Previous 18 / 52 Next

ACHPR African Commission on Human and Peoples' Hiqhts Human Rights our Collective Responsibility Complainant to seize the domestic cour s. The Commission has stressed that, remedies the availability of which is not 6vident, cannot be invoked by the state to the detriment of the complainant.F Inlthis regard, the Commission recalls its decision in [atoara u.: The Gambia.t> Whe~eit held that, even if certain domestic remedies were available, "[t]he existe.Liceof a remedy must be sufficiently certain, not only in theory but also in practice, failing which it will lack the requisite accessibility and effectiveness." 84. The Commission observes that the Complainants in the present case currently :n~:~*~~:~~!:~: ~:n~:r!p~:~: ~;;l~=:~~~ :::"~:;:~::: that" it makes no sense to wait for the aourkf0(;hant an\~jiction order against [them] fr?m Portion 41,. ~hereas they ~:?"p()\t']_if>;' an.::HuJhere t? go", before, approaching the CommISSIOn.For th~1'_reasq1j.s'Jh '" inants do not deny that they are unlawful occuBier{/of the-proper' <~:;:;pd t of the counter claim against the gov~rnhW:l1tt~ suggests thaet~ have no other immediately available remedies ;:~/ainst'~i1;~: Ee~pphdent Stat"' .ts sub-national government. ".,:,.':'t~', ,JEre ¥~I:{5!f;;\}' ~ ~ 85. The Commission hol~~t:,the view tf the Compla~na~ts' submissions in the present Comrnunicatio dicate that 'uthoritl~s7,of the Respondent State were sufficiently , c"',!fie 'olaho ~eg~dly perpetrated against the Complainants{'~7: cas~fhavin ~(n[:~Sn hea1d by ).;:~lRighest court in the land. 86. tt~ On the ~asis.1i,the ~~~egoing,a~d::~i~~~.~,at likelihood o~the Complaina~ts succeeding m;i~~etammg a remedy t ," vould redress their current housing crisis and livlllg.\,conditions is §9, inimal as to render it illusory, the Commission find$l.:t,h~tthe requi;~p,_ent of Article 56(5) of the African Charter hav~l)~e11:met by the,:Gi~ . ~t's. "'. .'\ . ","-, "",,-'" .... ...." ( }::/ v , 87. Regara:in~"th~:,,:req~irement of Article 56(6) of the African Charter which stipulat~~, .}~at 'edrprIl1;mications received by the Commission shall be considered 4f they aresubmitted within a reasonable period from the time local remedies a:i-,~\exhausted, or from the d~te the Commission is seized with the matter, the R~sp~mdent State contends that the Communication was submitted after an unreasonable period. The Govbrnment argued that the Commission could not have been seized of the matter before 22 February 2012, which is the date indicated on the CommUnication~ [and which date] is more than nine months after the Applicants' application was dismissed by the Constitutional Court". Furthermore, it contended that }'the test is not when the c ..il'i~s~ /I ~/(~ ~ ~~, x-cRETARI41' D,o '\, Y0U '/ 0,0 '" ('0 }.~/~ Jawara v. The Gambia (2000) AHRLR 107 (ACHPR 2000) para 34 (Jawara case). 13 Jawara case, para 35. 12 ;JJ :{~ ( t 't5 ~ I ~ (~;j :;\u () ';'\~ % \0\ d. ~U' 1~ 171<S;b r: "",,,,-:c:P AU-UA s J-< I Q .£.;)'''<.-0, \'~~€1~l')t"!)J.)'tv" ~.~ ~~_m....-:-~:'t'i- tfJ ....;r J1

Select target paragraph3

● ● ●

Communication 377/09 - Menduzaki Patricia Monakali and others v. South Africa

ACHPR Decision

Preview

Type of Document

Decision

Keywords

Adequate Standard of Living
Cruel and Degrading Treatment
Economic, Social and Cultural Development
Education
Equality
Protection of Family and Vulnerable Groups
Right to Education

