Human Rights our
Collective Responsibility
DECISION OF THE AFRICAN COMMISSION ON HUMAN
AND PEOPLES' RIGHTS ON MERITS
Communication 747/21 Jacobus Stephanus Van Heerden & Anor v
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 23rd September 2019.
2. The Parties in this Communication are as follows: The 1st Complainant is
Jacobus Stephanus Yan Heerden, a male South African National and the sole
Shareholder and Director of Amour Technology Systems (Pty) Ltd (ATS), a
Company registered in South Africa which is the 2nd Complainant. The 3 rd
Complainant is Liberty Fighters Network, a Voluntary Association in South
Africa and the Representative of the 1st and 2nd Complainants. The Complainant
indicated in their Observations on. Admissibility & Merits that the 3rd
Complainant is the Representative of the first two Complainants and does not
have an interest in the matter.
3. The Complaint presented against the Republic of South Africa (the Respondent
State) is in respect of the decision of the High Court of South Africa in Case
Number 31884/2015, which was subsequently appealed and upheld by the
Supreme Court of Appeal in matters bearing numbers SCA 354/19, and the
Constitutional Court in CCT162/19. (Herewith would worth-the-while to
indicate the parties to these matters)
4. The Complainants allege that the Respondent State's Courts issued adverse
rulings against them because they were self-actors.
5. They further allege that the Courts in the Respondent State never gave reasons
for their rulings but simply issued arbitrary and prejudicial orders.
6. The matter arose from a business dispute between 2nd Complainant and DCDGroup Limited (Pty) (DCD). The former referred the dispute to arbitration on
the 13th December 2013 but withdrew this reference on the 3 rd Jul
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7. On the 2nd September 2014, DCD submitted the same dispute to the arbitration
and ATS participated in those proceedings. After ATS failed to pay its share of
the arbitration fees, on 5th March 2015, DCD informed ATS that the arbitration
had lapsed. The Arbitrator indicated that they would be bound by a court order.
8. DCD presented this dispute to the High Court culminating in Case number
31884/2015. The application was set down for a hearing in December 2015.
However, at the hearing, Judge Tolmay refused for the 1st Complainant Mr. Van
Heerden to represent the 2nd Complaint, and ordered the latter to file an
application for legal aid.
9. This culminated in the set down of 3 Applications which were all heard and
decided by Judge Niewenhuizen, being the Representation, Main and Joinder
Applications.
10. The Representation Application was heard first and dismissed. In this
Application, the First Complainant sought Legal Aid for the 2nd Complainant
following the Judge's refusal for the former Complainant would therefore not
be represented in the Main Application.
11. The Main Application was heard next, here the Court sought to determine
whether the Arbitration instituted by DCD had lapsed by way of the 2nd
Complainant failing to pay their portion of the Arbitration Fees. The Court
upheld DCD' s plea that the Arbitration had lapsed and ordered the 2nd
Complainant to pay Costs. The Court also decided that an order in terms of a
notice of motion would follow.
12. On the Joinder Application, DCD sought to join the 1st Complainant, Mr. Van
Heerden to the Main Application to pay Costs for the 2nd Complainant in his
capacity as sole sponsor of the 2nd Complainant's litigation in the matter. The
Court upheld DCD' s relief and joined Mr. Van Heerden to the Main Application
so as to enforce the cost order made against 2nd Complainant in his name.
13. The Complainants filed a complaint against the Judge Janse Van Niewenhuizen
before the Judicial Services Commission (JSC) on the grounds that she was
biased and did not decide their matter with independence and Impartiality.The
Complaint was dismissed by the Tribunal of the JSC. The Complainants filed
an appeal against that dismissal which was also dismissed. The JSC took the
view that the Complaint by the Complainants concerned the merits of their
High Court Case Number 31884/2015 and was best dealt with judicially via
appeal of the decision itself in the superior courts.
14. Following their dismissal in the JSC, the Complainants then followed the T~ =!c==:::::-......
guidance and appealed Judge Niewenhuizen' s decision. The Co
filed an application for leave to appeal the decision of the High C
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Supreme Court of Appeal, being the aforementioned SCA 354/19. On the 30th
May 2019, the Supreme Court of Appeal dismissed the application on the
grounds that it had " no prospect of success in an appeal and there is no other
compelling reason why an appeal should be heard".
15. The Complainant then approached the Constitutional Court on an urgent basis
under CCT162/19 seeking to appeal the decision of the High Court on the 3
applications. The Constitutional Court dismissed the application on the
grounds that it was not urgent; it did not engage the Court's jurisdiction and
bore no prospects of success.
16. The Complainants allege that their experience is part of a larger scale of judicial
corruption in which the courts treat self-representing litigants unfairly. They
allege that as a result of this judicial maltreatment, they have suffered financial
losses and have had their rights violated.
ARTICLES ALLEGED TO HAVE BEEN VIOLATED
17. The Complainants submit that the Respondent State has violated Articles 2, 3,
5, 7, 9, 13, 19, 20, and 26 of the African Charter on Human and Peoples' Rights
(the Charter).
PROCEDURE
18. The.Complaint was seized by the Working Group on Communications under
the 2010 Rules of Procedure of the Commission at the 33rd Extraordinary Session
held in The Gambia between the 12th and 19th July 2021;
19. On the 15 th December 2021, the Secretariat informed the Respondent State of
the seizure of this matter and transmitted the Complaint and seizure decision
to the Respondent State;
20. On the 17th October 2022, the Complainants submitted their observations on
Admissibility and Merits of the Communication;
21. The Complainant's observations on Admissibility and Merits were on the 18th
October 2022 transmitted to the Respondent State
22. The Secretariat of the African Commission on Human and Peoples' Rights (the
Commission) wrote the Respondent State repeatedly throughout 2022
requesting their submission of the Observations on Admissibility and Merits,
to no avail
23. On the 7th of June 2023, the Secretaria
~---Complainants'
submissions to the Respondent State;
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24. Following the 77th Ordinary Session, the Secretariat wrote the Respondent State
again to submit its observations on Admissibility and Merits;
25. The Respondent State wrote the Secretariat requesting for an extension of 30
days to submit its observations on Admissibility and Merits
26. On the 8th February 2024, by Note Verbale ACHPR/COM/747.21/135/2024,
the Secretariat informed the Respondent State of the Commission's decision to
grant an extension of 30 days for the Respondent State to file its Observations
on Admissibility and Merits;
27. On the 8th March 2024, the Respondent State submitted its observations on the
Admissibility and Merits of the Communication.
