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COM MUNICATION 783/22
1
Johannes Moko(represented
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The Republic of South Africa
..4dopted by the
4frlcan Co,,unmion on Hu:man and Peopla' RJgJ,18
During• ar Ordbtary So6lon held 1n Ba,,jl,l;o,,, Z"" 1o 22"" May 202J,
Banjul, The Gambia
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Hon. Ci ,-~,-.sro
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The African Commission on Human and Peoples' Rights
31 Bijilo Amex Layout, Kornbo North Oislrict, West. Coast Region
Phone: (220) 230 4361 Fax: (220) 441 05 04
Email: au-banjul@africanunion.org
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Human Rights our
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Decision of the African Commission on Human
and Peoples' Rights on Admissibility
Communication 783/22 Johannes Moko and The
Republic of South Africa
Summary of the Complaint:
1. The Secretariat of the African Commission on Human and Peoples' Rights (the
Secretariat) received the Complaint on the 16th of February 2022.
2. The Parties in this Communication are .as follows: The Complainant is Johannes Moko,
a 23-year-old male South f;.frican Nar ). The Respondent State is the Republic of
South Africa.
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3. The Complainantalleges tha . : 20Noven1&f;lfof020,' the Acting Principal of his then
school, Malusi Secondary School, prevented'· htn:1 from sitting the Business Study
Paper 2 examination on the grounds that he had not attended certain extra classes.
He was requested to return to the school accompanied by a parent or guardian to
discuss the matter of the alleged truancy.
4. The Complainant alleges that he was unable to locate his grandmother and his sister
was far away and unable to attend to his school, he therefore returned alone later that
day, finding the Exam already underway. The Acting Principal, he alleges, refused him
entry into the examination room thus preventing him from taking his Business Studies
Paper 2 examination on the scheduled 25 November 2020.
5. It is alleged that on the 26th of November 2020, the Complainant returned to the
school accompanied by his uncle and one Mr. Moshuhla where the Acting Principal
informed them that the Complainant would have to sit for the supplementary
examination in May 2021 .
6. The Complainant alleges that on the 27th of November 2020, he escalated the matter
to the Member of the Executive Council for Education in Limpopo Province where he
was informed by the District Director that he would only be able to sit for the
examination in May 2021 .
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7. The Complainant approached the High Court for an order that
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his Business Studies Paper before the examination period
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was struck off the role for lack of urgency.
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28. On the 16th of May 2024, the Respondent State wrote the Secretariat requesting for
an oral hearing to explain their insistence on only submitting on the merits after the
Commission has rendered a decision on the merits.
29. The Secretariat wrote back the Complainants informing them that the Commisison had
decided against an oral hearing for their Communication.
PRAYERS
30. The Complainant has requested the Commission for the following remedies:A. That it is declared that the ResJlPi}dent violated the Complainant's rights under
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Articles 1, 16(1) and 16(2) of the ''African Charter on Human and People's Rights
("the Charter'?.
B. That the Respondent is ordered to pay compensation in the amount of $300 000
(Three Hundred Thousand US Dollars) to the Complainant within six (6) months
from the date of this Order.
C. Further order$ as.the Commission deems fit to gra,fJJ in the circumstances.
ADMISSIBILITY
THE SUBMISSIONS FROM THE COMPLAINANT ON ADMISSIBILITY
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31. The Complainant submits that this Communication should be declared admissible as
it meets all the requirements in Article 56 of the Charter. He argues that the
Communication is compliant with Article 56(1) as it discloses the identity of the
Complainant. 2
32. Regarding Article 56(2) of the Charter, the Complainant avers that the Communication
is compliant with the Constitutive Act of the African Union (AU) and the Charter as it
raises human rights which fall within the Charter. 3
33. The Complainant submits that the violations in the present Communication and the
allegations therein do not contain disparaging or insulting language and thus satisfy
the requirements of Article 56(3) of the Charter.4
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34. Regarding conformity with Article 56( 4) of the Charter, the C ~ ~htt46nt ,.,
the allegations presented in the present Communicatio 'fr.e
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2 Complainant's Observations on Adm issibility and Merits, para 6 &7.
3 Complainant's Observations on Admissibility and Merits, para 8 & 9
4 Complainants Observation on Admissibility and Merits, para 10 & 11
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disseminated on mass media but rather on actual facts and decisions taken by the
Respondent State. 5
35. The Complainant avers that the present Communication has exhausted local remedies
as the matter of the counselling services was litigated first in the High Court in the
case of Johannes Mako v Acting Principal of Malusi Secondary School: Mr.
