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African Comm1ss1on on
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Human and Peoples' Rights
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effective , because they offer a prospect of success; and sufficient, because it is
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capable of fully redressing the alleged violations.33
58 . The Complainant argues that he exhausted all available local remedies because
he utilised the legal system up to the apex court, that is, the Constitutional Court.
59 . On the other hand, the Respondent State submits that while the Complainant filed
a case in the Constitutional Court, the matter was dismissed on a technicality.
Thus , the Complainant still had the opportunity to file an application on the normal
roll from the High Court and appeal , if the outcome was undesirable , up to the
Constitutional Court.
60 . The Respondent State further submits that according to the domestic legal system
of the Republic of South Africa , it is trite law that when a case is struck off the roll ,
it is unappealable per the Thembane Cleaning Services judgment referenced
above.34 Therefore, the procedure to approach the Constitutional Court of South
Africa was misplaced and premature.
61 . In this Communication , the Commission concurs with the Respondent State's
assertions and notes that after the urgent application was struck off the roll , the
Complainant did not take the necessary steps to file the application on the normal
court roll and allow the necessary court processes to unfold. This would have
allowed for the matter to be adjudicated on the merits, which, if dismissed, could
have been appealed against at the Supreme Court of Appeal. However, the
Complainant did not do so .
33 As above, para. 32.
34
Paragraphs 40 and 41 of these submissions.
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