28. On the 8 th March 2024, the Respondent State's submissions were transmitted to
the Complainants
29. On Monday the 15th April 2024, the Secretariat received a Rejoinder of the
Complainants and the same was transmitted to the Respondent State on the 15th
April 2024.
30. On the 26 th of June 2024, the Secretariat wrote to the parties to request further
information regarding the situation fiving rise to the alleged violations in
accordance with Rule 116(4) of the 2020 Rules of Procedure.
31. On the 26th of June 2024, we received the Complainants' additional submissions.
The same was acknowledged on the same day.
32. By Note Verbale ACHPR/COM/747.21/736/2024, the Secretariat reminded
the Respondent State of its request for information transmitted on the 26 th of
June 2024.
33. On
the
8th
of
August
2024,
by
Note
Verbale
ADD18/2/ AU/ ACHPR/2/8/8/24/7109, the Respondent State transmitted its
additional submissions request by the Secretariat. The Secretariat
acknowledged receiptof the submissions.
PRAYERS
34. The Complainants have requested the Commission for the following remedies:l.
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ii.
In the alternative and addition to paragraph 8.1 supra, that the Constitutional
Court set aside the order made under case number CCT162/2.019 and to enroll the
matter for a proper hearing with oral arguments by those parties;
iii.
In the further alternative to paragraphs 8.1 and 8.2 supra, that either the
Commission or as a referral to the African Court hears the matter under
CCT162/2.019 as an institution, or Court, of Appeal in relation to human rights
violations as prohibited by the Charter;
iv.
That it be declared that the State Partt; violated the human and peoples' rights of
the main Complainants, and those represented In; LFN as its members, by utilizing
practices in the SCA and Constitutional Court of the State ParhJ to selectively
choose cases to proceed with hearings before them and to arbitrarily dismiss cases
having constitutional and human rights merits;
ADMISSIBILITY
THE SUBMISSIONS FROM THE COMPLAINANT ON ADMISSIBILITY
35. The Complainants submit that they have adhered to all the conditions set out
in Article 56 of the Charter on Admissibility. They submit that their
Communication indicates the authors; is compatible with the Charter; is not
written in disparaging or insulting language directed against the State Party
and its institutions or to the AU; Is based on actual events experienced by the
Complainants and not based on news disseminated through the mass media;
has been sent after exhausting local remedies at the Constitutional Court; has
been submitted within a reasonable period of only two (2) months from the time
the Constitutional Court judgment was delivered and does not deal with any
matter which has been settled by t<he State Party.1
36. The Complainants extensively argued that by being dismissed at the
Constitutional Court, they exhausted all remedies and that any other alternative
remedy suggested would not be effective. 2
THE SUBMISSIONS OF THE RESPONDENT STATE ON ADMISSIBILITY
1 Complainants' Observations on Admissibility & Merits, para 15
2
Complainants' Observations on Admissibility & Merits, para 16-20
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37. The Respondent State submits that the Complainants have not exhausted local
remedies because the decision of the JSC was never appealed at the High Court
but rather sent straight to the Supreme Court of Appeal.3
38. The Respondent State further postulates that the alleged denial of Legal
Representation for the 2nd Complainant was not a denial of justice but rather inline with established legal practice in the Republic of South Africa which
confers the power of legal representation exclusively to Legal Practitioners
within the Legal Practitioners Act (No. 28 of 2014).4 The Respondent State
submits that there is no record of the 1st Complainant being a Legal Practitioner
in terms of the Act. They further aver that Legal Aid provided by the
Respondent State is only in respect of Criminal matters and not civil disputes. 5
39. The Respondent State also made additional submissions on the lack of
exhaustion of local remedies, reiterating that the rule requires that the
Complainants approach the international forum as a last resort and not a court
of first instance. They cited Nyikadzino (Represented by the Zimbabwe NGO
Forum) v Zimbabwe6 to argue that the aforementioned principle of
complementarity would be contravened if the Commission usurped South
Africa's role to adjudicate matters on the merits in terms of South African Law.7
40. The Respondent State further submits that the local remedies in South Africa
were available, effective and sufficient and therefore the Complainants had an
obligation to exhaust them. 8 They argue that the remedies were available and
this is trite as the South African Constitution and democratic system is
celebrated the world over. They emphasize that their Bill of rights in Article 31
provides for the right to seek remedy from competent judicial organs, which
judicial organs they state provide for a robust system of adjudication and
appeal. 9
41. The Respondent State submits that its remedies are effective and sufficient as
they are independent and impartial, citing the Commission's decision in
Gabriel Shumba v Zimbabwe. 10 They propound in addition that the remedies
3
Respondent State's Observations on Admissibility & Merits, para 9-12
Respondent State's Observations on Admissibility & Merits, para 16
5
Respondent State's Observations on Admissibility & Merits, para 17
6
Communication 340/07
7
Respondent State's Observations on Admissibility & M erits, para 22-24
8
Respondent State's Observations on Admissibility & Merits, para 25
9
Respondent State's Observations on Admissibility & Merits, para 27-29
10
Respondent State's Observations on Admissibility & Merits, para 30-33
4
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in the Republic of South Africa have not been unduly prolonged. They submit
that any delays in the present case would have been a result of the
Complainants failing to observe South African procedural Law. 11
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.12
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 a 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. 13 The Commission now considers the
submissions of the parties in light of these requirements seriatim.
Article 56(1) of the Charter
45. 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 identity14 and
contact details 15 to enable the Commission to adequately process the
communication through assurances of continued interest in the matter. 16 In the
present case, the Communication is brought by Jacobus Stephanus Van
Heerden and Amour Technology Systems (Pty) Ltd (The Complainants).