Mokgonyana and 4 other, Case No:7515/2020, all the way to the Constitutional
Court, the apex court of the Respondent State, in Johannes Mako v Acting Principal
of Malusi Secondary School: Mr. Mokgonyana and 4 other, CCT 297/20 thus
complying with Article 56(5) of the Charter. 6
36. Concerning compliance with Article 56(6) of the Char.tar, the Complainant submits that
the Communication was filed on 12th April 20~1, 4 mQnths after the delivery of the
Constitutional Court Judgement on 28th Decemb~r 2020 despite being received by the
Secretariat on the 16th of February 2022. 7 He insi.sts that the Communication was
submitted on the 12th of April 2021 and that even if it was only received by the
Secretariat on the 16th of February 2022, the 14-month duration between when he
exhausted local remedies and when he filed the Communication is a reasonable time. 8
37. The Complainant also argues that the Complaint was also transmitted to the
Secretariat via Courrier, but the proof was misplaced.
38. The Complainant submits .that the present Communication meets the requirement of
Article 56(7) of the Charter
it ha~ ·n~t ·peen settled in accordance with the Charter
of the United Nations (UN), tne-~qos,~tutive Act of the AU, the provisions of the Charter
or any legal instrument of the African Union .
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THE SUBMISSIONS OF THE RESPONDENT STATE ON ADMISSIBILITY
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39. The Respondent State submits that the present Communication is inadmissible as it
was fileci' before exhaustion of local remedies and not filed within a reasonable time. 9
40. Regarding the forrrier of the two, the Respondent State avers that the Constitutional
Court of South of South Africa only decided on the alleged violation of the
Complainant's right to education under s29(1 )(a) of the South African Constitution and
accordingly the matter of the Counselling session has not exhausted local remedies. 10
41. The Respondent State avers that it has available domestic remedies which the
Complainant has riot used in the present case. The Respondents indicates that the
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Complainant could have still approached the Registrar of the Constitutio
requested that the undertaking of the Respondent State autho •c,' ~C,~
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6 Complainant's Observations on Admissibility and Merits, para 13-22
7 Complainants Observations on Admissibility and Merits, para 23-27
8 Complainant's Observation on Admissibility and Merits, Para 25 -27
9 Respondent State's Observations on Adm issibility and Merits, Page 5-21
10 Respondent State's Observations on Admissibility and Merits, para 16 -31
11 Respondent State's Observ~tions on Admissibility and Merits, para 32-39
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42. It is also the contention of the Respondent State that the Complainant's prayer for
compensation to the tune of $300 000.00 is a different substantive claim than that
brought before the Courts of South Africa in which no monetary compensation was
sought. It is argued by the Respondent that this amounts to a delictual claim which
should have been filed in the courts of South Africa. 12
43. The Respondent State further emphasises that international enforcement
mechanisms must be a last resort. 13 They submit that the remedies in South Africa are
available, effective, and sufficient and this they argue is proven by the Bill of rights in
the South African Constitution which guarantees access to the courts; an effective
judiciary capable of providing a remedy. 14
44. Furthermore, the Respondent State contends that the present Communication does
not comply with Article 56(6) of the Charter as it was not sent within a Reasonable
time. Relying on the findings in Majuru v Zimbabwe (2008) 15 it is submitted that the
Commission has found a period of six (6) months to be a reasonable time to submit
one's complaint from the time of exhaustion of local remedies.
45. The Respondent State avers that the Compla_
l'nant has sought to mislead the
Commission by on the correct dates for when the Constitutional Court of South Africa
handed down its judgment and when the Complaint was filed at the Secretariat. The
understanding of the Respondent State is that the Constitutional Court handed down
their judgment on the 28th of December 2020 and the Complaint was filed on the 16th
of February 2022. The Respondent State also rejects the contention that the
Complaint was also couriered to the Secretariat in the absence of evidence, they insist
that such evidence is easily accessible from the Courrier service. In addition, the
Respondent State ~ubmits that the computation of the reasonable time period is not
concerned with whe~':tbe Complaint was received but rather when it was seized.
46. The contention of thel~.espondent State therefore is that the Commission should reject
the Communication as it does not conform with Article 56(6).
