ACHPR
African Commission on
Human and Peoples' Rights
Human Ri ghts ou,
Co ll ec tive Respo11s 1bil1ty
COMMUNICATION 785/22
Selemabothokgo Magdeline Rchidi
V
Republic of South Africa
Adopted by the
African Commission on Human and Peoplea' Right8
During the 83rd Ordinary Session held tn Banjulfrom 2"" to 22"" May 2025,
Banjul, The Gambia
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The African Commission on Human and Peoples' Rights
An Organ of the
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31 Bijilo Annex Layout, Kombo North District, West Coast Reg ion
Phone: (220) 230 436 1 Fax : (220) 44 1 05 04
Email : au-banjul@africanunion .org
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African Commission on
Human and Peoples' Riqhts
Human Rights our
Collective Responsibil ity
Decision Of The African Commission on Human
and Peoples' Rights on Admissibility
Communication
785/22
Selemabothokgo
Magdeline Rachidi and the Republic of South
Africa
Summary of the Complaint:
1. The Secretariat of the African Commission oh Human and Peoples' Rights (the
Secretariat) received the Complaint on the 16th of February 2022.
2. The Complainant is Selemabothokgo Magdeline Rachidi, a South African citizen,
employed by the Limpopo Department of Health hereinafter referred to as Limpopo
Health Department) as a Staff nurse at the Mankweng Hospital. The Respondent State
is the Republic of South Africa.
3. According to the Complainant, she was translated from Staff Nurse to Professional
Nurse.
4. She was enrolled in that capacity on the 3pt of May 2019 and began performing the
duties of Professional Nurse on the pt of June 2020. 1
5. The Complainant avers that on 14 September 2020, the Department of Health, by
letter addressed to the Chief Executive Officer of Mankweng Hospital reversed the
translation and decided that the payments made to the Complainant as Professional
Nurse with effect from the 1st of June 2020, be recovered by way of deductions from
her salary. 2
6. According to the letter of the 14th of September 2020, the reason for the reversal was
that the Complainant had been wrongfully translated as she was n • . - HU• 4• - for
appointment to the position of Professional Nurse at the time of her,,t <fil'SJ~io~&t ~"-'0 .o/'•~
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The African Commission on Human and Peoples'
Rights
31 Bijilo Annex Layo ut, Kombo North District,
West Coas t Reg ion Gambi a
Phone: (220) 230 4361 Fax: (220) 441 05 04
Email: au-baQjuL@africa-uni on.org
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7. On the 28 th of October 2020, the Complainant received a letter from the the Acting
Chief Executive Officer of the Mankweng Hospital notifying her of the Limpopo Health
Department's decision. 4
8. The Complainant then seized the Labour Court of South Africa in Selemabothokgo
Magdeline Rachidi v The Head of the Department of Health and 2 others, Case
No. J1231/20 (Labour Court Case No. J1231/20) seeking urgent interim relief to halt
the deductions from her salary. 5
9. On 17 November 2020, the Labour Court dismissed the application, for lack of
jurisdiction, indicating that the matter falls under the competence of the Bargaining
Council or the Arbitration of the Bargaining Council, if unresolved by the Arbitration of
the Bargaining Council. 6
10. Subsequently, the Complainant seized the High Court with an urgent application in
Selemabothokgo Magdeline Rachidi '( Head of Department ()f Health Limpopo
and another, Limpopo Division, Polokwane, Case No: 2628/2021 (High Court
Case No: 2628/2021 ), which on 23 rd April 2021, was struck off from the roll, for lack of
urgency. 7
11. The Complainant then filed an urgent Application for direct access at the Constitutional
Court in Selemabothokgo Magde/ine Rachidi v Head of Department of Health
Limpopo and Another, Case CCT 134121 (Constitutional Court Case CCT 134/21)
which was on 3rd May 2021 dismissed ,because no case was made out for urgency
and direct access. 8
••
12. After this, the Complainant approached the Comrryission on 16 February 2022.
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ARTICLESALLEGED TO HAVE BEEN VIOLATED
4 Complainant's Observations para 37-38; Annexure SMRS
5 Complainant's Observations, para 43
6 Complainant's Observations, para 43
7 Complainant's Observations, para 22
8 Complainant's Observations, para 26-29
21 P age
The African Commission on Human and Peoples'
Rights
31 Bijilo An nex Layout, Kombo North District,
West Coast Region Gambia
Phone : (220) 230 4361 Fax: (220) 441 05 04
Email: au-banjiJl@africa-union.org
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15. The Secretariat acknowledged receipt of the Complaint on the 2nd of March 2022 by
letter Ref:ACHPR/COM/168/22.