Liberty Fighters Network, represented by one Mr. Reyno De Beer are the
Representatives. The Commission notes that there was a misunderstanding
11 Respondent State's Observations on Admissibility & Merits, para 34-35
12 Respondent State's Observations on Admissibi lity & Merits, para 36-39
13 Communication 304/2005 - FIDH & Others v Senegal {2006) ACHPR para 38
14 Communication 308/05 : Michael Majuru v Zimbabwe, 24 November 2008, para 71.
15 Communication 70/92_9: lbrahima Dioumessi, Sekou Kande, Ousmane Kaba v Guinea, 7 October 1~~~~
11.
16 Communication
277/2003-Spilg and Mack & Ditshwanelo (on behalf of Lehlohonolo Be
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Botswana, 12 October 2013, para 97.
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about whether or .n ot the Liberty Fighters Network was a party to these
proceedings or merely a representative, which misunderstanding has been
cleared out by the Complainants' observations17. The records and the
Secretariat's correspondence will according!y reflect this clarification. The
parties are adequately identified, the Communication duly complies with
Article 56 (1) of the Charter.
Art icle 56 (2) of the Cha rter
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 - Senator Jean-Pierre 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, namely competence ratione personae, materiae,
temporis and loci.18 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.19 It follows that the
Complainants have satisfied Article 56(2) of the Charter.
Article 56 (3) of the Cha rter
47. 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
-----is disparaging
17 Complainants' Observations on Admissibility & Merits, page 4, p
18
Para 26-29
cc,
19 Communication 266/03, 27 May 2009, para 71
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or insulting and whether it has dampened the integrity of the judiciary, the
Commission has to satisfy itself whether the said remark or language is aimed
at unlawfully and intentionally violating the dignity, reputation or integrity of
a judicial officer or body and whether it is used in a manner calculated to pollute
the minds of the public or any reasonable man to cast aspersions on and weaken
public confidence on the administration of justice." 20
48. 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
49. Article 56(4) of the Charter states that "Communications relating to human and
Peoples' 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 from the media, but whether the
information is correct' and whether the complainant tried to verify the truth" 21
This interpretc,ltion from Jawara was adopted with approval in Ahmed Ismael
and 528 Others v. the Arab Republic of Egypt. 22 In the present Communication,
the Complainants have presented evidence in the form of court documents. 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
50. Article 56(5) of the Charter states that "Communications relating to human and
Peoples' Rights ... shall be considered if they are sent after exhausting local
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.' 23 An
°Communication 284/03, 3 April 2009, para 91.
2
21 Communication 147/95-149/96: Sir Dawda K. Jawara v Ga mbia (The), 11 May 2000,
22 Communication 467 /14, 27 M ay 2016.
23 Communication 147/95-149/96: Sir Dawda K. Jawa ra v Gambia (The), 11 M ay 2000,
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available remedy is one where 'the petitioner can pursue it without
impediment'. 24 An effective remedy will be one that 'offers a prospect of
success.' 25A remedy will be sufficient 'if it is capable of redressing the
complaint.' 26
51. The Commission recalls that an effective remedy will be one that 'offers a
prospect of success', 27 and 'upon success, the appropriate relief is one that is
capable of adequately and timely redressing the specific violation suffered' .28 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. 29 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.30
52. 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 they did not file their appeal against the
decision of the JSC in the High Court but rather approached the Supreme Court
of Appeal and then subsequently, the High Court.
53. It is prudent here for the Commission to clarify a misunderstanding of the facts
that has occurred between the parties. It appears that the Respondent State is of
the impression that the dispute here arises from the JSC decision and not the
High Court decision on the three applications. The Commission is of the view
that the principal dispute arises from the High Court decision and the litigation
that ensued from that point rightly commenced with an application for leave to
appeal in the High Court.
24
Communication 317 / 2006 - The Nubian Community in Kenya vs The Republic of Kenya, 30 May 2016, para
55.
25
Communication 147/95-149/96: Sir Dawda K. Jawara v Gambia (The), 11 May 2000, para 31.
26
Communication 147/95-149/96: Sir Dawda K. Jawara v Gambia (The), 11 May 200
;i...t:li::::===:::::-...
27
Communication 147/95-149/96: Sir Dawda K. Jawara v Gambia (The), 11 May 2
28
Communication 445/13- Human Rights Council and Others v. Ethiopia, 19 May 2
29
Communication 445/ 13- Human Rights Council and Others v. Ethiopia, 19 May 2
3
Communication 445/ 13- Human Rights Council and Others v. Ethiopia, 19 May 2
°
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54. The Commission will now turn to examine whether the litigation that happened
in High Court case file 31884/ 2015, in the Supreme Court case of SCA 354/19
and Constitutional Court case of CCT162/19, and which is the source of this
Communication is indicative of the fact that local remedies had been exhausted.
55. The Commission notes that the Complainants filed an application for leave to
appeal at the Constitutional Court, being the highest Court in the Respondent
State. The Commission further notes that this application was dismissed on
substantive grounds, which is that it did not bear any prospects of success, in
addition to the other two grounds of lack of urgency and jurisdiction. The
dismissal of an application for leave to appeal on the grounds that it bears no
prospects of success is peremptory, it has the effect of extinguishing the claim
and bringing finality to the procedure. The Commission takes the opinion that
the Complainants exhausted local remedies.
Article 56(6) of the Charter
56. 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 Complainants in this case received
judgment from the Constitutional Court on the 29 th July 2019 and their
Complaint was received by the Secretariat on the 23 rd September 2019. The
Commission considers this to be a reasonable time and finds that the
Communication complies with Article 56(6) of the Charter.
Article 56(7) of the Charter
57. 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. 31 The Commission has previously found in Luke
Munyandu Tembani and Benjamin John Freeth (represented
Tjombe) v Angola and Thirteen Others that the provision requir
31
Communication 260/02 : Bakweri Land Claims Committee v Cameroon, 4 December 2004,
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no longer be under consideration under an international dispute-settlement
procedure" 32 Further, that the other international body must have decided the
case on the merits and there is a 'final settlement' by that body. 33 The settlement
must, as the Commission has previously stated, a human-right adjudicatory
body.34 In the present case, there is no evidence to suggest that this matter was
settled by another international adjudicatory body. It thus complies with subArticle 7 of the Charter.