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THE COMMISSION'S ANALYSIS ON ADMISSIBILITY
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47.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.
48. The Commission recalls that the conditions outlined in Article 56 of the Charter are
cumulative and should all be adequately fulfilled for a commun·
conformity with the terms of Article 55 to be admissible. Conse
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12 Respondent State's Observations on Admissibility and Merits, para 32 - 50
13 Respondent State's Observations on Admissibil ity and Merits, para 51-55
14 Respondent State's Observations on Admissibility and Merits, para 57-62
15 AHRLR 146 (ACHPR)
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of any one of these conditions is liable to render a communication inadmissible. 16 The
Commission now considers the submissions of the parties in light of these
requirements seriatim.
Article 56(1) of the Charter
49. Article 56(1) of the Charter states that "Communications relating to Human and
Peoples' Rights ... received by the Commission 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 identity17 and
contact details18 to enable the Commission to adequately process the communication
through assurances of continued interest in the matter. 19 In the present case, the
Communication is brought by Johannes rv,oko, who is represented by one Shadrack
Tebeile. The parties are adequately identified, the Communication duly complies with
Article 56 (1) of the Charter.
Article 56 (2) of the Charter
50. Article 56(2) of the Charter states that "Communications ... received by the Commission
shall be considered .;j( they are compatible with the Charter of the Organization of
African UnityorwiththepresentCharter." In Communl~ation 709/19-SenatorJeanPierre Bemba Gombo 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,
namety; competence ratione personae, materiae, temporis and loci. 2 Concerning the
former, 'tne 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 Art,IOJ(;) 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; 21 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. 22 It follows that the ~~ffffi~~
have
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satisfied Article 56(2) of the Charter.
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Communication 308/05 : Michael Majuru v Zimbabwe, 24 November 2008, para 71.
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Communication 70/92_9: lbrahima Dioumessi, Sekou Kande, Ousmane Kaba v Guinea, 7 .....~o~ · - ~ <i'
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Communication 277 /2003-Spilg and Mack & Ditshwanelo (on behalf of Lehlohonolo Bern . ~~8tdt~\C~~~
October 2013, para 97.
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22
Communication 266/03, 27 May 2009, para 71
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Article 56 (3) of the Charter
51.Article 56(3) of the Charter states that "Communications ... received by the
Commission shall be considered if they are not written 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 Newspapers of Zimbabwe v Republic of Zimbabwe, the Commission
held that "in determining whether a certain remark is disparaging or insulting and
whether it has dampened the integrity of the judiciary, the Commission has to satisfy
itself whether the said remark or language is aimed at unlawfully and intentionally
violating the dignity, reputation or integrity of a judicial officer or body and whether it is
used in a manner calculated to pollute the minds oft.he public or any reasonable man
to cast aspersions on and weaken public confidence onttie admlnistration of justice."23
52. Having analyzed the submissions of the Complainants, 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
53. Article 56( 4) of the Charter states that "Communications relating to human and
Peopl~s• Rights... shall be considered ,:if they are not based exclusively on news
disseminated through the mass media".· In shedding more light to this provision, the
Commission averred that "the issue therefore should not be whether the information
was gotten frb"rr(th_e media, but whether the information is correct' and whether the
complainant tried' to verify the truth"24 This interpretation from Jawara was adopted
with approval in Ahmedlsm~el and 528 Others v. the Arab Republic of Egypt. 25 In
the present Communication, the Complainants have presented evidence in the form
of court docum~nts. The Commission is of the opinion that the Complainants have 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
The African Commission on Human and Peoples' Rights
31 Bijilo Annex Layout. Kombe North District,
West Coast Region Gambia
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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.'26 An available remedy is one where 'the petitioner can
pursue it without impediment' .27 An effective remedy will be one that 'offers a prospect
of success.' 28A remedy will be sufficient 'if it is capable of redressing the complaint.' 29
55. The Commission recalls that an effective remedy will be one that 'offers a prospect of
success',30 and 'upon success, the appropriate relief is one that is capable of
adequately and timely redressing the specific violation suffered'. 31 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. 32 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
complainant's personal circumstances. 33
56. The Complainants argue that they exhausted local remedies when they approached
the Constitutional Court which is the highest Court in the Respondent State. The
Respondent State contends that the Complainants did exhaust local remedies
because the matter ot,,Counselling services for the Complainant and the claim for
monetary compensation was never deliberated on by the Courts of the Respondent
State. Further, that the Complainant still had to approach the Registry of the
Constitutional Court for a court order on the undertaking of the Limpopo Department
of Education and Ministry of Education to fund the Complainant's Counselling
services.