16. The Communication was seized and the Complainant invited to submit observations
on
Admissibility
and
Merits
on
the
16th
of
June
by
letter
Ref:ACHPR/STC/COM/785.22/519/2022.
17. The Complainant submitted the Observations on Admissibility and Merits via email
dated 28 June 2022.
18. By letter Ref:ACHPR/COM/785/22/RSA/267/2023 dated 6th March 2023, the
Secretariat acknowledged receipt of the Complainant's Observations on Admissibility
and Merits, and the same were transmitted to the Respondent State by Note Verbale
Ref:ACHPR/COM/785/22/RSA/269/2023.
19. By Note Verbale Ref:ADD-18/2/AU/ACHPR/1/28/02/23/6361 dated 26 April 2023, the
Respondent State requested extension of time to submit its reply.
20. On the 26 th of April 2023, the Secretariat wrote to the Respondenl .State via Note
Verbale Ref:ACHPR/COMM/784/785/786/787/788/22/RSA/509/2023 informing them
of the Commission's decision to grant an extension of time. The Secretariat also wrote
to the Complainant informing her of the same.
21. The Respondent State submitted its observations on Admissibility and Merits by Note
Verbale Ref:ADD-18/2/AU/ACHPR/1/26/05/23/6394 dated 26 May 2023.
22. By letter dated 26 May 2023; the Secretariat wrote to the Complainant transmitting the
Respondent State's reply and inviting-her to submit a rejoinder if they so wished.
PRAYERS
23. The Co'!lplainant, accordingly, prays for an order as follows:
The African Commission on Human and Peoples'
Rights
31 Bijilo Annex Layout, Kombo North District,
West Coa st Region Gambia
Phone: (220) 230 436 1 Fax: (220) 441 05 04
Email : au-ba,njut@africa-union.org
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24. The Complainant submits that her Complaint discloses the identity and therefore
complies with Article 56(1 )·9
25. Regarding Article 56(2), the Complainant propounds that the Complaint alleges
violations of rights guaranteed under the Charter and in those circumstances conforms
with the Charter as well as the Constitutive Act of the African Union (AU). 10
26. The Complainant argues that the allegations raised in the Communication do not
contain disparaging or insulting language. 11
27 • On the requirement in Article 56(4), the Complainant avers that the claims for
violations in the present Communication and the allegations therein are not based
exclusively on news disseminated through the mass media. Instead, they are based
on the decisions by the authorities or institutions and courts of the Respondent in the
Republic of South Africa and the court proceedings which took place within the
domestic courts of the Respondent. For this reason, the Complainant submits that she
has satisfied the requirement for admissibility. 12
28. The Complainant submits that she has exhausted all local remedies in the Respondent
State as she has litigated through all the local courts, all the way up to the
Constitutional Court which is the apex Court of the ;RespondentState. 13
29. It is submitted that the Complainant filed an urgent application for an interim order at
the High Court, Limpopo Division, Polokwane on the 19th of April 2021 , which
application was struck off the roll for lack of urgency on the 23 rd of April 2021. 14
30 • Aggrieved by · ·the order of the High Court, the Co,mplainant approached the
Constitutional Court seeking an order for direct access to set aside the judgment and
order of the Hig~ Court, on 03 May 2021, the Constitutional Court dismissed the
Complainant's application. 15
31. The Complainant argues that the Communication complies with Article 56(6) of the
Charter in that the Constitutional Court handed down its Order on 03 May 2021 and
the Complaint was finalised on the 13th of May 2021, and sent to th~ Commission at
the end of May 2021. 16
32. Furthermore, the Complainant avers that the Secretariat of the Commission states that
the Complaint was received on 16 February 2022 as opposed to the af . , tl ioned
end of May 2021. They argue that in any event, if the date of 16 th o,t~
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taken, it would still be a reasonable amount of time within which to fi'~ '{ h't .__..,.TTKJ ~int:'1>,!<_
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9 Complainant's Observations, para 6
10 Complainant's Observations, para 8-9
11 Complainant's Observations, para 10-11
12 Complainant's Observations, para 12
13 Complainant's Observations, para 13
14 Complainant's Observations, para 14-15
15 Comp lainant' s Observations, p ara 16-17
16 Complainant's Observations, para 20
17 Complainant's Observations, para 21
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33. Finally, the Complainant submits that the Communication complies with Article 56(7)
of the Charter as there was never settlement of issues by parties in accordance with
the principles of the Charter of the United Nations, the Constitutive Act of the African
Union, the provisions of the Charter or any legal instrument of the African Union. 18
THE SUBMISSIONS OF THE RESPONDENT ON ADMISSIBILITY
34. The Respondent State submits that the Communication is inadmissible, and they
primarily focus on the requirement to exhaust local remedies under Article 56(5).