COMMISSION'S DECISION ON ADMISSIBILITY
58. In view of the foregoing, the Commission declares the present Communication
admissible in accordance with Article 56 of the African Charter and
consequently as the parties have already made their submissions on the merits
the Commission will proceed to consider the merits and render its decision
thereon in due course.
MERITS
THE SUBMISSIONS OF THE COMPLAINANTS ON THE MERITS
59. It is the view of the Complainants that the Respondent State's Constitutional
Court, as the highest court or institution of appeal in the State Party failed to
adequately and reasonably address their case which violates their rights under
the Charter. 35 The Complainants argue that their rights were violated by the
Respondent State by virtue of the Courts:
(i)
Failing to consider that the main Complainants were self represented lay litigants
and that their case should have been
constnted generously and in the light most
favorable to the litigant";
Adjudicating the matter on a mere procedural technicalihJ, to wit "urgency";
Failing to have considered that the matter should proceed on a normal basis if
urgenet; is not established;
Failing to adjudicate the constitutional questions and referencing them in the
judgment;
11
•••
(ii)
(iii)
(iv)
32
Communication 409/12, 30 April 2014, para 112.
Communication 260/ 02 : Bakweri Land Claims Committee v Cameroon, 4 Dec 2004, par
34
Communication 279/03-296/05 : Sudan Human Rights Organisation & Centre on Hou
(COHRE) v Sudan, 27 May 2009, para 103.
35 Complainants' heads of arguments on t he admissibility and merits (2022) Para 21
33
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Failing to adjudicate the additional points and referencing them in the judgment;
Failing to have requested the record before the SCA before making its judgment as
the main Complainants kindly have requested it to do;
Failing to provide adequate reasons for its judgment. 36
60. It is alleged that by barring the 2nd Complainant to represent the 1st
Complainant; by rejecting the 2nd Complainant's application for legal
representation in High Court Case Number 31884/2015; by joining the 1st
Complainant to the financial obligations of the 2nd Complainant in the
proceedings before the High Court in Case Number 31884/2015, and by the
Supreme Court and Constitutional Court's dismissal of the application of the
Leave to appeal the High Court's decision in Case Number 31884/2015, the
Respondent State through their judiciary treated the Complainants differently
because they were self-actors in violation of their rights to freedom of
discrimination enshrined in Article 2, equality enshrined in Article 3 of and to
independence of the courts under Article 19.37 The Complainants submit that
the Courts failed to recognize that they were self-actors and therefore ought to
have been exempted from what they believe to have been overly technical
decisions from the Courts of the Respondent State. 38
61. The First Complainant submits that he was "treated disrespectfully by the
courts which directly affected his dignity."
62. If is the contention of the Complainants that by denying the 2nd Complainant to
be represent the 1st Complainant and joining the former to the latter's obligation
to pay legal costs, the courts denied their right to be heard in violation of Article
7 of the CharteL39 They also submit that the decision by the Supreme Court of
Appeal and the Constitutional Court to dismiss their application for leave to
appeal without reasons (in their opinion) instead of adjudicating the
Constitutional Issue which they claim to have been raising, also violated their
right to be heard under Article 7. 40
63. The Complainants aver that their rights to information in Article 9 of the
Charter were violated when the SCA and Constitutional Courts of the
Respondent State did not provide reasons or provided otherwise insufficient
36 Complainants' Submissions (2022) Para 21
37 Complainants' Observations on Admissibility and Merits ( 2022) 15-16, 19-20
38 Complainants' Observations on Admissibi lity and Merits (2022) plO, para 2
39 Complainant's Observations on Admissibility and Merits (2022) para 45 an
40 Complainant's Observations on Admissibility and Merits (2022) para 21
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reasons to dismiss the application for leave to appeal the decision of the High
Court in Case Number 31884/2015. 41
64. In addition, it is the opinion of the Complainants that their discrimination as
self-representing litigants denied them equal access to the public service and
property in their countries in violation of their rights protected in Article 13(2)
and (3) respectively.42 The Complainants further allege that they are unable to
exercise their right to freely determine their political status and freely choose
the policy for their economic and social development as enshrined in Article 20
of the Charter. This, they argue, is due to the difficulty of amending the
impugned Constitution which they opine to enable the mistreatment of selfactors by courts.
THE RESPONDENT STATES' SUBMISSIONS ON THE MERITS
65. The Respondent State argues that South Africa has one of the most progressive
constitutions in the world in which all the rights enshrined in the Charter are
protected. They submit that the Constitution apportions powers, duties and
obligations to the organs of the State, including the Courts.
66. South Africa submits that the 2nd Complainant was not denied legal
representation by the High Court's refusal to allow the 1st Complainant to
represent it as opined by the Complainants. It is submitted that Mr. Jacobus Van
Heerden, the 1st CoJ]lplainant could not have represented the 2nd Complainant
as he was and is not a Legal Practitioner with the right of appearance to
represent the 2nd Complainant before the Courts of South Africa.
67. The Respondent State Contends that the Complainants were not denied legal
aid in the manner they assert. According to the Respondent State, legal aid is
granted in terms of the Legal Aid South Africa Act (Act No. 39 of 2014) under
which legal aid may only be provided in criminal matters and not the civil
litigation that the Complainants were embroiled in.
68. South Africa contends that the Superior Courts' dismissal of the Complainant's
leave to appeal without a hearing or full judgment is a long-standing practice
of the judiciary of the Republic. The Respondent State s._,.,i O"Supreme
41 Complainants Observations on Admissibility and Merits (2022) para 47-4
42 Complainants' Observations on Admissibility and Merits (2022) para 49 a
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Court of Appeal and Constitutional Court dismissed their application to leave
to appeal, on the basis that the order of the High Court was correct and the
Complainants' appeal did not have any reasonable prospects of success.
69. Further to this, the Respondent State contends that under South African law,
there is a long-established practice that applications for leave to appeal may be
dealt with summarily, without an oral hearing or comprehensive judgment.
This, the Respondent State argues, is to avoid clogging the court roles with
vexatious matters. South Africa submits that to require hearings and reasoned
judgments in applications for leave to appeal would defeat the whole purpose
of the requirement for leave to be obtained in the first place.