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57. The Commission will now turn to examine the litigation that happened in High Court
case No: 7515/2020 and Constitutional Court case of CCT297/20. The Commission
notes that the in the Respondent State's Courts, the Complainant alleged a violation
of the right to education due to being prevented from taking his examination and
prayed for a timely re-sit, as well as for the Respondent State to carry the costs of his
counselling services. In the present Communication, the Complainant alleges a
violation of his rights to attain the best possible state of physical a•ri~rm'enfal health
26
Communication 147/95-149/96: Sir Dawda K. Jawara v Gambia (The), 11 May 2000, para 31.
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28
Communication 147/95-149/96: Sir Dawda K. Jawara v Gambia (The), 11 May 2000, para .l ' c;,
29
Commun ication 147/95-149/96: Sir Oawda K. Jawara v Gambia (The), 11 May 2000, para :[\
3
Communication 147/95-149/96: Sir Dawda K. Jawara v Gambia (The), 11 May 2000, par
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due to the Respondent State not providing him with Counselling services and claims
$300 000.00 as compensation.
58. The Commission notes that while connected , these are two remarkably different
cases. The question of whether or not the Respondent State violated the
Complainant's right to attain the best physical and mental healthcare for want of
undelivered counselling services, as well as the monetary claim is a matter that has
not been litigated before the Courts of the Respondent State. The Commission notes
and recalls its jurisprudence in Human Rights Council and Others v Ethiopia 34 that
for domestic remedies to be exhausted, the domestic remedy must address all aspects
of the individual's claim before the Commission . Therefore, issues pleaded before the
Commission must be the same issues pleaded before the Commission . The
Commission therefore takes the view that the present case, the alleged violation of the
right to health for failure to provide counselling services to the Complainant has not
been considered by the Courts of the Respondent State and accordingly has not
.exhausted any local remedies.
59. The Complainant has also not contested the availability, effectiveness, and adequacy
of the domestic remedies of the Respondent State. Furthermore, there has been no
evidence of undue prolongation of domestic remedies, in fact the Commission notes
the brevity of the processing times for both cases litigated by the Complainant in the
High Court and Constitutional Court of the Respondent State. It was therefore
incumbent on the Complainant to exhaust local remedies.
60. The Commission takes the opinion that the Complainants have not exhausted local
remedies as the present Complaint has been presented to the Commission as a court
of first instance.
61.Article 56(6) ot1he 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 where a Communication ha •not
exhausted local remedies it follows that Article 56(6) is automatically not satisfied. In
any event the Commission notes that the Complaint contrary to the averments of the
Complainant was filed via email by his counsel on the 16th of February 2022 which
was 14 months following the handing down of the Constitutional_u~~~lQment on
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the 28th of December 2020. The Complainant has not prov·
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this significantly lengthy delay, rather the Complainant h ~i ou"-'
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facts by insisting his complaint was received earlier than it was. In the absence of
justifiable circumstances explaining the delay, the Commission considers that the
present communication was not filed within a reasonable time from the exhaustion of
remedies.
Article 56(7) of the Charter
62.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
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. 35 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"36 Further, that the other international
body must have decided the case on the merits and there is a 'final settlement' by that
body. 37 The settlem~nt must, as the Commission has previously stated, a human-right
adjudicatory body. 38 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.
COMMISSION'S DECISION ON ADMISSIBILITY
63. In view of the above the Commission decides the following:
a. The Communication does not satisfy the requirements of Article 56(5);
b. The Communication_~foes not satisfy the requirements of Article 56(6);
c. The Communication i$declared inadmissible.
Done at the 82 nd Ordinary Session of the Commission held in Banjul, The Gambia from
the 25 th of February to the 11 th 0 ' March 2025
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Communication 260/02 : Bakweri Land Claims Committee v Cameroon, 4 Decem
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Communication 409/12, 30 April 2014, para 112.
37
Communication 260/02 : Bakweri Land Claims Committee v Cameroon, 4 Dec 20
38
Communication 279/03-296/05 : Sudan Human Rights Organisation & Centre on
v Sudan, 27 May 2009, para 103.
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111 Page
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