporary
occupatIO:r,t(bf Portiqn,,•.:rn. They argued that hvmg m Port10n 40, an overcrowded t:ri~rshland,'<was dangerouslylunhygienic and unsuitable for human
habitation. fh,n)t;,claim that their subs quent relocation from Portion 40 and
illegal occupa,.fi6n of Portion 41 was bas1ed on representations by officials of the
Municipality to acquire Portion 41 and }rogressively provide adequate housing
on the property. They claim these reprerntations turned out to be untrue.
16 See Complainants Attorney's reply to the Commission's email titled "Re: Letter on Communication
377 of the Complainant" dated 28 January 2016 pard 3. Also see Complainants Att9~~..t~the Commis~ion' s ema!l dated 16 May 2016 para_3 .. I . .
.
;~:~P.RIAi P<:o~
17 See Complamants' Written Address on the Adm1ssib1hty of the Complamt (d.f~~ai'?brua·
201~'\
paras 7.1-7.1.1; App~cants 1 Respon~e to Respondents Second Submission on Admissib~,\~~n
t
behalf of the Republic of South Africa (dated 8 Mar h 2013) paras 1.1.1-1.1.7. ~
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100. The Complainants argued that the neglec by the Respondent State's municipal
government to fulfil its obligations to pro~ide! housing amounts to a violation of
their right to respect for human dignit~. They argued that the fact that the
Applicants now face imminent eviction and homelessness at the hands of the
IDM Trust due to the Municipality's misrJpresentation and neglect is degrading
and that such inhuman treatment is prohibited by the African Charter.
101. The Complainants also submitted that bjpre occupying Portion 41, many of the
current occupiers of the Property submitted their C forms, containing an
application for housing, to the Municip!lity. 18 1]1¢;y'.:c,!rgued that it was their
understanding that Reconstructive and D~veloi;>.1¥~;t-P1:qgramme (RDP) houses
would be built for them within five yefs, i~;~qt earlier.;;~s from 1997. They
claimed that on 20 August 2004, frustrateci by yea~s,12f w~l#ng for houses, they
met the Councillor £or Ward 35, Germisf8n/A~riel
advised that
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the Property had been purchased )::i,i;:;hy ~u~si,palit;z.~J,:R~ tnat-£tl:i~)eside~ts
were now free to move on to the.~rope~t~\smce ~h,e RDPh9\l,~_~s would be bmlt
th~reon._ They further :l~im~~, ~~~! this t pr~,~~n_tation by tntii~~y:nicipality was
reinforced by the Mumcipahty's·P,~O-fUreipei:i-t:?l a Grader on,,9November 2004
to grade roughly half of !l1-e Properfyfo[ their'd:~~lling on the property in early
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December by the 76 ~.9us¢,holds.
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102. The Complaina1;~~:}t!;; s~~~it~~~}:tW;~ t~J"'~~r~fac!:tn~t,the Applicants took the
in~tiative to re,1?:9l~e their housii:i?~nd livihg ptr'f?Jems i~ Portion 40 by engaging
with the proi;ncial and local gqv:~rnm~nt p:i;,oves their desperate need for a
better life. 'TI;i;i~y claimed that th~'-decJs~o.n of the Municipality to leave them
high and dry'-~h-~uch a critical time 'o{lif~d while givi~g assurances ·:hat their
~l;Era:i\ •:it;ii~i~;ift~=tn•jd:::!i;o/'~!:::11t,:;
(ii) Alleged vib[atia,t: offirtic:les 17, 18 and 19 of the African Charter
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103. The Compl~inants ;'ubmitted that the Respondent State has violated the
provisions of Article 19 of the African Charter. They contended that by failing to
address the h~using problem they face, 'the Municipality has forgotten that the
Applicants have human rights that nked to be protected.' 19 They further
contended that the Municipality not only has a duty to assist them in terms of
the Housing Act and the Constitution of/ the Republic of South Africa, but also
has a duty to provide them with alternative accommodation. ifr.'-'t~f~
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paras 1171
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African Commission on
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104. The Complainants further argued that a}hough the Supreme Court of Appeal
in its judgment at paragraph [14], set aside the High Court Order mandating the
Municipality to purchase Portion 41 fron{ th~ IDM Trust, the Supreme Court of
Appeal agreed that the High Court Judge "was right in coming to the
conclusion that the Municipality had not dealt with the problems of informal
settlement on the property with measureJ of alacrity which could reasonably be
/
expected of them". 20
105. The Complainants submitted that they keserve to enjoy the same rights and
resp~c~ as _the rest of th~ country and th~ only .w·. .a·.'Y:~o, .~nt~.y. such righ: is ~y the
Murucipahty, a sub-national government of theRespond,e~t State, dehvenng on
its housing obligations with respect to th i ocq,up~ants of Pdrtion 41. They argued
that give~ ~hat_ they entered u_po~ PortioliHr,~! the~:~n~!a~f·~.9,~ the ~unicip_al~ty,
the Murucipahty should assist m pr~:g.entajg~.them.: e-xictign. or .m providing
alternative accommodation, which itJ{~~ tefus'ec(to do':'-.\·,,._ --<"' •• '-. ••
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106. The Complainants further suQjnitted'(}l}~t g:i.yen that 'the, .S:0uth African
Government and the Constiti:ttk>hal Coufti!:;,e~ist to protect the human rights
enshrined in the Bill of R~ghts of"th,e:,~oilith A'{i,\q~.n Constituflon, the dismissal
of the Complainants' . application fo1)J~i~e to "agp~~l ~n the ground that the
application had no ,prospect of sµ~cess; c;l~nied tl).eriY access to an effective
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re~edy which···.....w.i,~~J~.\~ave:tt~~r.~Ji~.d t] ~i\;:[~q~si1;1fproblem on Portion 41 or
their need for ~Jternative housip.g~
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107; The Compla\n~nts submitted tha('th.~ I do not live in humane or suitable
accommodatiqJJtnd evict_ion wi_t~ou:"-t~~:'remedy of alternati~e acc_o~odation
would put thei1h!<!~d their famihe§" i:q)a~ even more degrading situation than
th@y-cp.rrently are:S1J1ey further ar,rgued that the inhuman nature of their current
accoMr#o?~:ion c;i~iifIQ,r:}::f,,9,f,!i~§J41 is tragically illustrated by the shack fire
which'killec:t q,v:o~ men ii-t'July:2009.
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(iii) Alieged ;idl~~O,~ '~jArtid;~, 22 and 24 of the tican Charter
108. The Complainants submitted that the Respondent State is in violation of Article
22 of the Afr~c~11>Charter. They argued i!hat Article 22 is prima Jacie violated by
the mere facftnat they have had to live/ in a severely overcrowded Portion 40
that resulted in dangerously unhygienic conditions and various social .problems
as neighbours constantly fought with each other over living space.
causea;:;:t0~">.·
109. The Complainants also pointed out that lpart from the water damage
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their shack structures, the constant £lo , d in and around the sha~~s~ ~6IR11l.lilf -"~~..
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presence of mosquitoes caused diseases to spread quickly. Added to this, in
October 2004, three children from the Ro oik9p Informal Settlement drowned in
the flood due to heavy rains and the lacl<1 of critical infrastructure to handle the
storm waters on Portion 40.
1
110. The Complainants submitted that it is a yiolation of their dignity and humanity
under Article 22 to now face eviction bn Portion 41, after moving onto the
property with their shacks at the instarice of the Municipality. 21 They argued
1
:~::;~!~y~~:;n~te~~:!~:~!~~!:~:~;~e i1 illegal ~::;~~on of the property and
111. The Complainants submitted that in the ace,pJi::Jti\Proceedings against
them, they are currently in desperate !1:eed '1cil:::.1il-cconfthodation and have
nowhere else to go to. They do not ~\lfre11fly,,!1~\r~::\h~J:~~g""':1:R.:~~,.they live in
depl_orable circumstanc~s, in self COrl~fr:uLted i:;11,~cks wit:~01.r.ini~a:Uimg~}ic utility
services. The only service they hav,e,isth:e comm:µµal wate)?pomts. •
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112. The Complainants f~rther ave,#~( that :!l~~~~~p_ondei:it_State, ·~~;:the primary
duty bearer responsible for addre ajg tli.e hoq~~l}g cns1s mustlake all
necessary measures to ~n,'.gure that th'I~'¾tgJt altern~fiye accommodation.
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113. The Respondent State submitte4;i:t,hat, i consiqefing the arguments in support
of its case, the. ¢om.mission must't~11SJde the f611owing four principles, namely:
the doctrine of margin of appreciation>tB~-.p;inciple of subsidiarity, the principle of
progressive reali~~({on of rights, and 1th~1!Pfinciple of proportionality in relation to
th~:~ights allege'ci b:y the Complainants to have been violated in this case.
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114. The '~~sR:~i;:i,qent State::argu~d tljat based on the allegations of violations of the
Africa'.i\.~hc1rWr;Jlle following'rights reqiire the Commission's consideration, to
wit: th~<, tg~ :;~o'.h,8}l~.\~g' ~he right to 1~man dignity _(Artic!e 5), the ri_ght to
5
educatlon,:(~rtlcle 12)i:'.•tne nght to proteatlon of the farmly umt (18), the nght of
peoples td\~guality c{r{d equal respect (~rticle 22), and the right to a general
satisfactory ~~~~fpnment fav~urable to treir development (A~ti~le 24). . . .
3
115. The Respondent State submitted that, ~ased on the Comm1ss10n' s decision m
Prince v Republic of South Africa, 22 the Af~ican Charter is informed by: the_margin
of appreciation. In considering the viol~tions alleged by the C q , ~ h e , ,
margin of appreciation doctrine, the / Respondent State ,~;'A~f s ~ ---------~'I
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21 Applicants' Response to Respondent's Second Submission on Admissibility tlt.ged
paras 1.1.7.4.
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22 (2004) AHRLR 105 (ACHPR 2004), paras 50-51.
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Page 22 of 51
African Commission on
Human and Peoples' Rigt1ts
Human Rights our
Collective Responsibility
important role for the Commission. A9d that, in this case, its legal framework
responds specifically to the realities of South Africa. The Respondent State
amplified this point by illustrating thatl within its national context, it is for the
Respondent State to determine what pr1cedures need to be followed in order to
realise the rights protected both within fhe .South African Bill of Rights and the
African Charter on Human and Peoples I Rights.
116. The Respondent State also invoked the wrinciple of subsidiary. The Government
~::ts:~:~: c~p~::::~;t~~;~~!~::::.r ~~
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Government drew the attention of the comm.1:~~10n to ttl~. dec1s10n m Pnnce v
Republic of South Africa, where this 9o~jss!~f:}, held \tl}at the principle of
subsidiarity informs the African Charter lU~.~jL9-ny"'c}thfr int~tnational or regional
human rights instrument does to its s}1::1J-~W1$~~~ bacfi::t;i~tiU~~~.~y;t;~der it. As
such, the Commission cannot substiJ~te itself ft>r;,;dome8-tJr. procedu:i;~~tfound in
the Respondent State.
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117. The Respondent State also reli~4'."on the
of progres.~}r realisation of
rights in t~e Pri~ciples an1, Guidelin~~,:,~rrJhe Inip{~lJ?:.:f,ntation of E'Eonomic, So~ial and
~!
Cultural ~zghts zn th···e,ffr·z·c·a· n. Cha.r.te·r·~'.:t9>Jhe·. · . exte~~::i·:·t·•.;e~.--· _sta~es are _reqmre_d ~o
"progressively and const;inJ!y mov(:J0jaiqs the foll;t¢ahsahon of rights w1thm
the resources av~~l~:~!~,to thi:§t~t~w:fa T e·G~lf~rrur,~J\t argues that South Africa
is taking step~:':~tcr progressively)::ealise he rigptfs··contained both in the Bill of
Rights in the ~-~uth African Constl~:t%tio and in1the African Charter.
118. The Respond~~~ State emphasise;·tli.,kfor the period from 1994 ending in the
2013/2014 fimi~~!Rl year, the State:1:rJ1a,s.)provided 3.7 million houses to those in
ne~~,-of _h_ousing};i~]il~t~tuting a~ tt~b~it4ately 24 % of t~e formal housing ~t~ck
1
ava1lal?Je.J11
the RepuI?.hs,jJr~:r~l'w:;,g1vmg
access to housmg to about 12.5 rmlhon
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South\f\Jricins_.. _ The Respondent State noted that according to official figures
•-- -:·
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from if1(P. . •ep.a,r:~!~Jgf. H
.. uman Settlem_7nts as of 3 May 2016, 4.3 mi!li_on houses
and hortf?g1g,,subs1d1es)had been dehyered to more than 20 million South
Africans. )i_Dd that th~'Department of Hjuman Settlements has set a target of 1.5
million more·.-houses to be delivered by 2019. 24
119. On the princi;,~ of proportionality, t~l Respondent State argued that a fair
balance must be struck between the demands of the general interest and of the
public interest. The Respondent St~te argued that eve ~~~Gan
23
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of Economic, Social and Cultural Rights m the African Charter on Human and Pe~.~e's ightu.,,/iJ..