35. The Respondent State observes that the Complainant's position that simply litigating
to the Constitutional Court is sufficient as it is the apeX'-<::ourt, they submit that the
Complainant still had available domestic remedies that she ought to have exhausted
prior to approaching the Commission. 19
36. It is submitted by the Respondent State that the order of the Limpopo High Court to
strike off the Complainant's case for lack of urgency was not final as the matter was
not adjudicated on the Merits. 20
37. To these ends, the Respondent State propounds that the Complpinant could have set
down the matter again on the normal roll in accordance with the rules of procedure
prevailing in the Respondent State·21
38. The Respondent State avers that the Complainant also has a remedy at her disposal
at the Labor Court, in which by urgent or normal roll she may seek an order against
the Limpopo Health Department to cease the deductions under the Basic Conditions
of Employment Act, No. 75 of 1997. 22 It is submitted in this regard that there is
precedent in the Labour Court of the Respondent State reiterating its jurisdiction over
salary deduction disputes under the Basic Conditions of Employment Act. 23
39. It is also the submission of the Respondent State that the Complainant may still
approach the Bargaining Council and lodge an Unfair Labour Practice Oispute· 24
40.According to the Respondent State, this was the position of Judge Snyman in para 51
of the Labour Court's judgment against the Complainant's Application. 25
41 . In light of the foregoing, the Respondent State submits that the Complainant has not
exhausted local
remedies and the Respondent State's legal order is b1~, Qt-I
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international remedies. 26
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19 Respondent State's Reply on Admissibility and Merits, para 20-23 (Hereinafter referr d t&aj e
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20 Respondent Sta te's Reply, para 25-26
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21 Respondent State's Reply, para 27-30
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22 Respondent State's Reply, para 35
23 Respondent State's Reply, para 36-38
24 Respondent State's Reply, para 39
25 Respondent State's Reply, para 39
26 Respondent State's Reply, para 17-23
SI Page
T he African Commi ssion on Hum an an d Peopl es'
Rights
31 Bijilo Ann ex Layout. Kombo North Di strict,
West Coast Region Gambia
Phone : (220) 230 436 1 Fax: (220) 44 1 05 04
Em ail : f!Ji-bg_lJjul@africa-union.org
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42. The Commission observes that the Respondent State does not contest any of the
other grounds for admissibility as enshrined in Article 56 of the Charter. 27
THE COMMISSION'S ANALYSIS ON ADMISSIBILITY
43 . A Communication submitted in terms of Article 55 must satisfy the seven requirements
in Article 56 of the Charter in order to be declared admissible.
