Qitr.�, < ACHPR -j African Commission on mmri' • Human and Peoples' Rights Human Rights our Collective Responsibility access to the courts in Mauritius, and it would be against the principle of protection of the law that restrictions be now brought back for litigants to issue or resist process. 148. On that basis, the Complainant contends that the Supreme Court was wrong in ruling that "this court retains a residual discretion upon good cause shown to allow litigants to dispense with the services of an attorney and sue in person". Arguably, the Court Rules are binding to the Court. The rule of law so requires. The competent authority who makes the rules should also follow them, unless and until they decide to change them which, by nature, they are entitled to. To rule otherwise would give leeway to arbitrariness and the rule of power as the Commission has warned,49 and this indeed ,opens the door to the very violations of the right to equal access to the .courts, �s some individuals could be granted access while others in similar conditions are denied same. 50 This Commission is of the view that the Supreme Court Rules, so Jong as they are in force, are binding upon the Court itself. 149. The position long held by this Commission is that failure to re-open the proceedings, when there are reasons to do so, thereby preventing the complainant from presenting his defence and the parties from discussing whether the case should be continued, is a violation of the principle of equality of arms. 51 In legal proceedings, the judicial authorities should always ensure that the parties are not 'placed in a position of legal or procedural inequality. [. . . ] no one could claim to have enjoyed the right to defend himself if he or she were not afforded the same opportunity as his opponent, under the same conditions, to present his or her case and produce evidence' . 52 150. 151. In Communication 2 77/03 Spilg and Mack & DITSHWANELO (on behalf of Lehlohonolo Bernard Kobedi) v Botswana, making a pronouncement on the refusal to reopen an individual's trial for murder despite new evidence that would exonerate him, the Commission did not find a violation apparently because the contested - Q N ""' (;,i 49 Communication 294/04, n30 above, para 118. 50 See the reasoning of the Commission on the notion of 'margin of appreciation' in Communicati Anver Prince v South Africa, 7 December 2004, para. 37. 51 Communication 286/2004, n26 above, paras 198-200 52 Communication 302/05, n38 above, para 117. Page 35 of 45 (.C><f7� .! � v, : �·j. .Z! _f' , � C:.;ji African Commission on Human a , _. 31 Bijilo Annex Layout, Ko r,i_ot, ' West Coast m.bi.l , . -;:./ �:-:�- · Phone: (220) 230 4361 Fax: ( Email: au-banjul@africa-union.org https:/achpr.au.int/0 0 D <,�J