24
First Submission on Merits on behalf of t~e Rt,ublic of South Afric~~Ptg , 5.13f"-~oitlin9' flt, 1
Department
of
Human
Settlements
nnual
Performance·,:-\_ ~ian"-_3.9;.5((,i<'iY,".,/
h : www.dhs. ov.za sites default files annua . re orts APP low%20res. l?p,8N A~R,c.~"'~':,,/,;,,.,,.i'
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Commission's own guidelines ackn, wl~dges that the rights of the
Complainants cannot trump the rights of th~ community at large, but must be
balanced in order to achieve a fair result.J :
120. The Respondent State submitted that the Commission must apply this principle
to the facts of this case by recognising t I at the Respondent State must balance
between the rights of the Complainants with that of, first, the wider South
African community in avoiding wasteftll expenditure on land that cannot be
I
developed and, second, other people i a similar situation with that of the
Complainants who also must follow the procedur!:!~£or"c1,cquiring
housing, and,
',
third, protection of the proprietary rights of the 0Wners"qfthe Property.
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(i) Right to housing
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121. The Respondent State submitted thati~~. prima£y recoµrs~ ofth~. Co~plainants
in terms of the right to housing is ~,~,dtj,p]il,26 of it~~~onsth'titjo,,,n. Se.d:i6n26 of the
South African Constitution proy,'ip'es fof:_~fu~_rig~f/pf access 'tq aci~qµate housing.
The Respondent State not§Gf;'\Jhat a11!ri:~i-'tgJ:r)'Pthis right i-¢~o'gnised in its
Constitution has no dire~t equiv~i'~~t)n th~·1:t~tiftan Charter~::.'this Commission
has held that the right to-housing is pr·o ected inW;i,~ African Charter through a
combin~tion of pr?visfon(I?;Otecti~~-;the(~tsht to Pi$t?rty (Article 12), the right
to th~ highest att,,Y:]~P::~e sta11Rr.rq,.9I-m.enta1\~n1 P~!,~1cal health (Article 16), and
the nght accoi;Cil~d to 'the farrµly((Arhcl~I 18);~.\5. '/}s
such, the Respondent State
/
::;~::~ to adsrss the right to hQ_?;i~~ terms' of the combined effect of these
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,
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122. The Respon~]~h:$tate submitted Jhit>ih~ right of access to housing under
sec~iqn 26. of the::$?-~!~ Africa_n c_~pstitu~ion has been dealt with extensive!~ by
S?u\~__ AfrJ~~n c~urt~J:~!1,~1,J~,~~!it.v:te. T~e Responden: State alluded to ~an~us
p1eces_:,9fl~gi5,h:lhon tnat-nay;e:10een enacted under section 26 of the Constitution
to give;~ffec:t'_b6thJp the right to access to housing and the prohibition against
arbitrary\evktions.<J;)iese>include
the Extension
of Security of Tenure Act 62 of
. ,, .
. .,
I
1997, the J:rfvention _6fillegal Eviction F1om and Unlawful Occupation of Land
Act 19 of 1998_, t.h·e Housing Act 108 of1917, the Development Facilitation Act 67
of 1995, the ~ational Environment Act 07 of 1998, and the Municipal Finance
ManagementAct 56 of 2003.
123. The Respondent State submitted that tl\ie competing interests between South
African law and the Complaint curreritly before the Commissi0n.:...N-'require a
.,,;% 1-\lfoiA Atv,6~
balan~e ~etween t~e Sout~ African II gove:nm~nt'.s oI;JJJa~a:1,Aru,nae~0-:,the
Constitution to provide housmg and the basic prmc1plefrt e'(;o,Jnm<eJ1t
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First Submission on Merits on behalf of the Republic f South Africa, pa~
itin~SE~C aifu
Another v Nigeria (2001) AHRLR 60 (ACHPR 2001)).
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must uphold the rule of law that prevemts the illegal occupation of law. Added
to that, the Respondent argued, is the Jbligation of the Municipality to ensure
that expenditure is incurred in accbrdance with the Municipal Finance
Management Act, which ensures the fisdal responsibility of municipalities.
124. The Respondent State submitted that as part of its responsibility to make
adequate and safe housing available t9 the applicant, the Municipality has to
conduct a number of studies on the pr~perty under consideration, including a
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purchase the property or any other pro!1)erty"for't¥~.t"matt~f without complying
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::id::dne:::::k
Management Act, which could, .,'hav~ --. ser10us_. \,legal ~gµ,s,,equences for the
government officials involve~}ti!tdingjc}Citna] proseculi6h_:~?l
1
126. The Respondent State submittea' 'tf:iatSGmth Afri~an law aimJY~t implementing
section 26 of the Conqtftution in ~<,~~ic:1nced \naflp.er, the property rights of
landowners, the rightlbf:.<?,c:;cupiers,,,:~,p~iJi{tt~ally of"~iilrnfrable groups, as well as
the rights and obJigat~ons'\jt( OV~~prheh( Wit~,regar.~-to housing.27
127. The RespondentS~a;~ ~-~bmi~eat';h,,at in imp~:ht/;):::i~ting its obligation to provide
.
.
housing, the ,Complainants were<~~,~eld onto the Property as an emergency
measure folkrw:Jng a flood in the<~fecli;;:where they were living. However,
following an appgcation for evictioµ gfi:the Complainants from the Property by
th~•Jawful owner~>tl1e IDM Trust/the Municipality has been and is still in the
prdc.eitof.providiitg ._~ppr~pEiate hc:msinf for the Complainants. 28
'
'
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128. The _}i;;~~~~fitt~tate': s~b~~ed that j_the Municipality ha~ provided basic
services' :to th,e·· Co:rnplcJ.111,ants m response to the High Courts Judgment. The
Governm¢h(argued.jhdt it has been dJtermined that the Municipality cannot
purchase tn~, Property as it is not sui{able for habitation. The Government,
however, cla1hJ.~g that it has identified cilternative land for development and is
in the proces{}i finalising the last legis~ative requirements before construction
of houses can commence. The Respondent State added that the Complainants
I
Hurnan Rights our
Collective Responsibility
will be among the persons to benefit from. the housing once it has been
constructed. 29
I
1
129. The Respondent State submitted that while the administrative process to be
followed in the delivery of housing m.af seem. overly cum.bersom.e and time
consuming, the Municipality has no choice in the matter. It is a process that is
"required to ensure that all competing Jinterests (that of home seekers, the
Municipality and other citizens of South Africa) are accom.m.odated. The
Government also argued that in accordknce with the doctrine of margin of
appreciation, South Africa is best placed to determine l).qw to accom.m.odate all
competing interest, and that the process lcurre,r\~lY c:"ont~i•ned in South African
legislation has been approved by South Afric~ri:E?R~ts. \•:)
.
1
. ~.·.·.,. riJi~~l(_~ii.;tf(h'1~J?!!ow~d due
130. The Respondent State al~o subm.itte·d•.·}·:,•~.:.•.1Jy;~1/J';·~
process under South African law a9:9tm term~;qf ass1~~11~g the~O:)~plamants.
And that the Complainants hav:e,:'.acit~}i. in bad.Jaith or., ~b~sed due process
considering that at the time they·'1pproac"'~~ th,~~tom.m.ission,':the,Municipality
was already im.pl~i:nented {i6n~o~!lg.
homelessness
·,.··'.
•
/ >:
Jl~ti,9-g~:,,,
to.... · address)ttfi~ir plight of
v;:s:i,.
., -: \ >
!a.z{irtti .
131. The Respondent State· ~ubm.itted
~h~t'·tpt=t
case of.};,$q,(ial
Economic Rights and
,,
,
.,
,
,f, /,-,,
,.....,
Action Centre v 1:fi§;[!{. (SE~:~S~:~ef on tp~;;~iqht .t9;ihousi_n~ un~er the African
Charter does 110:t>apply:,to th1s.;ca.~e because the.facts are d1stmgmshable on two
grounds: firs~w~ no eviction ord~r'~c:1s befn m.9-de and, secondly, South African
la':
.providefi,~
· ·..·a·p.·.·.propriate protec.·ti?~
r?r the Com.plaints against forced
30
eviction
,,:.,•··
', . . ·<'-· ,·
1
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132. For.these reasorfs:/the Respondent/State submitted that it has not violated the
right ,t6•hqusing oft~~::C:o!llplaj~~j{ts und~r the combined provisions of Articles
12, 16 and,iS,of ...the Afri'tail-:€h'.after.
•
'
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•. '
(ii) Respect for,humqn'/J.i~!:hJ(Article 5)
~
',,,,,
.:'.
,
,
'.
133. The Resp~~c;lent Stat~ submitted that th alleged violation of Article 5 of the
African Chai:t~r
Jacks merit as the Complainants
have m.ade no specific
factual
.. ,, ... ,'
I
.
allegations a?oiit the right to respect ~or hum.an dignity. The Government
argues that it would be unfair to expect the Respondent State to make
submissions on this alleged violation! because "the Respondent has no
indication from. the Applicants' subm.issidns regarding the alleged actio~s of the
Respondent that allegedly gave rise to thI.I violation." 31
,~~~~~
1
§:c.
~o <c-cRETARt47 o~..
' c.o"" ':,
"-'~.:,_
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First Submission on Merits on behalf of the Republic f South Africa, para 5,3l
30
SERAC case (n 25 above).
I
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31 First Submission on Merits on behalf of the Republic f South Africa, para 5}3.t. %,
29
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Human Rights our
Collective Responsibility
Human and Peoples' Ri~hts
134. As such, the Respondent State submi ted that no violation of this .right has
occurred.
(iii) Right to education (Article 17)
135. The Respondent State submitted that t e alleged violation of Article 17 of the
African Charter is not in contention as the Complainants have not contended a
violation of the right to education. The <Government referred the Commission to
paragraph 2 of the Report where it is sthted that the new housing development
I
,__./··~will encompass educational use. 32
I
t➔
136. The Respondent State contends
this,:: c~m;;:01)is a ploy by the
Complamants to abuse proc~s~ a~d ga1, s.?~e prtfe~~nha,l:'treatment over other
hous_e seekers who may _be hvmg m c01lf?-~~~t';.~1rc~_Illstc:~tes,Qt__who may also
reqmre emergency housmg from the MJm1c1pahty.
•.
• . ;_ ••. •:.
137. On the basis, the Government S)l]>~~\~)~at ~~f1ompU:Jh1ha~ 1,1':. :nstituted
in bad faith and that there has·'i1ot bee] 'a\;v,iolatfon of Article':1'7,, of the African
1
(iv)
P~:::::
of the family unii /~~:: ::~,~~: au~':;~~~s,q~d rigL (Article 19), and
\f
economic, social and cu. .l--~~-'.'.:\{-~--evel?~f_./n JJrticL\e<i~t, ·_·. _ __·2;): "•i
..t
,.--•··
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;
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138. The Respond7;~t-'State· gu~mitt~~<that tje ~O-Il}J?hinants ~ave made no ~pecif~c
factual allega,t1pn about v10lat10~ :9f tlie nght to protect10n of the farmly umt
under Article['.~~' the right to equalhy':of gersons and rights under Article 19 of
1
the Africa~ CH~~:te_,r__, a.nd th~ right to_·.·. e·s?l:ri.omic, social and cultural deve_lopment
u11-ger Article 22 ~>(the African Charter. The Government argued that 1t would
be'-·~nfair to exp~tt:ih,~..Responderit:'State to make submissions on these alleged
viofat~f~(·a~.. the ~e~_p:q!cgfri,f'.::has np . indication from the Complainants
subrmss10rts- :-regc!-!dmg tfie alleged act10ns of the Respondent State that
allegedly. gave. :rise_.tc:>t~i§_Violation.
l
139. The Resp~~~ent Sta~e:,~rged the Commi sion not to entertain these allegations.
(v) General satisf~~;dry.<environment favourable tl their development (Article 24) •
; ·-
I
140. The Respondent State submitted that thJ Complainants made no sp~~-tual
allegations about the Respondent State'ls violation of Article ~:{~1fmcan
<;,°'
'i:,CRETAJi> -'1,t., ~
Charter.