FINDINGS OF THE COMMISSION ON MERITS
Alleged violation of Article 7 and 26
70. The Commission notes that the principal issue behind this Communication is
the conduct of the Courts, being High Court Case Number 31884/2015, SCA
354/ 19 and Constitutional Court case of CCT162/19. The Complainants take
issue primarily with 4 things (a) The High Court's refusal to allow the 1st
Complainant to represent the 2nd Complainant in Case Number 31884/ 2015; (b)
the High Court's dismissal of the 2nd Complainant's application for legal aid;
(c) the High Court's joining of the l5t Complainant to the order on costs made
against the 2nd Complainant; and (d) the Supreme Court of Appeal's dismissal
of the Complainants' application for leave to appeal Case Number 31884/ 2015
in SCA 354/19, which was again upheld in Constitutional Court case of
CCT162/19. The principal allegation here is that the Respondent State violated
the Complainants' .right under Article 7 and 26 of the Charter by their courts
not acting impartially in the abovementioned decisions. The Commission also
notes that the allegations on the violation of Articles 2, 3, 5, 9, 13, 19 and 20 of
the Char ter are all based on the argument of judicial impropriety, and as such
are dependent on the Commission's findings on this principal allegation.
71. The Commission is tasked to determine whether these acts violate the
Complainants' right for their cause to be heard, specifically the guarantee of
impartiality of the courts. The Commission w ill also determine whether, these
four allegations amount to a violation of the Respondent State' obligati
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Article 26 of the Charter to guarantee the independence of the
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Courts as they anchor the Complainant's entire case and determine whether the
other rights cited were indeed violated.
72. Article 7 of the Charter reads as follows:
1. Even; individual shall have the right to have his cause heard. This comprises:
a. the right to an appeal to competent national organs against acts of violating his
fundamental rights as recognized and guaranteed by conventions, laws, regulations,
and customs in force;
b. the right to be presumed innocent until proved guilhJ by a competent court or
tribunal;
c. the right to defence, including the right to be defended by counsel of his choice;
d. the right to be tried within a reasonable time by an impartial court or tribunal.
2. No one may be condemned for an act or omission which did not constitute a legally
punishable offence at the time it was committed. No penalhj may be inflicted for an
offence for which no provision was made at the time it was committed. Punishment is
personal and can be imposed only on the offender.
73. Article 26 of the Charter provides that:
State parties to the present Charter shall have the duhJ to guarantee the independence
of the courts and shall allow the establishment and improvement ofappropriate national
institutions entrusted with the promotion and protection of the rights and freedoms
guaranteed by the present Charter.
74. The impartiality of a Court or Tribunal is an essential element of the right to be
heard under Article 7(1)(d). The Commission recalls the findings of the African
Court on Human and Peoples' Rights (the African Court) in Amini Juma v
United Republic of Tanzania that:
"... to ensure impartialihJ, any court must offer sufficient guarantees to exclude any
legitimate doubt. However, the Court observes that the impartiality of a judicial
authorihJ is presumed, and indisputable evidence is required to refute this presumption.
In this regard, the Court shares the view that "the presumption of impartialihJ carries
considerable weight, and the law should not carelessly invoke the possibilihJ of bias in
a judge" and that "whenever an allegation of bias or a reasonable appreh
is made, the adjudicative integrihJ not only of an individual judg
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administration ofjustice is called into question. The Court must, therefore, consider the
matter very carefully before making a finding" 43
75. In the Commission's Principles and Guidelines on the Right to a Fair Trial and
Legal Assistance in Africa (Guidelines on Fair trial}44 it is stated that:
(a) A judicial body shall base its decision only on objective evidence, arguments and
facts presented before it. Judicial officers shall decide matters before them without any
restrictions, improper influence, inducements, pressure, threats, or interference, direct
or indirect, from any quarter or for any reason. 45
76. The Guidelines further state that:
(c) The impartialihJ of a judicial body could be determined on the basis of three relevant
facts:
1. that the position of the judicial officer allows him or her to play a crucial role in the
proceedings;
2. the judicial officer may have expressed a,n opinion which would influence the
decision-making;
3. the judicial official would have to rule on an action taken in a prior capacihJ.
77. It is the view of the Complainants that the High Court did not act impartially
as a court or tribunal to denying the 1st Complaint from representing the 2nd
Complainant in Case Number 31884/ 2015. In fact, the Complainants believe the
Court targeted them as self-actors and that this falls part of a broader judicial
practice in the Respondent State in which unpresented litigants are treated
unjustly.
78. The Commission notes from the facts of the matter as pleaded by the
Respondent State that the 1st Complainant was not permitted to represent the
2 nd Complainant in the Court because the High Court as he is not a Registered
Legal Practitioner in the Respondent State. The Respondent State submitted
that in terms of S24(1) of the Legal Practice Act (Act No. 28 of 2014), this would
not have been possible under South African Law. Further to this, the
Commission notes that in terms of South African Law in general, a
cannot conduct a case in court except by the appearance of co
43 Application 024/2016 (judgment) (2021) 5 AfCLR 113
44 (2003)
45 Article 5
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behalf.46 Further, that this is an age-observed rule which is said to have
originated from as far back as the 17th century. What is clear for the
Commission is that this is a general legal standard which is in the Respondent
State's Statute Book and forms part of practice. This legal configuration of right
of appearance for companies is well within the margin of appreciation of the
Respondent State as a sovereign. The only question left to be answered in
considering whether the court did not act impartially in applying this rule in
HC 31884/ 2015, is whether it was only applied to the Complainants or whether
it was applied uniquely in such a manner that would raise concern. This is a
law of general application which would be applicable to anyone. The
Complainants also have not placed any evidence before the Commission that
would establish a trend of differential application. It is therefore the position of
the Commission that the Court applied the law to the Complainants as they
would any company appearing before it. The High Court's refusal of the 1st
Complainant to represent the 2nd Complaint therefore cannot amount to a
violation of the right to be heard under .Article 7 of the Charter.