44. The Commission recalls that the conditions outlined in Article 56 of the Charter are
cumulative and should all be adequately fulfilled for communication submitted in
conformity with the terms of Article 55 to be admissible. Consequently, non-fulfillment
of any one of these conditions is liable to render a communication inadmissible. 28 The
Commission now considers the submissions of the parties in light of these
requirements in seriatim.
a
Article 56( 1) of ~he Charter
45.Article 56(1) of the Charter states t~at "Communications relating to Human and
Peoples' Rights ... received by the Cpmmission shall be considered if they indicate
their authors even if the latter request anonymity .. . " The requirement here is that
complainants or authors of complaints· proffer their identity29 and
contact details30 to enable the Commission to adequately process the communication
through assurances of continued interest in the matter. 31 In the present case, the
Communication is brought by Selemabothokgo Magdeline Rachidi, who is legally
represented by one Advocate Shadreck Tebeile.The parties are adequately identified ,
the Communication duly complies with Article 56 (1) of the Charter.
Article 56 (2) of the Charter
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46 . Article 56(2) of.the Charter states that "Communications ... received by the Commission
shall be considered if they are compatible with the Charter of the Organization of
African Unity or with the present Charter." In Communication 709/19- SenatorJeanPierre Bemba G.ombo v. Democratic Republic of Congo, the Commission
interpreted Article 56(2) of the Charter to require compatibility with the Constitutive Act
of the African Union or the Charter, and with the four (4) aspects of its competence,
ACHPR
African Commission on
Human Rig hts our
Human and Peoples' Rights
Collectiv<➔ Responsibility
namely competence ratione personae, materiae, temporis and /oci. 32 Concerning the
former, the Commission notes that this Communication seeks the protection of human
rights which is one of the objectives of the Constitutive Act of the African Union,
provided for in Article 3 (h) thereof. Furthermore, nothing in the Complainants'
submissions and Complaint reveals any incompatibility with the Charter. Concerning
jurisdiction, the Commission is satisfied that the Respondent State is party to the
Charter; the Complaint alleges prima facie violations of rights protected by the Charter;
the Complaint is brought in respect of violations that occurred after [the] Respondent
State's ratification of the Charter. 33 It follows that the Complainant has satisfied Article
56(2) of the Charter.
Article ~6 _
{3) of the Chart_
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47.Article 56(3) of the Charter states that "Communications ,,.received by the
Commission shall be considered if they are not w,ritten in disparaging or insulting
language directed against the State concerned • and its institutions or to the
Organization of African Unity (AU)". In Zimbabwe Lawyers for Human Rights &
Associated Newspap~rs of Zimbabwe v Republic of Zimbabwe, the Commission
•held that "in determiQing whether a certain remark is disparaging or insulting and
whether it has dampened the integrity of the judiciary, ,the Commission has to satisfy
itself whether the said remark pr language is aimed at unlawfully and intentionally
violating the di,grilty, reputation or integ_rity of a judicial officer or body and whether it is
used in a manner calculated to pollute the minds of the public or any reasonable man
to castaspersionson and weaken public confidence on the administration of justice." 34
48. Having analyzed the submissions of the Complainant, the Commission has not come
across any language that appears to be aimed at unduly impairing the esteem of either
the Respondent State or the African Union. In light of the foregoing the Commission
finds that Article 56(3) of the Charter has been complied with.
Article 56 {4) of the Charter
71 Page
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ACHPR
African Commission on
Human Rights our
" Human and Peoples' RilJhts
Collective Responsibility
was gotten from the media, but whether the information is correct' and whether the
complainant tried to verify the truth" 35 This interpretation from Jawara was adopted
with approval in Ahmed Ismael and 528 Others v. the Arab Republic of Egypt. 36 In
the present Communication, the Complainant has presented evidence in the form of
the letter reversing her translation; the letter seeking recovery of salaries paid to her
as Professional Nurse; court documents as well as her payment records. The
Commission is of the opinion that the Complainant has not relied exclusively on news
disseminated through the mass media and thus this communication satisfies the
provision of Article 56( 4) of the Charter.