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141. In response to the Complainants' contenlons that the MuniJ::i 's ~a!ed"\\
~I~ n
. \,:--.!.,;,.;r .
w :u t
Development Plan does not truthfull)1" represent the Mumdp hty 'S"·"actio
ci n
.
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32 First Submission on Merits on behalf of the Republic of South Africa, para 5.42. ~- .-S-011, ,i,.-R,cA1N"- -0X::R'--'<-"' ,{;'
- ~ ;
Page 27 of 51
H
African Commission on
Human and Peoples' Ri~1hts
Human Rights our
Collective Responsibility
because it does not adequately ensure tlhat the Complainants have access to
housing,33 the Respondent State submitt~d that the question of truthfulness of
the Municipality's actions or whether/ the Municipality's Integrated
Development Plan provides for housing lhas1 not been put to or considered by
South African courts. And that althoufh the Plan has been submitted for
consideration by the courts, based on the frirtciple of judicial difference, it is not
for the courts to prescribe to the Municit1ality what project it should undertake
or who it should prioritise; provided i is satisfied that the Plan meets the
requirements of South African law.
,.,<{~:t~!:!I?:1:'t ;",_
142. The Respondent State further submitted , at inJight oPr:wr?;tMunicipality' s plans
to accommodate the Complainants in the d~}t~!PJ?!llent drwma Liza Ext 5, the
~
1
0
question of w_het~er the ~unicipality.' fpteg~a·f.~.·. : ;~,e;.e·~..•?·'.'.··~.;.~·.;.~~-~:" Pl·a. n·... ··.provides
access to housing 1s moot.
·"i'{_,_ •.
, '<!:::iI:t> ,,-'t:1;f~[i:J)i~?ilf;<;:;>
1
1
143. The Respondent rejected the .avcer:m~rt by\i\he C&'~]pJainants··/that the
8
~ ~~1::1t:rt~~eo~~~;:~~~:
0
~i::~~:at?p:;:m:~t ~.!
... d·m_·::~~;_.~_ _1_~.n•.. c.i.-·_:,11··.·.~.~.-:.i~.
.
under the South African J:Iousing ~2~"'e o ptoy;i,4.e for emergency housing and
in situ development. 35,::,J?e Gover~g~. argues.;)hat !he issue before South
---£·
1:;:~:~
;'.~~;f
;;:u:1·:·v.·
~{1~~t1.:.$i.1!~i~.f·n·:~,.:;~r.i::.:~n::h~:.!~uth
1:;.:.,,:''
..
·<;:J,;;,\\,.
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144. The Respond~ht State submiti~i:<ft that on.,)the basis of the principle of
~ubsidiarity, i(\i~ not for the Co~\~r~~of.to determine whether South African
Judges have ID,I~{nterpreted South Afr1~~J;:tifaw.
145. Th!", F,esponde~i}~!,\\e also subrrqite/Htt to the extent that Article 24 of the
~fii~~~;:~\'},~:ter is t~t?~~f:lt}~ .t!Je'f1gh_t to l~ater and san~tation, _the M~nicipality
·
~
;.·l;·,·\~.' . ••·.· e_. . ·d.·.· ·e· · cproperty
·.·1.s1. on,: of:ithe
provide
ser_v1cesservices
to. the
did n~,t.··•a.
Compl~_~pant~}i$,:t;r~J:!1~
andHigh
that, l~ourt
m fact,towater
andbasic.
samtation
36
have bee:i;1J7,r;0vide'clff§::;th<:! applicants.
p····.'·p.···.,.:.·.:·;··.·?.·,.:
.
·t::!.,:.:1-:·~.;,,,
<'.;: ct-'"
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146. As such,
Respor{tI~nt State submitte
Article 24 of''the,/4\frican Charter.
that there has been no violation of
I
~..
.
.
..
... !
-~~33 Complamants'
Wntten Subm1ss10n on the Adm1ss1b1hty of the Complamt ~;d'22<:FelWJa:ny"4Dai~~'-. _
I
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para 5.3.
34
First Su~mission o~ Merits o~ b~half of the Rep~b~ic- 1f South Africa, p~rff¾~0.3.
:~,
35 Complamants' Wntten Subm1Ss10n on the Adm1ss1b1lfty of the Complam~!1ftt 22 ~i,~~ 21-w, ~ \;
paras 5.5-5.6.
I
11 &. ~
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36 Citing the African Commission's Principles and Guid lines on the Implent~-;,ta~ ,Q_~jftt J//
Social and Cultural Rights.
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Page 28 of 51
ACHPR
"
African Commission on
Human and Peoples' Righ_ts
Human Rights our
Collective Responsibility
(vi) Response to the decision on admissibility
I
147. By Note Verbale LEG/ ACHPR/COMM/377/09.23022015 (30107) dated 23
February 2013, the Respondent State i I diqated to the Commission that the
Government intends to reopen the issue of a'dm.issibility in its written and oral
pleadings on the merits of the Com.plaint 37 •
148. While acknowledging that the Co
ission's Rules of Procedure of the
Commission does not allow a reopening of admissibility proceedings, the
Respondent State submitted that local rJm.edies hPoX:~,npt been exhausted. The
Government argued that the Com.m.issio1 did nof h~v~-q~l':~he facts of the case at
its disposal when the d:cision on adm.iss'bil\~X~fcts m.ade.:in terms of_ the_ ~eliefs
sought by the Com.plamants before South Afncai;l. cour,ts, the ava1lab1hty of
sufficient remedies, and the im.prac:ti~~BJntx 6£.:)pµsri!;llhg-.,.Jge remaining
remedies 38
,:.°VJ ·ct,z,\ '.; '- ·- < •.. ,• -,,.
1
149, In terms ~f the relief sought b,:t~~F)jlina;t bef~r:\10,litl;t_~rican courts,
the Respondent State argue,~ tli:~! the f·1E(~~f8of relief fro11,1i eviction of the
Co1:1-plainants has not yet been dec~'d~.? fY aJ.i~f~~! the superior co~rt~ of So~th
Afnca. The Respondery~<State argued ,tH~t whil~2~,>yart of the eviction claim.,
which has_ to do the ._put~h~s~ of t~~;Pr~,E;{~Y f?rtt~~;:,sum. ~f ~250 000.00, has
been considered ,~Y:'~~e co~r.~~~ !!'te}subst!an~H:,e isstws on eviction are yet to be
decided by the_Jfigh Cb,urt. <: '· ,
l \ .:. , · :.:'
150. The Respond~;t State also ar;i!,ft~~t , o ni.a~er concernin~ the violation of
hum.an nghts;y~s contamed m the •~9:U }i Afncan Conshtut10n was brought
>
before the courts\
I
151.
/
l
~:~~1.:~;:i~~~~,;11~~::1::;sr::t:;s:: s:rn;~:!::~t~
success\fa iow.-~otth~t further appeals ~r~ !difficult or costly. To the Governme~t,
the test\~~<;?~ld be.,~hetr-er the m.umci~al system. of the Respondent State 1s
reasonably.capable of providing effective relief. As such, the Respondent State
submitted ·t~~t. effective relief is availal::lle to the Complainants in the courts
system. of the-Respondent State.
1
1
152. The Respondent State submitted that effective reliefs are available in the
Respondent State and that the Complain nts have an option of br!IJging claims
against the IDM Trust to dismiss the eviciion application or b ~ ~ a i n s t
the Municipality for hum.an rights violations. The Gover~e-t\tcf'crtffi~f ar~d
that even if the Complainants do not i1tend to institute·'·p'1'oce clipg__ in colli')~,1
.J0
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,f South Africa, para·•&J.\_'
p..lJ-IJP..
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38 First Submission on Merits on behalf of the Republic , f South Africa, paras (t-5-8'.'51~.
~<::>,Z, y (/
37 First Submission on Merits on behalf of the Republic
.,
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ACHPR
African Commission on
Human and Peoples' Rights
Human Rights our
Collective Responsibility
their rights remain protected under the Prevention of Illegal Eviction From and
Unlawful Occupation of Land Act whio balances the rights of illegal occupiers
with that of the land owner. The Re pondent State submitted that it is not
1
guaranteed that the IDM Trust's applfcation for eviction will succeed in the
event that the matter proceeded in the High Court.
153. In terms of the impracticability of Jursuing the remaining remedies, the
Respondent State submitted that the <Commission's finding that it would be
impracticable for the Complainants tb pursue their remedies in the South
African court is unclear. Relying dn the principh~, of subsidiarity, the
Respondent State argues that South Aftican couits are<Jie~t placed to interpret
South African law and that South Africkn ju_gg~S :qre bes\placed to understand
1
the plight of vulnerable South Africans. c,Wng a n~in1>er qfj:ases decided by the
c?urts, t~e- Respondent State argu~d t~~tSS~U!~;~frit~fl-s~,()t1{t~zhc1v~,,c_~-~e to the
aid of victims of alleged human nght§(abuses q~~ed on_Jll~ outc0m~: of several
decided cas~s. 3~ And that the Co,~pl~iq~f~ts ha~11) a~varic~~,1:1? ~ubm1ssions as
to what pre1udice they stand t9s?-ffer ii\_:~pu~b;;:Afncan com:,ts,:J£- they ran the
ordinary course of the eviction pr,p'ce,edihgs'.:,15~~9re the High C.q:tirt.
.'
·,•,\>,,,J
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.,
154. The Respondent State ,s:ubmitted thal:}@~al rerried:i~s have not been exhausted
and the Complaina~~s'-h{~~>~dvan~~ejit":10-:;~_e~sons i~);ft would not be possible
to pursue any of}~~;'~~;medi~,s::~e1!}0nstratecliiby,_the ~espondent State.
155
•
~n~eb~:tfi::1~::;ff1~:i:i:~10;1::~1:::~n~f~;:~:~~
the African Ckarter.
·-·., '. ,.
\;~}\.,
f\ . ·
The Commission's analysis on the Merits
\(:~r~ .·:· , ·...
.-: ,:.; : : :r.: ·-~.~.
4;:{;~r:
,;r, :: •
(tliizJ/~[~,: th~:(ili"igyc~ijdni's wntl en submissions
Responde;,\
. .
156. Before ~~d~~~smg;t~r parties' . subrmsi10ns, the Commiss10n no:es that the
Responde~t;:vState h~~,:,,?taken ISsue w~th the way the complamants have
presented \t'1,eir argu'ments on the rriierits before the Commission. 40 The
Respondenf•~tat~ argued that the Complainants' submissions are vague 'as it is
not clear wh~fthe allegations against t~e Respondent State are that need to be
answered', artcl that the vagueness of t};le Complainants' submissions violates
the Respondent State's right to a fair heel.ring and due process. The Respondent
State argued that such uncertainty pla~es South Africa at a disad;v:antage in
these proceedings because it is forced t, submit pleadings ,h,~\f~J¼•d •
f,/ o· ~ ..----..
~;
wi e m scope.
~o~ 1.v0~
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First Submission on Merits on behalf of the Republic of South Africa, para 6.i~
4°First Submission on Merits on behalf of the Republic bf South Africa, paras sJ_~4.o
0
0
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African Commission on
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Human Rights our
Collective Responsibility
157. These observations on the form of pr sentation of submissions strike at the
procedure of the Commission, which it guided by its Rules of Procedure and,
therefore, worth addressing.
1
158. Generally, the Commission receives ancl.
deals with communications pursuant
to its protective mandate under the Afrfcan, Charter. Article 45(2) of the African
Charter stipulates the responsibility \at the Commission to '[e]nsure the
protection of human and peoples' rigllt.lts under conditions laid down by the
pr_esent Charte:.' One o~ ~he conditions lai~ ~own£?~ the Co~ission to fulfil
1ss10n }(lj\:a.~:y:elop its own rules of
this mandate 1s the ab1hty of the Co
procedure, including with respect to the agjµ2llcaHB,~;, .. of communications
submitted to it.41
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159. In this case, the operative rules of pros. _dtir.~/u.vder, 1~~ich];t~f~:f,2-Funication
was filed were the 2010 Rules of Procedure of',the Commission:i;Zfne!20'10 Rules
of Procedure stipulate the spec.~fic·<f~9rmaticip\ that ·,;'ti{~,?t be ~~i{f~ined in
co~unications file~ ~efore !her~:~omft~s~_?n.,l9r ~~ch co~g:rjcatfons to be
seized by the Comm1ss10n. 'F:rus~p1cJudes t1);e>,prov1s1on of Ry.Je 93(2)( d) of the
~~:n~:::~c:~~~ee~s~~~;~~~;~~t;~;!i{:t11::s:~t :~et~=c~~~~~:!;
contain, among other5ti,i~Bg_s, "an)l9~~,4~t~,.~j the ··~ct','q/ situation complained of,
specifying the plac,e,date_ and'n,?iJy:r~,dfthe allege~\ptolaf:iqns .