79. The Complainants also allege that the High Court's dismissal of the 2nd
Complainant's application for legal aid was in violation of Article 7 of the
Charter in that it was discriminatory. The Commission notes from the
observations and evidence of the Respondent States that provision for legal aid
in the South African Courts is made for criminal matters and not civil matters.
What is clear from the facts of this case is that the principal dispute between the
1st and 2nd Complainant and DCD as litigated in the High, Supreme and
Constitutional Courts was a civil matter. Furthermore, the 2nd Complainant was
not being prosecuted in HC 31884/2015, and therefore could not have been
eligible for legal aid under the Respondent State's Legal Aid South Africa Act.
The Commission therefore notes that the Courts acted independently and
impartially in dismissing the 2nd Complainant's legal aid application in HC
31884/ 2015, accordingly no violation of Article 7 can be found.
80. The Commission now turns to consider whether the High Court's joinder of the
1st Complainant to the order on costs made against the 2nd Complainant violated
Article 7 and 26 of the Charter. From the relevant judgment, it appears the Court
made a decision based on law observed in the Respondent State in which a
person who is not a party to litigation but funds or stands to benef
46 Yates Investment (Pty) Limiters v Commissioner for Inland Revenue (120/55) (1955] Suprem
Appeals 76 (5 November 1955)
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litigation may be jojned for the purposes of obtaining costs from them.47 From
the legal precedent cited by the Court and its reasoning, it is clear to the
Commission that this appears to be established law not arbitrary practice
imposed exclusively on the 1st Complainant. Furthermore, the Commission
notes that the Complainants have not established any bias in which the Court
deviated from conventional practice. Accordingly, no violation of the alleged
articles can be discerned from the High Court's joinder of the 1st Complainant
to the order of costs against the 2nd Complainant.
81. The Commission now turns to consider whether the Supreme Court of Appeal's
dismissal of the Complainants' application for leave to appeal Case Number
31884/2015 in SCA 354/19, which was again upheld in Constitutional Court
case CCT162/19 violated the Complainants' rights under Article 7 and 26 of the
Charter. The Complainants allege that the dismissals ,o ccurred without reasons.
The Commission notes from the evidence submitted by the Complainants,
being the Order of the Supreme Court of Appeal, that the Court indeed
stipulated why the application was dismissed. 48 From the second page of the
judgment in question, one can glean that the "The application for leave to appeal is
dismissed with costs on the grounds (hat there is no reasonable prospect of success in
an appeal and there is no other compelling reason why an appeal should be heard." This
too is confirmed by the Respondent State in their pleadings on the merits, an
averment that the Commission finds to be persuasive.
82. However, the Commission considers that what the Complainants claim to be
absence of reasons in this case is the absence of a full judgment such as the one
provided by the High Court in case number 31884/2015. The Commission notes
that whilst tlle dismissal was indeed not communicated in a lengthy judgment,
the reasons ·for the decision were indeed provided, nonetheless. The
Respondent State argues that under South African law, Superior courts may
dismiss applications for leave to appeal by issuing an order without a
comprehensive judgment as that would have been addressed in the Court aquo.
The Commission is persuaded by this position, as the Respondent State
postulates, it would defeat the purposes of requiring leave to appeal if Courts
would dedicate their time and resources belaboring points which would have
been addressed in the lower courts. The Commission considers th
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48 Case No; 354/19 Annexure "B" page 2
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legitimate cause, providing reasons and acting in accordance with the law of
the Respondent State.
83. It is clear to the Commission that the Complainants are dissatisfied with the
outcomes of the litigation primarily because of their misunderstanding of the
law in the respondent State, which ignorance can neither be a defense nor
excuse. In the foregoing, the Complainants in their pleadings opine that they
should have been indulged a greater deal of lenience because they were selfactors. The Commission considers this to be the very corollary of the allegations
raised by the Complainants. One cannot allege that the courts were biased
against them because they were not given the special treatment they desired.
That would cause the Courts to act with the bias they accuse them of exhibiting.
Whilst its generally accepted that Courts should not strictly enforce superfluous
technicalities in a way that would fundamentally encumber the access to justice
for people representing themselves, the facts presented before the Commission
do not fit those circumstances. The Commission is not convinced that the
Complainants were the victims of undue treatment by the Courts on account of
their status as self-actors.
84. The Complainants have not demonstrated that the a) The High Court's refusal
to allow the 1st Complainant to represent the 2nd Complainant in Case Number
31884/2015; (b) the High Court's dismissal of the 2nd Complainant's
application for legal aid; (c) the High Court' s joining of the 1st Complainant to
the order on costs made against the 2nd Complainant; and (d) the Supreme
Court of Appeal's dismissal of the Complainants' application for leave to appeal
Case Number 31884/2015 in SCA 354/19, which was again upheld in
Constitutional Court case of CCT162/19 were discriminatory decisions not
based on the objective evidence, arguments and facts presented before the
Courts of the Respondent State. The Complainants were heard by the Courts,
they did access justice, to the extent that they complied with the Laws of the
land, which in the Commission's opinion would have been applied similarly on
other litigants. Consequently, the Commission finds that Article 7 has not been
violated.
Alleged violation of Articles 2, 3 and 19
85. The Complainants allege that their rights to equality and freedom from
~=~....
discrimination to equality before the law and equal protection of the la
as their peoples' rights to equality was violated by a) The High Court
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to allow the 1st Complainant to represent the 2nd Complainant in Case Number
31884/2015; (b) the High Court's dismissal of the 2nd Complainant's
application for legal aid; (c) the High Court's joining of the 1st Complainant to
the order on costs made against the 2nd Complainant; and (d) the Supreme
Court of Appeal's dismissal of the Complainants' application for leave to appeal
Case Number 31884/2015 in SCA 354/19, which was again upheld in
Constitutional Court case of CCT162/19.
86. Article 2 of the Charter states that:
EvenJ individual shall be entitled to the enjoyment of the rights and freedoms
recognized and guaranteed in the present Charter without distinction ofany kind such
as race, ethnic group, color, sex, language, religion, political or any other opinion,
national or social origin, fortune, birth, or other status.