Article 56[5] of the Charter
50.Article 56(5) of the Charter states that "Communications ·re·lating to human and
Peoples' Rights .. . shall be considered if they are sent after exhausting tocal remedies,
if any, unless it is obvious that this procedure is unduly prolonged." The Commission
requires exhaustion of local remedies where they are 'available, effective and sufficient
to redress the alleged violation.' 37 An available remedy is one where 'the petitioner can
pursue it without impediment'. 38 An effective remedy will be one that 'offers a prospect
of success. '39A remedy will be sufficient'if it is capable of redressing the complaint.' 40
51. The Commission recalls that an effective remedy will be one that 'offers a prospect of
success', 41 and 'upon success, the appropriate relief is one that is capable of
adequately and timely redressingthe specific violation suffered'. 42 It should also be
noted that a prospect of success of a remedy need not be 'certainty or guarantee of a
favourable outcome for the complainant' but simply an assurance of full and fair
examination of the legal issues and arguments. 43 In determining the propensity of a
remedy.to ·Offer real prospects of success the Commission will assess the nature of
the complaint; the 'general legal and political context' of the remedies, and the
complain~nt's personal circumstances.44
52. The Complainant argues that they exhausted local remedies when they approached
the Constitutional Court which is the highest Court in the Respondent State. The
35 Communication 147 /95-149/96: Sir Dawda K. Jawara v Gambia (The), 11 May 2000, para 25 and 26.
36 Communication 467 / 14, 27 May 2016.
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Communication 147/ 95-149/ 96: Sir Dawda K. Jawara v Gambia (The), 11 May 2000, para 31. ~~ oN Hu1.i,4,..,
38 Communication 317 / 2006 - The Nubian Community in Kenya vs The Republic of Kenya, 30:~y c;w:l~ p\'@l~:1-o
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°Communication 147/ 95-149/ 96: Str Dawda K Jawara v Gambia (The), 11 May 2000, para 3f 8
4
41 Commun'.ca~on 147 /95-149/ 96: Si~ Oawda K?awara v Gambia (T~e)~11 May 2000, para j_t. %_
42 Commumcat10n 445/13- Human Rights Council and Others v. Eth10pia, 19 May 2016
43 Communication 445/13- Human Rights Council and Others v . Ethiopia, 19 May 2016
44
Communication 445/ 13- Human Rights Council and Others v. Ethiopia, 19 May 2016
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Respondent State contends that the Complainants did exhaust local remedies
because they prematurely and unsuccessfully approached the Constitutional Court
before exhausting the remedies in the lower courts, in accordance with the procedural
law of South Africa.
53. The Respondent State argues that the Complainant ought to have (i) re-enlisted her
application in High Court Case number 2628/2021 under the normal roll after it was
struck off the urgent roll; (ii) sought an order from the Labour Court for the Limpopo
Health Department to cease monthly deductions on her salary in terms of the Basic
Conditions of Employment Act; and (iii) lodged an .unfair labour practice proceedings
against the Limpopo Department of Health at the Bargaining Council.
54. The Commission will now turn to examine whether the -litigation that happened in
Labour Court case No. J1231/20; High Court case number 2628/2021; and CCT Case
134/21 exhausted local remedies.
55. The Commission notes from the judgment of the Labour Court Which found firstly that
the Complainant had no grounds for declaratory relief because she was in no imminent
risk of unilateral salary deductions given that the Limpopo Health Department had
committed to consulting with her on the modus of such deductions; 45 secondly that the
Complainant had wrongfully relied on a Constitutional Provision to challenge a matter
regulated by legislation, to the detriment of the principle of subsidiarity; 46 and thirdly
that the Court had no jurisdiction to deciqe her case given that it was a dispute between
her and her employer, lawfully governed by the Bargaining Agreement and under the
jurisdiction of the Bargaining Council; 47 and fina-11y that ought to have approached the
Bargaining Council for conciliation of the matter and in the event that it is not resolved,
refer it to arbitration. 48
56. Following the Handing down of the Labo,w Court Judgment on the 17th of November
2020, the Complainant then on the 19th of April 2021 approached the High Court by
Notice of Motion seeking urgent relief to halt the salary deductions, which application
was struck off the roll for lack of urgency on the 23 rd of April 2021. Following her Strikeout at the High Court, the Complainant the approached the Constitutional Court on an
urgent basis seeking direct access to challenge the decision of the High Court, which
application was dismissed on the 3rd of May 2021.