. ·, , ,. ·\
'<:U·;:/
:,~{;;:;fl
160. From the allegations filed by ·lije:\Complain~hts before the Commission, the
Commis_si_on fir~ds that, by themsel~~~\~~: clai~s against the Respondent State
are su££1c1ently ;clear and meet the 'QctS!~' reqmrements of Rule 93(2) for the
following reas'~~s\ Firstly, there i~.i a2iihown author of the complaint whose
narn.~1 _nationality<:anc:i signature 9f_e ide~tified in the complaint. Secondly, the
acc6~:nf9f!~e act orB~titation,_coqiplainetl of, including the nature of the alleged
I
~:~,~~f})t&;~;]~~;o;~r~v:;;I
~:i:~~~ ;~~l:~~~o~o:::~ ~:
violatiori\a.rfc'~nsidef~g.-~to have occurr~d are contained in the complaint. It is
based on tl\ese reasorj:s,, of sufficient clarity that the Commission became seized
88
161.
:~~::s:r
1
:::e:r::::::, : : the assertation of vagueness by the
Respondent State is with respect to the jomplainants' submissions, and not the
complaint its_elf. A_ careful perusal ?£ tmle Afri~~n Charter a1:d t~\q~4Jl
show that neither instrument prescribes a specific form of wnt1;4'S~l'fiiJ.S"S10fi~>
~n the pr~ce~ding_s of the Commi~sion. Hpwever, the Corr_rmiss/~ ages-~~t <".i~ _
its Rules in ISolahon. A community reading of the rules, inclu;?1ng ulr:~f(2) 0 ~ %\
the Rules of Procedure, suggests that I complainant's subrtj.&sio s a.gailst A~
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41
African Charter arts 42(2) & 46.
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Page 31 of 51
"-~OMME £.'i O ...
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African Commission on
Human and Peoples' Rights
Human Rights our
Collective Responsibility
State Party should be just as clear and coherent as the complaint itself and
should have sufficient detail as to inform he State concerned of the specific acts
or omissions that have occasioned a violation of the African Charter.
162. Yet, unlike the established practice b£ submitting a dedicated written
submission on the merits advancing arg/ul ments in support of the allegations
that specific Articles of the African Charter have been violated, the
Complainants in this Communication , ecided not to submit their written
arguments on the merits when called upoh by the Commission to do so. Rather,
in their email to the Commission on 28 ranuary 2e9X(?;Ahey elected to rely on
their "written submissions on the AdmiEsibil;tyiof Coµ,.munication 377/09 Me~duk~zi Patricia_ ~onakali." 42 In pa:t~~u_l,~r,,'.t,~~1 reli~~}on p~rts_ 5 and 7 of
their Written Submiss10ns on the Admissi,pi,l~ty ofJh~ Cq~umcatlon dated 8
March 2013. This information was rel~¥,fi!fo;:~l}f Resp};)i.{deii_5tate:~n the basis
of which the Respon~ent State fil~~,J~¢:; rrst W;~iten 's~~'i;:sfon o:t\,&ferits.
163. As a party before the Commi~~i,pn, th ,fwnpl~}hants are":~nt~tled to conduct
their case as best possible ,a's;!(:f~e;y ch9c:YitJ;}o long as th~fl is substantial
compliance with the Conunission'siRHJes of'r~5:1Sedure. In doing so, they take
full responsibility forAt~e .s~engths,~f}~r.k welR_p§~Se~1:;c of how th~ir case is
presented before the ~corµm1ss10n. J3-<tsed,:fi11,;,Rule 9 , ,ad together with the rest
of the 20!0 ~ul:;~'(t~f;:~~;?~ecl~r~!)t¢~i-i be ~~!~:,t~a\tliie_ Complaint by whic_h this
commumcatio,11,;;was mitlated'co1,1tams specific\cl!legahons by the Complainants
that the Res~gfdent State violatedi~he pr9visfoins of ~rticles 5, 17, 18, _19, 22 ~d
24 of the Afntc1,n Charter. The natur1:ro{ tH~se allegat10ns has been articulated m
the Complairi~~ts' written submissicfrjs\::/n admissibility and the reply to the
Re~pondent Stcft~;~\submissions. ,l]i ,3< ,
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164. At th~:J~~ the ComfiJi:t~Q~:~::1J~p;qpted to ely on their admissibility arguments,
the Se~:reta:rj,at,d!d not r~jettit:I?fhis implies that the reliance on those arguments
by t~e' ~pmpJ~in)int.~~-,?Y itself, was cons~dered acceptable to the Commission.
Similarly~\the· Respousfe,nt State had ample knowledge of the nature of the
Complaint/~nd the rpi:i'in arguments of ~he Complainants. Having been duly
served with"'a11 the written submissions bn which the Complainants chose to
place relianc~\irid having specifically reJponded to each of the Complainants'
substantive ai:'guments in its own writter submissions, the RiJes11,00-:-~t~
cannot be heard to argue that "it is not deat what the allegaft·-~~i\:s.?i: thg'°<~~,)
~ Ive, -------u>. ,,.
Respondent are that need to be answere d .43
ff "' __..... , 't t'i,
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42 See Complainants Attorney's reply to the Commissio~' s email titled "Re: Letter-~~&: , unicatiOt_k,<:>0
' ' ~7'1'{1'
i'
9.71.;j,
(<,'5
377 of the Complainant" dated 28 January 2016 para 3. Also see Complainants attof~tey. s-r,epw~(!):;~ ~""-x ; ,. •
the Commission's email dated 16 May 2016 para 3.
~..;,,
43 First Submission on Merits on behalf of the Republic o South Africa, para 5.2.
...........,_ _
Page 32 of 51
ACHPR
African Commission on
Human and Peoples' Rights
Human Rights our
Collective Responsibility
165. This is more so because the substance of the Complainants' written submissions
on the merits in this Communication ar~ ba13ed on the lack of access to adequate
housing and basic services, the poor liting: conditions they have currently and
the impending threat of homelessness that the Complainants face. These have
been duly forwarded to the Responden~ State; and these have been received and
robustly and appropriately responded tb by the Respondent.
166. The Commission finds that the complaljnt itself and the documentary evidence
by which it is supported as well as the written submissions of the
Complainants, when taken together, gfve suffiden.t clai:ity to the Respondent
State of the nature of the allegations levelled agaiµst ft. ¼7:hi,le the Complainants'
processes may be untidy for conductin~ on~fs\~as.e, it do~ey not contravene the
Commis_sion' s 2010 Rules of procedure.
anf:expr:~~}t~tipulated for~ in
the African Charter and the Compfssrorp~:::,, Rules.',<0£.. )~ro~ed.uTe, written
submiss_ions of the ~pa:tie~ _are n~:fl*tended:10\? be\s?'•,,tecl~1:i~al . ~Qr' ?:erly
mechanical as to make It difficul,tfor,t~~t'?nlett~~rd or Ufl~OR!'rlsticated litigant
or his or her legal represent9'tiy_es to at#!2:U.19't~1 allegations.;0£·,human rights
-' >·< ··'\,
;\::~:.:·
J: ·
violations.
.
', ~:.' ·,\
-_;~~itti~:'. >~
167. While written submissig;ns in proce~di gs befor,~iJhe Commission should be
presented logically and with suffic;ient '.4:~tail to ,~~~pf~ the other party fully
co~prehend ~~~-- a:cl?~uate_!~ :t~~pb~d 6·:,,ir~"~1-1~gation~, ~he re~u_irement of
written submi,ss10ns is,not intep4_ed to •locl< ·tpe.vast maJority of litigants who
,
""· .,·.,,
I
,,_.
may not be lettered in the processef and procedure of the Commission or be
sue~ as to ma,l<~ it _so f~rmally pre's6~.i~~1.. ~-s to prevent litigants fro~ being able
to simply bear"their mmds on the sub~tqnce of the case as best possible as they
can. The Resp~nµent State has_::. prdperly challenged the Complainants'
su~~~~~.~ns. _H~~~Jerr the Co~~ssion\finds that there is n~ uncertainty _in the
~a:~~~=~~~:it~:ons th,a! pl~ce~•, the ResI. ondent State at a disadvantage m the
~8r,r,1;\:
1
168. Consi;~\t)?j;}:/ii\f§p~,Gific allegations I f violations in this Communication are
in respecf}9f Article$i'5, 17, 18, 19, 22 and 24 of the African Charter, the
Complainah}s' r.eliance on their submissipns on admissibility as the~r arguments
on the merit~>p,oes not reasonably create a degree of uncertainty for the
Respondent sfuch that violates the Respdndent' s right to a fair hea1Jng~andg_ue
• h\-1. \'IUMAN Atv~'>process.
//40
£•ARt o.,,""-,~I °'0~o e;,<vc'P- • A,- <':o-o
169. As such, the Commission finds that the nature of the alleg~~'bns/ l_-~~n bly<t_
certain and that the Respondent State's observation - thati~e o~-1~'1a ~ ~~\
submissions are unclear - cannot stand.
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Page 33 of 51
ACHPR
"
African Commission on
Human and Peoples' Rights
Human Rights our
Collective Responsibility
Revisitation of the Commission's admissibility de ision
170. The Respondent State has sought to rJopen the issue of admissibility of this
Complaint, despite it having been decicled upon by the Commission. 44 While
conceding that reopening of the admissibility decision is not proper at this stage
of the proceedings, the Respondent StatJ' s arguments in support of this attempt
to revisit the Commission's admissibilit~ decision are based on points already
canvassed at the admissibility stage) namely: the relief sought by the
Complainants in the domestic courts cif the Respondent State, the domestic
remedies avai~able t~ the Complainants,land the ~:~~i'.9H~{emedial options open
to the Complainants m the Respondent State. ,,l:/
·,., . j;:1\
171. Worthy of note is tha: the 2010 Rules of bi:~~~1!J£fers)rne ~idance on the
cond1hon(s) for granting a review. In ~~,9cu~~7,.ful~,~,~1:(f}~E~~fl~;8,,,_~h~t:
If the Commission has declared a Cpin~71r:ic~ti;:,i;,ihad;,i~~!JJ1t;.Jhi;·,d~~~§i~~ may be
reviewed at a later d~te~ upon·.·t·h·.,f~·;·f·tt.•. b.m.issr·?~)f. nerb./evidence;·~2~,~P.·.f.,fg;d in a written
request to the Commzsswn by t~e,:;qi?J!hor. \. /: .,.
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~;~\(;~!t\~
'l'._'~;.~:;-_.
,,t'.Y172, This means that under t~t 2010 Rule·s:\:p(I rocedu~e~of the Commission, a review
of the Commission's µ¢d:si.on on adn;iJ$~ilbility can . pccur>where three conditions
are present: Firstly,. t]:le 'c&,mi;russi~ffe•:':fiu.i:~t'.ltliave fo~nd that a communication is
inadmissible"; .Se~o~q, the;'~];'i~te'h reqJe;t{(f~'{>qf;(r~fiew must be accompanied
by a submiss.ion of n~w ~vici~h,E,~,;;,; andl thi~d;,~Jfi; request must come from the
author of the <::ommurucation, not::tJie.Re~pondent State.
l•
II
II
~
173. ;'ssurning th~\Re~p~ndent able tR\~t'such a request- and the Resp~ndent
1s .;n.ot able to do,so ..__in this instance;.- rt 1s clear from the Rules that a review of
thJ{S(B~ssio~ ~<4_e~is}?~. on .~~v{i~s~b~lity is preconditioned on f~lfillin? ~he
othe:r:,1\_,·\:fwO:'CC1;i;td1t10ns;·that;1s,Jlj.e·'8.ec1s10h
must have been declared znadmzsszble
··"'-<:,, ,;:·.,·.: ·/·,-~
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I
by the~1,corrm:g~~i-9n, and the Responjent State must have produced new
i.,.-,,__
ev1'dence...