Article 3 states that:
1. EvenJ individual shall be equal before the law.
2. EvenJ individual shall be entitled to equal protection of the law.
87. Article 20
All peoples shall be equal: they shall enjoy the same respect and shall have the same
rights. Nothing shall justifiJ the domination ofa people by another.
88. Article 2 of the Charter prohibits unfair discrimination49 and guarantees equal
enjoyment of the rights and freedoms guaranteed in the Charter without
distinction, including the rights to be heard under Article 7 which forms the
backbone of this Communication. The Commission in its seminal decisions of
Kenneth Good v Republic of Botswana50 (Kenneth Good) and Egyptian
Initiative for Personal Rights and Interights v Egypt51 (Egyptian Initiative)
held that discrimination occurs where like cases receive different treatment
which is objectively and unreasonably unjustified . To these ends, in Equality
Now and Ethiopian Women Lawyers Association (EWLA) v. Federal Republic
of Ethiopia, the Commission reiterated that the burden to prove these elements
49 Communication 734/19- J represented by ISLA and KELIN v The Republic of Namibia, M erits, pa
50 Communication 313/05, para 219
51 Communication 323/06, para 121 & 137
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lay squarely on the Complainants, without which a violation of the right may
not be found.52
89. In the present case, the Commission notes that the Respondent State has not
met their burden to establish discrimination, beyond alleging discrimination on
the basis of dissatisfaction with the outcomes of their case. In Peter Odiwuor
Ngoge v The Republic of Kenya, 53 the Commission reiterated that it may not
make a finding of discrimination based on bare factual assertions that do not
meet the legal threshold. Moreover, the Commission has already found that the
Complainants enjoyed their rights to be heard under Article 7. It is therefore
untenable considering these circumstances to concluqe.that the Complainants
were victims of discrimination in violation of Article 2 of the Charter.
90. Regarding the alleged violation of Article 3 of the Charter, the Commission
recalls its jurisprudence in Zimbabwe Lawyers for Human Rights and the
Institute for Human Rights and Development (on behalf of Andrew Barclay
Meldrum) v Republic of Zimbabwe20 (Meldrum) that Article 3 guarantees fair
and just treatment of individuals, within the legal system of a given country,
whereby every individual is equal ·before the law and guaranteed equal
protection of the law. 21 Article 3(1) entitles individuals to equal application of
existing laws and to have the same procedures and principles applied under the
same conditions. 54 The principle that all persons are equal before the law means
that existing laws must be applied in the. same manner to those subject to them
and Judges and administration officials may not act arbitrarily in enforcing
laws. 55 Equal protection of the law under Article 3(2) refers to the right of all
persons to have the same access to the law and courts and to be treated equally
by the law and courts, both in procedures and in the substance of the law. It is
akin to the right to due process of law, but in particular applies to equal
treatment as an element of fundamental fairness. 56 Similarly, the Complainants
bear the burden to prove differential application of the law and provision of
access to justice in each case.
91. The Commission notes that in HC Case 31884/2015, SCA 354/ 19, and
......-:==:::::--...
CCT162/19, the Complainants w ere subjects of established law, o
52 Communication 341/07, para 147
53 Communication 432/12, Merits Decision, para 84
54 Meldrum Merits decision, para 96
55 Meldrum, Merits Decision, para 96
56 Meldrum, Merits Decision, para 100
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applied to their circumstances regardless of their assumed vulnerability as selfactors. The Commission notes that in all these decisions, the Courts interpreted
and applied existing legislation in _accordance with the historical judicial
precedent cited in all the cases. This means that and as clearly demonstrated by
the Respondent State, any other person claiming legal aid in a civil case would
have been d enied; any other juristic person approaching the courts without a
lawyer would have been dismissed; any other person who isn't a registered
legal practitioner would have been barred from representing another person;
any other non-party funder would have been joined to the bear the costs of
litigation in which they have a manifest financial interest; and any other
prospective appellant whose appeal had no prospects of success would have
been summarily dismissed with no need for a comprehensive judgment. In any
event, the Complainants fall far off from satisfying their legal burden to
demonstrate that the way in which the Courts of the Respondent State applied
the law was only specific to them, and in a manner that objectively and
reasonable unjustifiable.
92. The Commission is of the view that to the extent that they complied with
existing law as applied to everyone else, the Complainants enjoyed access to the
courts, were held to the same legal standards and procedures with other
litigants similarly situated with them and were not victims of arbitrary
application law by judicial officers. Accordingly, the Commission does not find
a violation of Article 3 of the Charter.
93. The Commission now turns to.consider allegations of the violation of Article 19.
It must be recalled that Article 19 of the Charter is a Peoples' right and not an
individual right. In the case of Kelvin Gunme and others v The Republic of
Cameroon, it was held that before the Commission can find a violation of
peoples, it must satisfy itself that the Complainants are themselves peoples. 57
No evidence has been put before the Commission to suggest that the
Complainants, being one individual from South Africa (the 1st Complainant)
and one juristic person (the 2nd Complainant) are a people within the meaning
conferred by the Charter. Accordingly, in line with its findings in the case of
Legal Resources foundation v Zambia," The Commission believes that recourse to
Article 19 of the Charter was mistaken. The section dealing with peoples cannot -,-,!l~ ..==uM:::::4::::::11t,..,_
4
in this instance." 58
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57 Communication 323/06, Merits decision, para 166-179
58 Communications 211/98, para 73
23 I Page
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94. On the allegations of the violation of Articles 2; 3 and 19, the Commission
decides that there have been no violations.
Alleged violation of Art icle 5
95. The First Complainant also submits that he was "treated disrespectfully by the
courts which directly affected his dignity." Article 5 of the Charter provides
that:
Even; individual shall have the right to the respect of the dignihJ inherent in a human
being and to the recognition ofhis legal status. All forms ofexploitation and degradation
of man particularly slaven;, slave trade,· torture, cruel, inhuman, or degrading
punishment and treatment shall be prohibited.