57. The Commission takes the view that the present Communication did not exhaust local
remedies because •it is quite clear that not only did the Complainant go on a frolic of
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her own much to the breach of the procedure of the Respondent StaJ
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46 Labour Court Case No. J1231/20, para 37-50
47 Labour Court Case No. J1231/20, para 56
48 Labour Court Case No . J1231/20, para 51-56
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58. The Commission notes firstly that the Complainant has not approached the Bargaining
Council for the settlement of her dispute through conciliation (and if unsuccessful,
arbitration) as indicated by the Labour Court but instead took her matter to the High
Court where it was promptly dismissed .
59. Secondly, the Commission recognizes that the High Court's decision to strike her
application off the urgent roll was not a final decision. As has been submitted by the
Respondent State, the Complainant could still re-enlist her matter on the normal roll.
Instead of doing that the Complainant decided to approach the Constitutional Court
where her application was dismissed for lack of merits and urgency. It is therefore
clear to the Commission as submitted by the Respondent State that the Complainant
has residual domestic remedies under the domestic legal order which are at her
disposal. The Commission takes the view that the present Communication is not
compliant with Article 56(5) as the Complainant has not exhausted local remedies.
Art_icle 5q(6) of the Charter
60. Article 56(6) of the Charter states that Communications relating to human and
Peoples' Rights ... shall be considered if they: are submitted within a reasonable period
from the time local remedies are exhausted, or from the date the Commission is seized
with the matter." The Commission notes that the present Communication has not
exhausted local remedies. Furthermore, the Commission recalls that the requirement
under Article 56(6) is for the Complainant to submit her Communication within a
reasonable time from the time local remedies were exhausted, accordingly exhaustion
is a prerequisite of submission. In addition, the Commission has previously decided
that the time of exhaustion of local remedies is the starting point for the computation
of time within which to submit the Communication to the Commission. 49 Where local
remedies have not been exhausted,there is no plausible basis from which to compute
time for submission of the ComrT')unication to the Commission or even assess
reasonableness of that time. It follows therefore that where the Complainant has not
exhausted local remedies,. it suffices to say that Article 56(6) has not been complied
with.
Article 56(7) of the Charter
61.Article 56(7) of the Charter states that "Communications relating to human and
Peoples' Rights ... shall be considered if they: do not deal with cases which have been
10 I Page
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ACHPR
African Commission on
Human and Peoples' Ri~Jhts
Human Rights our
Collective Responsib ility
settled by these states involved in accordance with the principles of the Charter of the
United Nations, or the Charter of the 25 Organization of African Unity or the provisions
of the present Charter." The rule is based on the non bis in idem and res judicata
rules. 50 The Commission has previously found in Luke Munyandu Tembani and
Benjamin John Freeth (represented by Norman Tjombe) v Angola and Thirteen
Others that the provision requires that a case" no longer be under consideration under
an international dispute-settlement procedure" 51 Further, that the other international
body must have decided the case on the merits and there is a 'final settlement' by that
body. 52 The settlement must, as the Commission has.previously stated, a human-right
adjudicatory body. 53 In the present case, there is no eVidence to suggest that this
matter was settled by another international adjudicatory body. It thus complies with
sub-Article 7 of the Charter.
THE COMMISSION'S DECISION ON ADMISSIBILITY
62. The Commission finds that: .
A. The present Communicatiom does not comply with Article ·56(5) and 56(6) of the
Charter;
B. The Communication is declared inadmissible.
Done at the 83 rd Ordinary Session .of'.the Commission held in Banjul, The Gambia
from the 2nd to the 22 nd of May 2025
°Communica tion 260/ 02 - Bakweri Land Claims Committee v Cameroon, 4 December 2004, .,
5
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Communication 409/ 12, 30 April 2014, para 112.
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52 Communication 260/02 - Bakweri Land Claims Committee v Cameroon, 4 Dec 2004, par1~ 11.n
3.. . .
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53 Communication 279/03-296/ 05 - Sudan Human Rights Organisation & Centre on JiQusin Ri~ )nd
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Evictions (COHRE) v Sudan, 27 May 2009, para 103.
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