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174. The ResplJ~:nt s~:ri:;mitted that th~ Commission did not have all the facts
at its disposaJ, w,hen the decision on adipissibility was made. Yet, the facts on
which the Re;?~b'h~e~t State relies in its srb~ssions hav~ already been ~rought
before the C~inrruss10n and taken due cogrusance of. W1th~ut pres~nt~pw~~and compelling facts, the Government has merely re1terat~~~"t~~~1~~arguments on the requirement of exhkustion of local remedi{st~Wh:ich~
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as adopted in Kigali, Rwanda, durilig_''~ai:~, 1?,;~~x✓~o/,•':
Extra-Ordrnary Sess10n of the Comnuss1on held from 20 to 29 July 2014.
i;. • '· rnd~\111/ •
44 The Ad~sibility d~cision on this C~m~unication
-----~.--·---
Page 34 of 51
~~,ACHPR
~
x>·:
African Commission on
Human and Peoples' Rights
Human Rights our
Collective Responsibility
already contained in its First, Seconcl and Third Written Submissions on
admissibility and duly noted by the Cotssion.45
175. After revisiting its decision on adfissibility, it is the position of the
Commission that, unless (a) it is a, l:equest to revise its decision on the
inadmissibility of a Communication and (9) a new and decisive fact is adduced by
the author of the Commission in support thereof, a review is unwarranted. As
such, the decision of the Commission ~n the admissibility of the Commission
stands.
,,./
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··_.
176. Regarding the substantive issues before the, Con:trrlissior>the Respondent State
submitted that, in considering the atgu~~_11ts,, in suppbrt of its case, the
Commission must consider the principies qf margin of appfeciation, subsidiarity,
the progressive realisation of rights, and)f-i?~p~t((9,ndlity\t1l1:~~ation_!o. the rights
alleged by the Complainants to haveJ,·~~n viola(ftj. in thi~··c;ase>The,._9bqunission
Alleg:::~at::nt:f:::c:::e principlet>lli½;[~~:;:..e o'f~ts anal~is~--l~w. •
,, •,he ,;~,~~tt,dent
State of Article 5 of the
177. The Complainants allege,ta
violati~i::i;y··
~ ,.,,.
'
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African Charter wit11,re.~pect to theif::ti h"t,~o live'1pi}g,ignity. Article 5 provides
thus:
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Every individf{ill shall Have the'#ghJ to th respeq(of the dignity inherent in a human
being and t'd__: the recognition of8!~, le al status. All forms of exploitation and
degradation Iijf. man particularly sM~e'nfi ~lave trade, torture, cruel, inhuman or
degrading putii$½ment and treatment shdll 'be prohibited.
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178. By\t~e:t~-~or of A~fi~f!:,-t·o·•·.·f t·.h·.·.e .~{;~fa~ C~arter~ the protection of the dignit! and
resp~c,t.1.~e:rent m ev:~E::Y,:!.1:,u,1.pJJt'bemg ~s affirmed. In the case of Purohzt and
AnotheJ\ v>The •Gambia, ffie'"Commission declared that 'human dignity is an
inherent· basic. ·right .to which all hurrlan beings ... are entitled to without
discrimirtation.' 46 In .M,ddise v. Botswaiza, the Commission also noted that
exposing ~i<;:tims to <'-·personal sufferin~ and indignity' violates the right to
human dign~\y llpder Article 5 of the Afr·1can Charter.47
45
See First Submission on Admissibility on behalf of ~e Republic of South Africa (dated November
2012); Second Submission on Admissibility on behalf of the republic of South Africa (dated 31
January 2?13); First Subm~ssion Third Submission or Admissibility on behalf of the RepubliS_?f
South Afnca (dated 13 Apnl 2013) paras 7.2.2-7.4.
.~~oN·;-;0.,,;,. ·,
46 (2003) AHRLR 96 (ACHPR 2003) para 57.
<:~~,o~<2-CRET 4 ~::''-1;,' ..
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47 Comm. No. 97/93- John K. Madise v. Botswana (1997)
frican Commission on Human ~1t,d·P:uo'
-1;Rights para 32.
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African Commission on
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179. The right to live in dignity under Artifle 5 of the African Charter has direct
implications on other rights, including the right to work, food, housing, health,
water and sanitation; and creates corresponding obligations for the state. In the
Principles and Guidelines on the Impleme'rntation of Economic, Social and Cultural
Rights in the African Charter on Humdn and People's Rights (Principles and
Guidelines on ESR), the Commission fecognizes that the right to adequate
housing includes the right to live in di~nity and entails the obligation of State
Parties under the African Charter to ensure that vulnerable and disadvantaged
groups such as those at risk of homeleI sness have access to acceptable living
conditions in a healthy environment.48
•. ··• •
1
180. The Commission also affirmed that the ightJc(W~ter a~~1anitation is implied
in a num~er of rights un~er the Africa~"~hir.t~i<ttid~di~)-I(.~he _rig~t to dignity
under Article 5 of the African Charter.JI;;the;:;J?;t1µc1p~es.~nd 9t.11delmes on ESR,
the Commission noted that:
A::?:'·
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While the African Charter does
~!wrotec[1{he righ; lr '(bater (lnd sanitation,
i~ is implie_d in ~he protectionscrc/f'q;~1~!!1bet d'.fi~f~~~f, inc~uding b~t,.ncit, limited to the
rights to life, dzgnzty, work, food, hegU~, [conont~f,. soczal and cultural development
and to a satisfactory en-qii/onment. 49 ·-1/\: .
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181. This means that the
e_~J\j[/~~~tails';JJ_t~gation _on the_ part ~f a
State Partr to e.· nsure t~~t md:~,y~'l,... ua>ls ard grp·•·.;~~~}res1de~t on It~ ternto_ry ~Ive
under residential conditions tfiaJ,,~a,re rersonaJ~Jy conducive to life, habitation,
and health. 'rd, guarantee the rigfifjtC?, live in/ dignity, State Parties under the
Afric~~ Chart~\ ~ave. an obli~atio~t::;JP' regulate and monitor the living
conditions of \·.!eey!denbal dwellin,gsi~'tcD ensure that they do not become
?at:,g~!?us to life~,:~~~~n healt~/and tellbeing of residents: T~is ob~igati?n
mclu,;d,es,J]le responsibility, toprevent and address overcrowding m residential
areas\Uiaf fnax. prov~ dangerbus to dignified life and social interactions, the
provisiop.
of'tJe.~ri,,,:p.:ublic
toilets or public
latrines, the collection, disposal and
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tre~tmen~t9{·t·h··\1:rriani:~~~;eta, and the reloval of wastewater, storm water and
sohd wasteiso
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182. In the pres~Atcc!.se, the Complainants ,laimed that prior to moving onto the
Portion 41, t~¢Y •lived in temporary shJck structures and neighbourhoods in
Plot 40. Plot 40 was overcrowded and f[equently flooded during the summer
raining seasons until they were requester by the Municipal Authority to move
Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the
African Charter on Human and People's Rights parasl 78.
.:~49 Principles and Guidelines on the Implementation of Economic, Social and Cultural Ri .. .,~'t-lit'euT~ARNi -'ltv~
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so Pr~ciples and Guidelines on the Impleme1_1tation of ~conomic, Social and Culturaq{~hts • , l::h~:::~
\
Afncan Charter on Human and People's Rights para 91.
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temporarily to Plot 41. They claimed hat the overcrowding and regular
flooding not only created dangerously u ygienic conditions for them, but also
gave rise to diseases and fatal accidentals including fire incidents and the
drowning of children. They further argJed that despite having moved on to
Portion 41, they have no access to basic s~rvices by the Municipal government.
They also argued that the Respondent's feglect, failure or refusal to urgently
address their housing crisis and living coiditions on the Property impinges on
their dignity as human beings.
183. The Respondent State does not dispute th se horrif~J;iJg:,c:,onditions in its written
submissions. In fact, the Respondent Sta e ackr:i,9~i~dg~~Un its arguments that
the Property on which the Complainan s ¼itt;W@~ide - "~jpeit unlawfully - is
"dangerous for human habitation." 51
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184
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~ ~is:::: !:e:~':'~~ ;::J:{s{~~tf=~~t~i!!ti:,:W.iJi!}J,l;~o-~=~
living. The Respondent argueq1f!(fat the''fyf'µpiciµality provicle•<:ii:1?.~sic services to
the applicants, but falls shotf1~~t~;Rrovid[iighiny proof or itjW.:fcation of what
:t~~~;ervices have b:r proviiw{\Jit ii~!t\~:ne so on a regular or once185. Living in tempor·l:l!·'Y. ::~.I:l~;:$t. r.:.u.'.c. tµ.r,~e::•~i;,ii[iJw_.··.·•.".i
challenges which
r',l,.; t.h t;)~endous
,
can make lifE:A:~xceptionally 1f~~f1cult. T e fag~:i>:f basic services such as, for
example, elec:fricity, transportcftjqn and .Jvasti: aisposal can make life a living
hell for the ,residents. As such,'\;g~;y;ernbents have a responsibility to take
necessary meas-yres using available 'te,~~ttces to the maximum extent possible
to ensure that squatters, vulnerabl~. gr:,,biil and homeless people have access to
ba~~c:i~~rvices bey~~d~.ommunal_,~ater priints s~ch as electricity a:1d s~nitation
pen_d:+fnb.gl/}Z~~n adeq\l~t~?• Jt<}~s;ng or ±lternative accommodation 1s made
ava11a · e: •••>.:'.:.,,.,..
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re~~:f :':!:~eoi~JI!~t! ;r:::!';;.
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The non-pr1fision of such other importar,t basic services to the Complainants
will be contr~:try;·,to the right of the Com[lainants to live in dignity under the
African Charf~r.
I
187. In seeking to refute an allegation of viola •on of the right to respect for human
dignity, it is not sufficient for the Resp9ndent State to simply argue that the
~omplainants make no specif~c f~ctual negations about th<~ v i o l a t ~ ,
1
nght to respect for human_ d1~mty. As I a party to th~ ~fnc~~trE:'~i~-1~,"'
Respondent State has an obhgallOn to deronstrate that 111s l~t'ff".ip'fir;~~1a!tt "',-~~
51 First Submission on Merits on behalf of the Republic o
ig
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South Africa para 4.20.3(
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measures to ensure access to the basic I ecessities required for a minimum level
of a life of dignity. This includes thi obligation to address the problem of
overcrowding and the various social problems associated with overcrowding.
188. The Respondent State also has an obligJtion to take appropriate measures using
all available resources to address the chkllenge of dangerous flooding in human
settlements as well as the non-provisiotl of basis services which have an impact
on human dignity. As the African Co~mission stated in respect to the right to
water, it is critical that States demonstrkte that they adopt 'deliberate, concrete
and targeted steps :o 1:1-ove as e~pedit~dusly an~,~J!~-~t_iv~~y ~s possible towards
the goal of full realisati.on.' 52 This apphe\ to s:o?.o~:~ono°:1c/1ghts generall~ •.
1
189. In the present case, while the Respondeft,~t8:!e d1d,n?t de11y that the conditions
of life of the Complainants does exist, J:1:'.e:;q:.Q~flain~ht,s:4t~·-nqt,..a.::gue that the
Respondent State is not doing any!fliP~ abou:ff\~pe fi'0~sit1-g"probl~m~Jn South
~=·R~;=:n~':: ~: :;;;~~\1:::~i?~:i~:::::~!~~
conditi~ns. 01: this que~tio:1'>of :ur~en~y, t~~\African ~o~issio~ rec~gni~es
that while soc10-econom1~ rights ar~ of 1mme~1i:l,t~ application, their realization
• •I
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is subject to available resources and th,e :I~e of coflst~te ~nd targeted plans.
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190. State Parties un~!;~FC}~~ Afi:t~~~ .f~a~ter ha\}::~~n o_pJi~ation to respect, protect,
promote and f:w!fill som.o-econq:n:pc ngh ,s such:_ fi~Jhe nght of access to adequate
housi:1g,_ wat1f sa:1i~ation and"hy?i~:1e, \and Q!ner basic services that safeguard
the d1gmty otJnd1v1duals and vulf!.e:ral:He groups. 53 However, they have some
discretion as '.'.:t9. how the resources· n5¢ded for the implementation of such
ob~igat.ion are 'f~(p~ all·o. cated and...·1tJiltied. The discretion a State Party has with
regar~ to resoU:rGft1,aUocation sh,p,uld, however, not be a limitation on the
1
oblig;~tj?11·.~? fulfil"ec:~I19g:1/Fr•t}~~iI~1 an<ll cultural rights. This is because State
Partie~. under.·the African€nafter are Jnder a duty to expeditiously fulfil the
socio-e2onorn,ic ~spect of the right of vtllnerable groups to live in dignity and
proper cond}tions in overcrowded spac~s or in spaces provided as temporary
I
accommodation.