Case Head Notes: The Complainants live in Portion 41, in temporary shack dwellings on a property which is part of Roodekop Informal Settlement (RIS). They previously lived in Portion 40 of the RIS, where they experienced frequent flooding to the point that it was uninhabitable at some points of the year. They have complained to the appropriate authorities in South Africa regarding their homelessness, and requested that priority, and resources, be given to their needs, including alternative housing which they say should have already been built. The Complainants state that, in 2006, the owner of the Property, attempted to evict them in a Court proceeding. The Complainants submitted a counter-application against the municipality, praying that the muncipality had a constiutional and statutroy obligation to have a program in place to address their homeless situation by purchasing the property from the Trustees and giving adequate resources to the Complainants needs. Based on court documents, the High Court found that the municipality failed to put into action an appropriate emergency plan to address the plight of homelessness in RIS and ordered the Municipality to purchase the property and make provision for essential services for the occupiers. The Court of Appeal set aside the High Courts decision, and the Complainants' appeal to the Consitutional Court was unsuccessful. The Commission found no violation of Article 5, stating that the Respondent State cannot be held responsible for the poor conditions when the Complainants lived in Portion 40, because they did not authoritze the Complainants accomodation in the first place. Additionally, the Commission stated that there is no clear evidence that the Respondent State has violated Article 5 with respect to Portion 41 because there is no clear evidence that the Respondent State is not following due process to meet the demand for housing. Specifically, the Commission stated that there is no specific obligation for the Respondent State to address the housing and other problems of the Complainants within a timeline demanded by the Complainants. The Commission found no violation of Article 17 because there was no evidence that a violation of the right to education had actually occurred. The Commission found no violation of Article 18, but, regardless, it urged the Respondent State to address the Complainants housing issues. The Commission found no violation of Article 19 because they state that the information provided by the Complainants did not demonstrate that they are treated differently from others of similar conditions. The Commission found no violation of Article 22 because they stated that no evidence was advanced by the Complainants to demonstrate that the state is to blame for the Complainants deplorable socio-economic conditions. The Commission found no violation of Article 24 because, while they state that there is room for the Respondent State to improve its program in creating a healthy environment, the evidence does not support that the gaps in the Respondent State's efforts are to a level that meets the requirements for finding a violation of Article 24. Regardless, the Commission states that the Respondent State should make extra effort to adopt targeted measures to address the housing conditions of the effected community with urgency.

Country

South Africa

Outcome: Decided on Merits

Year Decided: Aug 2, 2023

Rights Alleged to be Violated (ACHPR Provisions)

ACHPR 17: Right to Education
ACHPR 18: Protection of the Family and Vulnerable Groups
ACHPR 19: Right of All Peoples to Equality and Rights
ACHPR 22: Peoples' Right to Economic, Social and Cultural Development
ACHPR 24: Right to a General Satisfactory Environment
ACHPR 5: Cruel Inhuman and Degrading Treatment

Rights Not Violated (ACHPR Provisions)

ACHPR 17: Right to Education
ACHPR 18: Protection of the Family and Vulnerable Groups
ACHPR 19: Right of All Peoples to Equality and Rights
ACHPR 22: Peoples' Right to Economic, Social and Cultural Development
ACHPR 24: Right to a General Satisfactory Environment
ACHPR 5: Cruel Inhuman and Degrading Treatment

Duration of Procedure

Aug 13, 2009 ~ Aug 2, 2023

Country Geolocation

Latitude: -30.559482

Longitude: 22.937506

Country Geolocation (linked ACHPR Decision): South Africa

Primary Documents

Menduzaki Patricia Monakali and Others v South Africa.pdf
English
ML TOC
Download View

African Human Rights CLA 2.0

Select target paragraph3

Communication 377/09 - Menduzaki Patricia Monakali and others v. South Africa

Primary Documents

Notifications