96. The Commission recalls its decision in Sudanese Civilians in South Kordofan
and Blue Nile (represented Sudan Democracy First Group, REDRESS, Human
Rights Watch, INTERIGHTS and Enouglt Project) v Sudan that Article 5, a
completely non-derog&ble right, 59 guarantees respect for the dignity inherent in
the human person and the recognition of his or her legal status, and further
prohibits all forms of exploitation and degradation of man or woman, including
slavery, slave trade and torture, cruel, inhuman or degrading punishment and
treatment.60
97. The Commission notes at the offset that it has been established prior that the
Complainants were not disrespected by the Courts and on that basis alone the
claim falls.61 Furthermore, the Commission visits its findings in Civil Liberties
Organization, Legal Defense Centre and Legal Defense and Assistance Project
v. Nigeria reiterating that allegations of the violation of Article 5 require proof
and that burden befalls the Complainants. 62 The Commission finds that there is
no violation of Article 5 of the Charter.
Al leged violation of Article 9
98. The Complainants aver that their rights to information in Article 9 of the
Charter were violated when the SCA and Constitutional Courts of the
Respondent State did not provide reasons or provided otherwise insufficient
59 Article 19 v Eritrea (2007) AHRLR 73 (ACHPR 2007) para 98
60 Communication 402/11 & 4 20/12 (2023) para 120
61 The findings on the alleged violation of Articles 7 and 26 of t he Charter above.
62 Communication 218/98 ( 2001), para. 45
24 I Page
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African t"t'i.
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The African Commission on Human and
31 Bijilo Annex Layout, Kombo
West Coast Regio~ 1:1mt=i:::::=---Phone: (220) 230 4361 Fax: (220) 441 05 04
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African Commission on
Human and Peoples' Rights
Human Rights our
Collective Responsibility
reasons to dismiss the application for leave to appeal the decision of the High
Court in Case Number 31884/2015.63 Article 9 of the Charter provides that:
1. Even; individual shall have the right to receive information.
2. Every individual shall have the right to express and disseminate his opinions within
the law.
99. The Commission notes that these allegations, while being raised under the
abovementioned right, invoke Article 7 of the Charter as they speak to the
Complainants to receive information from the Courts in a judicial context. The
Commission recalls its analysis above on the Complainants' right to have their
cause heard where it found that the Complainants were indeed informed of the
reasons for the dismissal of their application for leave to appeal by the Supreme
Court of Appeal and the Constitutional Court. The · Commission finds no
violation of Article 9.
Alleged violation of Article 13 and 20
100.
The Complainants have argued that they were discriminated as selfrepresenting litigants and denied equal access to the public service and
property in their countries in violation of their rights protected in Article 13(2)
and (3) respectively. 64 Article 13 of the Charter reads:
1. Even; citizen shall have the right to participate freely in the government of his
country, either directly or through freely chosen representatives in accordance with the
provisions of the law.
• 2. Even; citizen shall have the right of equal access to the public service of his country.
3. Even; individual shall have the right ofaccess to public properhJ and services in strict
equalihj ofall persons before the law.
In its decision on Civil Liberties Organization (in respect of Bar
Association) v Nigeria, 65 the Commission stated a general principle on this
right, to the effect that:
101.
Competent authorities should not enact provisions which would limit the exercise of
this freedom. Competent authorities should not override constitutional provisions or
undermine fundamental rights guaranteed by the constitution and int
human rights standards.
63 Complainants Observations on Admissibility and Merits (2022) para 47-48
64 Complainants' Observations on Admissibility and Merits (2022) para 49 and 50
65 Communication 101/93, para 15
25 I Page
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Africant \1
Union\:.?
The African Commission on Human and Peop
31 Bijilo Annex Layout, Kombo Nort
West Coast Region Gambia
Phone: (220) 230 4361 Fax: (220) 441 05 04
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ACHPR
African Commission on
Human and Peoples' Rights
~
Human Rights our
Collective Responsibility
102.
The Commission once again recalls its findings regarding Articles 2, 3
and 7 of the Charter that the Complainants were not discriminated against.
Furthermore, from the facts presented before it, the Commission cannot identify
any element of this case which invokes the rights enshrined in Article 13. On
that basis, there can be no violation of the right to Article 13.
103.
Regarding the allegations on the violation of Article 20, which provides
that:
1. All peoples shall have the right to existence. They shall have the unquestionable and
inalienable right to selfdetermination. They shall freely determine their political status
and shall pursue their economic and social development according to the policy they
have freely chosen.
2. Colonized or oppressed peoples shall have the right to free themselves from the bonds
ofdomination by resorting to any means recognized by the international communihJ,
3. All peoples shall have the right to the assistance of the state parties to the present
Charter in their liberation struggle against foreign domination, be it political, economic,
or cultural.
104.
The Commission recalls its reasoning above on the alleged violation of
Article 19 that individuals appearing before the Commission in their individual
capacities are not the subject of Peoples' rights. In view of the foregoing, the
Commission finds no violation of Article 20 of the Charter.
FINDINGS OF THE COMMISSION ON REMEDY
105.
The Commission notes that the Complainant's prayers were all based on
the main allegations of malfeasance by the Courts of the Respondent State,
which allegations h~ve been found to bear no merit. Accordingly, in the absence
of v iolations, the Commission may not grant any of the prayers of the
Complainants. Therefore, all the Complainant's prayers are dismissed .
DECISION OF THE COMMISSION ON MERITS AND REMEDY
106.
1.
For all these reasons, the Commission declares that:
The Respondent State has not violated Articles 2, 3, 5, 7, 9, 13, 19
of the Charter.
26 I Page
A5~~(j)
The Afri can Commission o n Human and P
31 61J1lo Annex Layout, Kombo
West Coast R
Phone: (220) 230 4361 Fax: (220)
Fm:ail · :::111. h :::1ni11lt'm~fri r.:::1-1ininn nrn
Human Rights our
Collective Responsibility
ii.
The prayers of the Complainant are all dismissed
Done at the 81 st Ordinary Session of the Commission held in Banjul, The Gambia
from the 17th of October to the 6th of November 2
\
~IC~
27 I Page
M:,);J>:#M
African~,,
Union\!,t
The African Commission on Human and Peoples' Rights
31 Bijilo Annex Layout, Kombo North District,
West Coast Region Gambia
Phone: (220) 230 4361 Fax: (220) 441 05 04
Fm:.il · ::111- h::1ni111/n)~ frir.;:1-1 1ninn n rn