"•
191. In the Prin~iples- and Guidelines on EkR, the Commission has noted in its
authoritative :interpretation of the Africap Charter that:
The duty to fulfil includes the adbption of measures that enable and assist
individuals and communities to gJin access to these rights on their own. In
cases where individual and commknities are unable to gain ac~ess.¢[~~{ ~,__~
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52 Guidelines on the Right to Water in Africa 2019 para (3.3.
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53 Principles and Guidelines on the Implementation of ~conomic, Social and Cultural ·.~hts
African Charter on Human and People's Rights paras 78, 79ff, 79hh, 87 & 92
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rights by the means at their disposal, the obligation will be, "to take measures
necessary to ensure that each perion ~oithin its jurisdiction may obtain basic
economic, social and cultural righls sa~sfaction. 54
192. In the instant case, while the evidence adduced by the Complainants
sufficiently depicts highly concerning li~ing conditions in the Rooikop Informal
Settlement, they do not sufficiently tijthe Respondent State with liability for
those conditions. The Respondent St e cannot be held responsible for the
living conditions of the Complainants in Portion 40 for the period that they
lived there, having not authorized the Complainants'- ,accommodation in the
first place.
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193. With regards to the living conditions ,f !~?t:~p,~ain~fr~ in Portion 41, the
Commission finds that the Respon9~jjt,i~tate "h~~>,, clt:)~bligc:1~on to take
~p~ropriate_ ?1-easures . for ad~r~ssi_¼1t.·~.he_ir ., ~b~sing, )?.-?. bl.eins,_~~d:;~d~fi~ult
hvmg conditions that 1s unbefittm$ qt J1e1r hU:IP;an d1gmty, The Comm1ss10n
also finds that the Responden~,,?t~te sh, ulq shoi its partic~l'ai:.programme or
plan for addressing these p:r0hk~rµs i~blm:lin,g ,with specifici,reference to the
situation of the Compla~1;:ants. B'e'y'.~.~~ [thi~',--:t~~l'.,~ is no ~pe~ific obligation for
the Respondent State _.t8raddress theJh\:i>}:lSI~g aQ?>,~SS?Ciated problems of the
Complainants within'a·H~f- limit d~Jpaflq.~q: by the~Cbmplainants.
194. The Responde\l(i};;~~,woJi~~,;~, res~oris(~j~;fbr violation_ of this right with
respect to tJ.:t:e• Complainants ;1~:~_Jhe Rresenj/·case, 1f 1t failed to take any
appropriate m'~asures including .,Il18R~!it~tion of resources to respect, protect,
promote and\fu,~fill these rights for'aJ~1;§0uth Africans lacking access to these
basic services;"q1Hf it discriminated,. ag'cl'.ihst the Complainants in the process of
prqyi,-9:ing acces1<tci't!lese services,i9 South Africans in the same situation.
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195. Indee¥(.•,:·a::i't!~,pary consid~r.ation for fo;,.ding a violation of the right of the
Compli:)Jnalit':8ii:J;h,e Respondent State jwith respect to the fulfillment of the
socio-e2~~~icrigh,t~·;p~:f,the Complainants is whether the Respondent State has
an obligafJ~'':i-1 specifi~i\io the Complaina~t for providing within a particular time
the service§~that the Complainants are laciking access to.
196. From the fo;tJfug and in the absence o)any evidence by the complainants that
the government is not following due prbcess in its effort to meet the demand
for housing, there is no clear indication ~hat the Respondent State has violated
Article 5 of the African Charter. For that reason, the Commission finds that the
Respondent State has not violated Article 5 of the African Charter.
Human Rights our
Collective Responsibility
Alleged violation of Article 17
I
197. The Complainants alleged that the Resp9ndent State violated Article 17 of the
African Charter. Article 17 of the African Charter affirms the right of every
individual to education and freely take /part in the cultural life of his or her
community. The Article also affirms the obligation of State Parties to promote
and protect morals and traditional values recognized by the community.
198. However, although no categorical submissions have been advanced by the
Comfla~nants to suppo:t. the ~llegation t1at the Re,1~lt~:~,~nt State is in vio_lation
of ~his .nght, the. depositions m support~of th·. e·,.·/:f1���.· ;.;·, ·1·.:.I·.e• · g·.a:ti9l,}·s·:··t····· s.tated that children
reside m approximately 68 out of the 75 a££1~$t~,q,,house~~Jds on the Property.
The children in those households attend scnools::w:hich ~ie within walking or
commuting distance to the Property. _,:r. •e");o~e;ifftt}Qt:(4·8~f,:::n.gt_ dispute this
claim and the imp!ication that ~vic_ppg lthe _G:°.1r-P!ain;t~!S t:tchn;:,t~r}Property
could have on the nght to education· of the children m the,~§.househoias.
t~:~;!tr;~.~~a:h~:l~:i:c:~~~~~
199
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their children.
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200. Should the problem· of':,tjgV,,Sii\)t~:~'.f&ced • .>l>~he ¢9mplainants lead to their
homelessness, _cljildren.from'.:ij£(~cfed househ'tjl?;ey~9tand to be out of school. The
Respondent ~fate has a responsitftt.to e!nsufftnat this does not happen.
201. The Commis'sibn must, however, ··cqµ1~Jo ,the conclusion that the evidence
made a~aila~l~t<z it. d~es not allmr it~J~~;~stablish with certai~ty that there has
been a v10lahori--of>A,.rticle 17 of th~.Afnc n Charter along the Imes alleged here.
I~ 't~t~:~~~nce _of a~tev~~~n~: _proving a ~iolation of this right, the Commission
fmds,{tat~1~;?-~~at10nof~!hcJel7 has oalcurred.
1
Alleged violdli,qn 0J#/14i~l~N:~. ·"
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202. The Co~tf~~~ants
that the Resp ndent State violated Article 18 of the
African Ch~~ter._ Article 18(1) and (2) £ the African Charter guarantees the
protection of{f,si,mily life and affirms the duty of the state to protect and assist
the family. <;/
1
203. There is no doubt that the right to family life is closely connected to the right to
housing implicitly protected in the Afri:can Charter. In the case of Social and
Economic Ri~ht~ Action Center (SER1:-C) afd C~m~re for Economic an~~~g~,
(CESR) v Nigeria (SERAC case), 55 this Comrruss10n held that altJ;f'~gJ:f,'the 1t'rgnY'('0~\
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and Social Rights (CESR) v Nigeria (SERAC Case) (20011 ACHPR.
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to housing is not explicitly provide for under the African Ch~rter, the
combined provisions of Article 14 on 1! e right to property, Article 16 on the
right to enjoy the best attainable state of mental and physical health, and Article
18(1) on the protection accorded to the fam.ily read into the African Charter a
right to housing.
204. In making this inference that the righ to housing is implied in the African
Charter, the Commission underscored(the· need to not interpret the right so
narrowly as to equate it only with shel er, by stating that the right to housing
~oes beyond shelt~r or _ha~ing a roof ofer c;me' s t~-a.~: 56 ,~t include~ t~e right to
live somewhere m d1gmty, peace and sec;iHity. 57 '{P\ the Prmc1ples and
Guidelines on ESR, the Commission not~s that::)·,\
\::\
The human right to adequate hou§~ngl•il~f;f:M::;ikbtqfi~?fy:per,~on to gain and
sustain a safe and secure hom~0{fLU corrirfly)Jity znrwhich"'to,li~~·1n:yeace and
dignity. It includes access t<:iilNJ!it,4ral. and'1,ggmmo~'·<rts~urces, 'safe drinking
water, energy for cooking,' healiijg;;;,, cooli,n,g and ligh#ttg, $anitation and
washing facilities, meC!:n(of food ~f8£Jjge' :::"'Fefuse disposdl}'.site drainage and
emergency services.SB
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205. The Commission ca~.:~lsp. l;>e inspired :b •· t:t11e u:i,~ij1iJ;~J;c;1.,tions General Comment
~~~!.: !eE:~~~~~' t!Q~:J1~~:ra, r~~;~
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Economic, So/¢[al and Culturalilg!J:ts deblaresJhus:
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roof ove'hif~1J(s head or viezA~ shelter exclusively as a commodity. Rather it
· ..~hould be ··~~.?iflr/J.s the right1f;fo live somewhere in security, peace and dignity.
".fhis,,is approprflfJ~W{qtmfdt;:,zeast fr O reasons. Jn the first place, the right to
. .~. ho~si'rjJ.··i{.~ntegraltiJ li~ked to ot~e~ huma~ rights_ a~d t~ the fun~am~ntal
,;prmqples;U:~~n ~t~;ch the Co?enar,t 1~ prem_ised. This the mheren~ dignity_ of
t]Je human per;son from which tHe nghts m the Covenant are said to denve
re"quires that ::the term "housingj' be interpreted so as to take account of a
varz~ty of other considerations, ost importantly that the right to housing
shoul'~ 'be ensured to all persons i respective of income or access to economic
resources. Secondly, the referenc~'!in article 11 (1) must be read as referring
not just to housing but to adeq~ate housing. As both the Commission on
Human Settlements and the Globa Strategy for Shelter to the Year 2000 have
,
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56 SERAC case (n 55 above) para 61.
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57 ~nited Nations Co~mittee on Economic, Social and cultural Rights General Cfi:g" ent
~t
nght to adequate housing (art. 11 (1) of the Covenant) (1~91) UN Doc E/1992/23 I?p.3<17,
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58 Principles and Guidelines on the Implementation of'
conomic, Social and Culpwal ·ight\!t.bffee
African Charter on Human and Pe·ople's Rights para 78.
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Human Rights our
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stated: "Adequate shelter means ... adequate privacy, adequate space, adequate
security, adequate lighting and ve~tilation, adequate basic infrastructure and
adequate location with regard to wbrk and basic facilities - all at a reasonable
cosf'.59
l
206. In the present case, the Respondent Stat submitted that it recognizes the right
to housing under Section 26 of Constitu~ion of South Africa. That it has further
given effect to this right in several piec~s of legislation adopted by the South
African legislature.
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207. The Respondent State also argued that it is doing ~veryfh-:t~g within its power to
address the housing crisis of the Co pla,J1}~rts. Ho~~ver, to do so, the
Municipality is required to comply wit Sotithi;~;ican d:§mestic law that give
effect to the right to housing under the: C:pi~titutin~~~ef:2~1~::Jt';Ql;~Y proceed to
purchase the Property or secur,<{;/ lternaft~e ·aq~fa)µmt6dag:§m,?,Jor the
Complainants.
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208. The Respondent State als961/~~t:~~ed ha,}f"}In:der South ~~iffcan law, the
Government is obliged to balanc~i.ib1~ eerri;Q8WPeting interests - that is, the
obligation of the Gove?nroent to pro14:t~ acce~~~9)1ousing, and the obligation
to uphold the rul~<6:6.fJt;J~w (by aJ~;ist1\J?:,iaging·\~i:td,:'preventing the illegal
occupation of prol?~rty). 't/:J"iii;
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209. The Respondev·i~tat:,~lso ;:~~:.;~d th t t;:~:~t~icipality has an obligation to
con~uc: :7ari~~s studies on the P~~f~f~ to d~ter~ne the appropriateness and
hab1tab~hty ~~'.\ t?e Prope~ty ?ased{:?~;;0,domestic !a'; a~d to ensur~ ~~at
expenditure 1s:· Jpcurred m lme, w,~t.1' South Africa s fiscal respons1b1hty
legi~Jation. The>)~~spondent Stat~::furtHer submitted that if the Municipality
:~ift~~L~,~~~~tiiflf:r:& :ls~~:::;~;:d{i'::1:~:t:
consid~&~d''i,~i~fSf}:l expen~~tur~" und ~r its fiscal respons~b~lity_ laws, which
could haye 1s~r1otts:l~g§llJam1f1cat10ns for the government officials involved.
1
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210. It is the
of the Jg~plainants that aithough they are upon property that is
.
owned by a;~":iy;~te third party, they en~ered upon the property at the instance
of and with J\ie permission of the Government. In fact, the Respondent State
admitted in ffs arguments that, indeed,! the. Complainants "were moved onto
the Property as an emergency measure fbllowing a flood in the area where they
H
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African Commission on
Human and Peoples' Rig!:rts
Human Rights our
Collective Responsibility
were living." 60 This aligns with the Complainants' claim on how they occupied
the property.
211. The situation of the Complainants seems precarious. They have argued that if
they are evicted from the property by th~ owners, they have nowhere else to go
and will, in the process, be rendered hJmeless. That having entered upon the
Property at the instance of the Munici~ality, the threat of homelessness they
face is not being addressed with the urgtncy that it deserves.
212. T~e Respond:nt State has a:~ed that i weigh~n~1,lt~~]/~blig~ti~ns to fulfil t~e
nght to housmg, the Comrmss10n must ave reg,c;tra tor~~Jtpnnc1ples of margm
of appreciation, subsidiarity, projessiy;gJ/Jj\realizat1~i;i. of rights and
proportionality.
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213. The African Commission recalls its <!7il
fllel'.li)~);t;{&f~§fs!'Jh Africa
with_ r_eg~rd to the m~r~in ?f ,,app~-~fation a.~ctri~e%~lz1.. t~e pf1nci~le of
subs1dianty. The Comm1ss10n 1~;;,tware tlq:t~ot~,sfoctrmes est~S!\~,h the primary
competence and duty of the,~e~p9pdent St~t~··to promote a1;t·protect human
and peoples' rights withi·
..-.~.i. its dorrie~)!;jt.~f·d· er:Ei\~)> .
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claiirl.Jo>:.be
better situated than
••• •. , .•..,...
··<·•" I··""'••····
:
local courts in adv,a11fing 1\fil:man . .eJJt1. peopr~~:"righ!s ;in member states. 62 That is
why the Afric~~::c2hart~r giv~~twember ktate$;)~;~y:te latitude in specific Articles
to impose sp~cific limitations1t~p}d re~uire~J;complainants to exhaust local
remedies. However, the Africartff:1[~orrhnission will not allow a restrictive
interpretatioJfttse two prindpl~\,,re Respondent State~ this matter.
215. Tq,qe clear, the purport of the dictum on the two prmc1ples m the Prince case
W~$ not to oust the'inandate of-,the cdmmission to monitor and oversee the
imp}~~~ril~~ipn of "ihe\A#~¢art •ChartJr. While the doctrines of margin of
appret'.f~tio·:ft•~p,<l,.~~bsidiarity
recogniz~I the primary responsibility of States
..
..,.. ,............,•.·.
Partiestq;1p~.g¢ote·aJjgf'~,Otect human a~d peoples' rights domestically, they do
not deny'"the Commiss,icm's
mandate to guide,
assist, supervise and insist upon
!,,.,
I
States Parti'.~~, ~ompliance with the prq~isions of the African Charter where
do not advocate for a hands-off
they fall shor.t
m that respect. The dodrmes
.,,,.')>v
I
approach by,;:;fthe African Commission on the mere assertation by the
Respondent State that its domestic pro! edures meet more than the minimum
requirements of the African Charter. 63
·«...
°First Submission on Merits on behalf of the Republic of South Africa para 5.29.
6
Prince v South Africa (n 22 above) para 52.
Prince v South Africa (n 22 above) para 52.
63 Prince v South Africa (n 22 above) para 53.
61
62
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African Commission on
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Human Rights our
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216. With regard to progressive realization of rights relied upon by the Respondent
State, the African Commission notes he important strides made by the
Respondent State towards the progressivf re~lisation of the right to housing in
South Africa. 64 In particular, the Government has between 1994 and 2016
provided 4.3 million houses and housin~ subsidies to about 20 million South
Africans, and with a target to deliver 1.5 Itlillion more houses by 2019.
I
I
217. Progressive realization of rights is the lbligation of states to gradually and
constantly move towards the full realizdtion of economic, social and cultural
rights with!n the resourc~s available t_o ~~em. 65 In,,t~t~r:jfci_Ples and '?ui?elines
on ESC Rights, the African Comm1ssi~n n~tef that' -~IJ.ile the prmciple of
progre~sive. realizatio~ of economi~, ~ocir,l aµd.;~uttural _iif?hts _is not exp~essly
recognized m the African Charter, it is wf:,~~!Y acc~p~ed in.:,!.he interpretation of
economic,_ social and cultural ri~hts ~~:~~;fri,~q~f,fd1~,~~+~1tli/~~:ti~1:7
and 62
of the African Charter, has been
;;~to tlle;wnca,i,~et><.l/)
a
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218. Therefore, States are under _cqntinuing~J,iuty/,t.o move as,:expeditiously and
effectively as possible towarcli3'.)t1,J.~ fulll V¢.:~l{s~tion of eco11omic, social and
cultural ~ights in their _coµntries. 66 lt/~ wfrth1;i\~t~rg that the background to the
preparation of the Afr1cqn Charter show~. that th:~};'<;i~afters of the Charter were
mindful_ of. the..·. p·r·in.·c···.}ple'.:~r p~ogr_:~'.~iYe'J1;~:~!iza.t. iorl:);··.~;:&rafting the list of socio•
-,~,/
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economic rights gf;,@.~ Chartef:. ./4(';:·
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219. The Commis~ig,n is, however, Be-m,indf that"'progressive realization does not
give the StatE{/total leeway for d~t~rhlinihg the fulfilment of its obligations on
socio-economi,[::i;ights as it deems fit~ttli<:!jtommission wishes to affirm that the
principle of p:t~i~[ssive ~ealizatio~/: im,p9ses ~pecific obligations f~r which the
stat<r·,~i:m be held"~,~;~17~ms1ble. It tl}gs wo1ld fake to draw the attention of States
that,'€~~!s~!~to the prin,~1Bl.~,.8f::iji~gres~ivej realizatio~ of socio-economic r~ghts is
the oh~igat1~I1.tthe State bearsr'for putting m place evidence-based strategies and
speciffc:_,plans,·qnd;,programs that clearly lspecify with measurable benchmarks
the steps\a,:n~'gene:ral tiF'elines to~ards ayailing_ access :0 socio-economic r~g_hts
to people ,with no access to vanous basic social services such as electricity,
water, housi1:_g·.' health care, education, srburces of employment or livelihoods
and social sec,urity. The State has accordi gly to demonstrate that it has put in
place such strategies and specific plans and programmes supported by the
requisite resources. It also bears a respoisibility to demonstrate progress at a
speed and scale corresponding to the magnitude of the needs for access.
~
64 First Submission on Merits on behalf of the Republic
ot South Africa para 5.13.
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66 General Comment No. 3 on the African Charter on Human and Peoples' Rights: The ~i~t
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para 40.
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Human and Peoples' Rights
Finally, it has to also show that it is tleploying its available resources in a
manner that displays both commitmerlt to expand access to socio-economic
rights and to the implementation of its 1sportsibility.
220. As the Commission notes in the Principlis and Guidelines on ESC Rights:
The concept of progressive realisation mea _s that States must implement a reasonable
and measurable plan, including set achievable benchmarks and timeframes, for the
enjoyment over time of economic, social \-and cultural rights within the resources
~vailab~e to the state party. Some obligatior,_s in_ rela~,?-J:l?toi'r,rogressive realisation are
immediate. For example, States have an oo lzgation}9:,lake-c,,q'f}. ,.crete and targeted steps
to realise economic, social and cultural i:ightS;tEt,~f essentiq,Z,, needs of members of
vulnerable and disadvantaged groups sho1ld bt!'jirz~~lt;ised iii/all resource allocation
1
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221. :r::se;resent case, the imp~I\d,iltr threa\ \ ~~:~{i:~:~~~'ii;hat the
Complainants ~ace should o_,r,,1inarily\::: ~~icit ./~9me ur·g~}(:,. r,~sponse from
Government without promBJ!;pg\ As a- ,p,articularly vulnef,eJ5le group, the
Respondent State has an obligatid'f1'lp ur~entlii$~ke concrete and targeted steps
to address the essential p;eeds of the'•~a,rr{plaina.'11;ts·~-,
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222. On the issue of proR6rtioti,~Utyi tlJ,~tReswo.r;tgent State-submitted that there is a
need to balanc~,tl)~•inqividiliil:J11tli;ests bf tft¢_'.½g:p;iplainants against that of the
public interest:/rhe R~sponde'hf§Jate suhmitt~~ithat the Municipality has been
and still is:-' in the process ·bf.'.SiiRroJiding:· appropriate housing for the
Complainant~.\ The Respondent Stit;J,i,:µdicated that the Municipality has
identified alte:i:~ative land for dev.flop~~nt and is in the process of finalizing
th~)ast legislatiye":i:equirements qe'fof'e d:onstruction of houses can commence.
Th~}~~s.:p~ndent ·st~fe ~lso s~b~itted t~at the administrative process for the
prov~sion;,,ofJ:iousing· u11_q,:er S,outh African law may be cumbersome and time
consu~fng/aita1,that the Municipality hJs no choice in the matter. And that the
Complai~~9:!~Jfl:W-ilQ?f:,~Wongst the persfns to benefit from the housing once ~t
has been-z~~nstructe1t~W The Responde9t State argued t~at ~he government 1s
best placed:itp determme how to accommodate all competing mterests.
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223. Considering tfitiength of time that has gone by since the Complainants first
allegedly submitted their application for housing, the Complainants have
argued that they are not satisfied tHat there is any real seriousness or
commitment on the part of governmen~ to address their housing ~is~~l11 an
urgent way.
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f South Afnca para 5.~{t %.
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224. It is the position of this Commission tha the necessity to follow legal rules in
the progressive realisation of economic, !social and cultural rights must not be
used as a yardstick by states to evade tHe responsibility to fulfil the obligation
to provide housing for those that are dJsperate for housing. The requirement
for the Respondent State to act in cotpliance with domestic law does not
trump its domestic and international hu an rights obligations to prioritise the
Complainants and any other set of . ulnerable groups in the process of
allocating its resources, and to act fast in the process.
1
1
225. The Complainants have repeatedly ad itted, in~l:A:~~p,g on the record before
South African courts that they are i illeg~f"·'~c2itp~Jion, but that their
occupation was at the behest of the M41Ji'i{f~c!lity. ft{~ Respondent State
confirms that their occupation of the Prop~_rty 'w;~~,.,-~n e,ifl{~rgency measure to
remove them from harms way in t]:i¢lpr¢yiqpsiy::l!2oueq:r1:!;grtla,n 40. This
suggests that unless the RespondeniJ~tate tak~·s urg't~'D':h-~teps'2f8l~lttlress the
unintention~l illegal occupation )W tn:e:~pmplaiilants, th~~I;~11; m~re likely than
not to be evicted and renderesr}J{omeles~> It tll~_,Responderttii~t~te were to opt
for purchasing the property,<<it{~~i,,,sub~ta!\\ia,Jiy reduce the1i~ost of relocating
the 76 affected househo!,<Js. Howev:~~?,a}f the R~~Rondent State were to opt for
providing alternative,,~£%?mmodatiog~:[i:t, rvould n~~<! t,o"> devote more resources
for that purpose. Either·a~t~2n will.,13P.dr'es.~,1tpe Complainants' housing concern,
1
the right of th~: liwJul 'o~q,~J{i hf th 't1t:ite~rty and the responsibility of
government µrider th~ Sout:kf:I/\Jrican Consf:{fution as well as the African
Charter. However, this Corri'fuis~ion leav~~ that determination to the
Respondent
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226. Between 2004 -~µli., 2022, the Goverµn{l t has had nearly two decades to seek
alt~rnative accon\mod~tion or bt-ff·/and evelop the property for the settlement
of the_ -C::omplainanfs<~spreyJ()usly expressed by the Municipality. There is no
indici:l.ti?n>tll~\tlle Gover11ineht plans tf utilize the option of formalizi~g the
Compla,~nants" s~'l:tle,IJ;l~1;t on the Prope~ty. Rather, the Government rehed on
Annexures;._RM8 titled•·ff·Wetland Delineation and Functional Assessment for
Wadevill~ :llxt. 41" by ·wetland Consulting Services (Pty) Ltd dated October
2007, and R,1\1 10 titled the "Rooikop Station Report" by the Ekurhuleni
Metropolitan:Municipality dated June 2016, to buttress the point that the
property is unfit for human habitation. 68
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{: African Commission on
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Human Rights our
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Human and Peoples' Rinhts
However, the experts also noted that w ile removing the Complainants and
their dwellings and relocating them elfewhere would help to manage the
stormwater generated by regular floods:
J
.
Given the demand for housing it [the Complainants' Settlement], and the already
altered state of the wetland, might be mofe appropriate to accept and improve the
current residential development rather than to move the people and their
infrastructure to a new greenfields area, as ndisturbed grassland within the Gauteng
area is likely to have a higher conservation value than this particular section of the
wetland. 69
228. The Respondent State seems to have totally i'gn9red tfii~:\recommendation in
preference for the more worrying option ~f
e\hctiph.,, albei(at the instance of the
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private owners through the domestic j~:1l¢lij!(iJ,?,~oc·ess.:'.:::[b~i\~,~;v;~~~ent argued
that Villa Liza ~xt 4 - a gove~nmen:1,~f~kd pi~~,ert?·'.7,tit~rence!;l,;Jn~nnexure
RM10 page 2 1s a~ alter~atlve_;~d:~: reel w~ffh 1s u~~~~ development to
address the Complainants housing cns1~ . ,s,)?
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the 348 households whi,ch the MunidF~F~ pl~ii.~;;tP relocate to Villa Liza Ext 4
are the households )_o2a;~~~ on the,~:fn:1i~~i,ng exfe~!::9f>portion 25 of portion ~
of farm Roodek~R:t~E.9-IR~.?t>a g!i~t·pnvrt~l~-,,ow~~,9~ not by the IDM Trust It
does seem but~.9y'tne~lesberg I~vestmenl (Ptx~.:;½.td.7°
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the 76 househbl~~ of Portion 41 of f~nifRboikop 140, who are the Complainants
in~th.ts Communi~.~ti.on. This sugg~~ts'that the Complainants may be justified in
thei~;J~ar.~ that tn'e¥1;;]'.~_._&f_i::>~.o.,!_._·.· _ <:?.1,_J~~uately fatered for in the planned relocation
and altet11a'tive housing,ipro'g!amine of the Municipality.
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231. Whilst 'th~ ~esj:fori~~nt $.tate has an obligation to uphold the rule of law by
enforcing.'l~gislatior1.'thaf prevents the uclawful occupation of private property,
the Complainants' illegal occupation of !private property in this case was an
emergency q1e,c:1~ure by the Respondent State to protect the Complainants from
the flooding ¢rfsis at the previous resideJce on Portion 40. Having put them on
the propertJ''or permitted their entering upon the property, the Respondent
State cannot turn around to claim that the Complainants are in unlawful
ACHPR
s
African Commission on
Human and Peoples' Rights
Human Rights our
Collective Responsibility
occupation without either dealing fairly with the owners or correcting its own
mistake.
232. From the facts of this case, it is clear that the Complainants are in no position to
afford proper housing otherwise they w ould not be living in temporary shack
structures. If they get evicted from the Property, there is no alternative land on
which to erect their temporary shelters. This will unfairly expose the
Complainants to the elements and undohbtedly violate their dignity as human
beings. As a group of people, who have ii.ow:here else to go, they are entitled to
insist on their right to housing under th~ Constituti6'tt;qf the Respondent State
and t~e _African Charter and to invoke tte. obll!itioil. lqt;.Jh.e Respondent State
1
to fulfil It.
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233. Having come ~pon the Property at the)1;f:tan;~e•~f tn~;_:~~~~i~;JJ\~¥~'.!: is no fault
of the Complainants that they_ be~a,~~:_upiawful?cctip~t~.~."'.o.·£.·prrv~t,1;~1rr~perty.
The Government has an obhga~on.> to:j,.addres~·". the uru,awful occupation of
property belonging to a thirdJ/~rty whtch wc1s :a tempor11~.y;,m_easure it took
when it brought the Complafna~f~i~ponl\h~) p~operty by pr~M:iding temporary
shelter for them pending.when the¾~h9v~ acce~~,.to adequate housing. As such,
while the Commission,ra'oes not fi~"Ef\a,lviolatibn:·of Article 18 of the African
Charter, it urges the{€;b~'~rnment toJl'a~t~§S the 'lli}g~l occupation associated
with the tempa.ra:f,~,cc~~~?j,~'6rt of ~lr~f~§;t>mpl~'fnants in order to protect
their right to family life~·in liriei~I,f~ the A ricah,~$narter.
Alleged violation of Article 19
234. The Complain:ants also alleged a v:iolltrg,'· of Article 19 of the African Charter.
Artic:_le 19 of the\~.fri~an Charter pi:9vide that:
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AW'fipdp)?s,.~ball be equal;"Jhey/shall enjoy the same respect and shall have the same
righl$\_NothinJ:shap justifiJ the domination of a people by another.
235. Ar~icle i:9/~fii~~~ .th§·j~quality of all pe i ple_s, and the right as a co!lective to
enJoy the S~J?e respect and have the sanr,e nghts as other South Africans who
have been pI'QVig_ed housing by the Respondent State.
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236. The Complafoants submitted that they deserve to enjoy the same rights and
respect as the rest of the country and the !only way to enjoy such right is by the
Municipality delivering on its housing ob igations with respect to the OCCl!J2~!l.~~
of Portion 41.71
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of South Africa (date 8 March 2013) para 1.1.7.2.
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237. The Respondent State did not challenge this contention but rather argued that
no specific factual allegations about violation of Article 19 has been made.
I
238. While the Commission agrees that the Gomplainants have a right to be treated
on the same basis as other South AfricaJs who have received housing from the
Respondent State, it however finds t*at the information provided by the
Complainants does not allow it to make a finding that they are treated
differently from others of similar conditilons. As such, the Commission finds no
1
violation of Article 19 of the African Cha[ ter by th:;:;;,~ndent State.
Alleged violation of Article 22
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239. The Complainants also alleged that Article 2f{}~~\l:i,e
Af;l_~kn
Charter has been
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violated by the Respondent State.
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240. Article 22 of the African Charter p~oy,J_c;iE: as follo'vvs:
1.
2.
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All peoples shall have . tJ.{~]t righf ,:_to\,thei/ ·economi~~f\;;:J~'pi_tjl> and cultural
development with due ri~ar'ii/f'.'to,, the r fr~eqo_,m and identityfand in the equal
enjoyment of the contlJlOn heritag~?qfmankirtat>..
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States shall havl':thi(iJ!,!,h}, ind(pfdii.a1. 'y,;L~[ _collecti'JJely, to ensure the exercise of
the right ~:(:'.~~f/<ilpfme'n't)J}\,.:{;'fr
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241. The Commis§ibn has developi{~}jjµrisp uden¢;~: on the right to development
under the Afg~~n <:=hart~r. In the'c~].~;,? I fe~tre for MinorihJ Rights De~elopment
(Keny~) and t?J}ironty Rig~ts .Group 'I~;tirzatwnal on behalf of Endorois Welfare
Council v Kenya;;:th~ Comm1ss10n h~J d<fnat:
~~~;-~right_ to de~~i~~fheJJL is a_.p;i:J~!prongkd fest, that it is both constitutive and
ins'tr_umeital,_ or usefa}'.,a$;Eb."otfl'a meanJ and an end. A violation of either the
proced7,J.rai or substantive element constitutes a violation of the right to development.
Fulfilli~~q~li/oneiof th_e two prongs will n]! t satisfy the right to development. 72
242. The right tq\developr:nent is constitutive to the extent that it is recognized and
protected byJaw; it is instrumental to th, extent that it empowers its holders to
be consulted,':to contribute to and participate in the decision-making processes
concerning them so that other rights are not violated. In all of this, the freedom
of choice must be present as a fundamentkl part of the right to development. 73
243. In the Endorois case, the Commission clting the UN I n d e p e n ~
1
Development noted that development i not simply the Stat~'~prb isi~R of 'o~,
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72
73
(2009) AHRLR 75 (ACHPR 2009).
Endorois case (n 72 above) para 278.
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housing for particular individuals or pe1ples; but also entails providing people
with the ability to choose where to live.74\
244. In the instant case, the Complainants argued that after living under deplorable
circumstances in self constructed shack~ with minimal public utility services,
their having to face eviction amounts to a violation of their right under Article
22 of the African Charter. The reality of the deplorable living conditions of the
Complainants were not challenged by tfe Respondent State and the latter has
advanced no rebuttal to the Complainants' submissions.
;:::-··,,._
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245. Regardless of the non-rebuttal by the Responde9-t°Stat~,':110 evidence has been
advanced by the Complainants to dembns~a:te\that the,JMate is to blame for
their deplorable socio-economic conditio~~)'11d·h~nc,e to ~#pport the allegation
·violated.
':For.,, this claim to
that Article 22 of the African Charter/41.as:'-been
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succeed, the evide~ce ~efore the _c~,~p:i~ssiort·qt,~~t su:pp~~t the--all,~?fti~n that
C:nqt(er
there has been a v10lahon of ArtieJe,~g>.Qf
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responsibility of the state for th,efr·socio::'.eq·9nonµc:ideprivatibr1h,,._f)
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246. From the arguments present;~~';h:~Gomi;:ti~: have not a~~:uately justified
this allegation by addu,cing cogent '~v,jdence i;~~gport of the circumstances of
the. allege~ ~iolati°,n-- -~rhi~_r _Arti5~e:~ 22:l~Jhe Cd~tsMon cannot _be l~ft to
con3ecture m its.,4~!~~!111-natior c,fr;;whethfr" ~r\9-ot t))ere has been a v10lat1on of
the provision. .-~s~'sucfi;.rthe Coµimission indstfiafthe Respondent State has not
violated the Jtr:ovision of Article'-~~,pf the Afrifan Charter.
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247. The .Complainarits,,,also alleged tp~f th . Respondent State is in violation of
Article 24 of the African Charter. /:Jr
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248. Article\ .24· ofJhe_. ,t\-frican"t:'iiarter protects the right of a people to a general
satisfactpry erivfropinep.tJavourable to thkir development.
249. The righ;~hshrine~ i~,;Article 24 of the krican Charter affirms the importance
of a clean arid safe environment that is biosely linked to economic and social
rights to the k)(tent that the environment [affects the quality of life and safety of
the individua:1.75
I
250. In the SERAC case, the Commission noteq that the right to a general satisfactory
environment under Article 24 of the Afr~can Charter imposes clear ob1iga:ti.Q.ns
on government. This ~uggests that wher~ a State Party to the A~Q.1fj~~fails to ensure that its citizens reside in a ~lean and health envir~~~f-if, ·t-GG.ufa ~0-o$'_,,_
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75
SERAC case (n 55 above) paras 51-52.
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amount to a violation of its internatio]al obligations under Article 24 of the
African Charter.
251. A State will be said to have violated tHe right to a healthy environment of a
people under Article 24 of the African C~arter when it interferes with the living
environment of the people, or when it fails to protect them from interference by
others or when it does not take the neckssary measures for creating a healthy
atmosphere for people living in an un~afe environment as expeditiously as
available resources used judiciously allot,
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252. In the present case, w~ile there is room ~~r the ~~sj5ona'i~} State to i_mprove its
1
programme for creating a healthy enviro~7r;iJ for tit€!:, Complainants, the
subm!ssions made and available evidenc~:;:~6,_nil(:~MPPorvt~onclusion_ that the
gaps in the Respondent State's efforts ".1reJo.~J~~el'tlj,~tm~~!,tJ£.~r{;qmrements
for finding a violation of its obligatiopi\uhder Ar:t~cle 24t~~::!he"1\:fti~f:tl~Parter.
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253. The fact that the P,.fric"'.1 Comn_ijfSi~~
to ~j\Jip,'/Jl'lg_ :1_ specific
v1ol~tions of the :1?hts in the,,:©~p;~~r doys·!l?!:mean that :he ,:~omm1ss10n does
not find the conditions of the affecte'q·,people to"be concerning>Indeed, as can be
discerned from the g~mmission 1s'j;.:f":;1~lysis ' i~'>the foregoing pages, the
Commission finds tl-iese:tffmdition,§r:/H5·~~~-·- very ·,cppserning given that these
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this, the Comgµssion is of the vr~$':~that tte RE;~pondent State should go beyond
a minimalist a11-d
legalistic appro.ii'dl]~!o
acldressing
the concerns of the affected
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communities. for the Respondent Staf~,/;J~;:,1ibe considered as a State that takes its
obligations for·l:ruman and peoples' rigfitk seriously, it should make extra effort
by)1d.9pting targ'e!~d:µieasures to acldresd the housing conditions of the affected
peoRle:JV:.itb urgency,. •.
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254. For the~ti:eF1§d~~;'l~tA£:r,ican Commission:
•
Firtcls no vioia'.,tion of Articles 5, 17, 18, 19, 22 and 24 of the African
Ch;~fer.
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Adopted during t~e 76th Ordinary Session of the African Commission on Human
and Peoples' Rights, held virtually from 19 J ly to 2 August 2023.