Previous 25 / 52 Next

ACHPR African Commission on Human and Peoples' Ri~hts Human Rights our Collective Responsibility Commission's own guidelines acknowledges that the rights of the Complainants cannot trump the rights of the community at large, but must be balanced in order to achieve a fair result.: 120. The Respondent State submitted that the Commission must apply this principle to the facts of this case by recognising t~at the Respondent State must balance between the rights of the Complainants with that of, first, the wider South African community in avoiding wastefrll expenditure on land that cannot be developed and, second, other people i I a similar situation with that of the Complainants who also must follow the procedu:nr;~or>Cl,cquiringhousing, and, /' \ third, protection of the proprietary rights of the 0wners"ofthe Property. ~.,,, ~'" ' \' ~ (i) Right to housing \\'">::,, <~:':',? ;:; T' -. .' 121. The Respondent State submitted that prnna.".".recourse of~th¢Cb~plainants in terms of the right to housing is s,,~ft, 26 of it~)\f=onstltti:q.R,n. Se'ctibr{26 of the South African Constitution pro~i<;tesfo ri ; f access 'tq,'~~~"qpatehousing. The Respondent State not~d;'\tt~at al~ his right t§9'C)grused in its Constitution has no dire~t eciuiv~i~l1.t.in the ';~ti~J,~an Charterr'this Commission has held that the right to-housing is pro ected ih~;, e African Charter through a combination of provisfo~"protecting#ief:i!&,ht to " \;.,,,~Fty(Article 12), the right to th~ highest att~~~~~~esta~~~r~;,~t·~m:nt~l~~Il~p~~:~icalhealth (Article 16), and the right acco~,~:eBto't~e fa~l,x«~rtIc~t 18);~~.;~s such, th~ Respondent State :;;~~:d to ad~SS the right to terms of the combmed effect of these hq~Sl~;;! 122. The RespondeI).,J,State submitted ;,tha,tt>iheright of access to housmg under sec~i<?n26 .of the:;;$,;~,~S~ Afric~ C~#stitu~ion has been dealt with extensivel~ by S?u~~\Afr).~~n c~urt~~:~~t~t}!;c~~!~~te.T~e Responden: State alluded to ~an~us pIece~;pf1~gIs.l~tIon tnat~na,Me~eeenenacted under section 26 of the Constitution to give,:~£fect"9,9~P4P.the right to access to housing and the prohibition against arbitrary"evic'iions.',,,1)iest::dnclude the Ex~ension of Security of Tenure Act 62 of '" ' ' ';. I 1997, the Prevention ,of'Illegal Eviction From and Unlawful Occupation of Land Act 19 of 1998, the Housing Act 108 of 1997, the Development Facilitation Act 67 of 1995, the ~at~cmal Environment Act ]07 of 1998, and the Municipal Finance Management-Act 56 of 2003. I 123. The Respondent State submitted that tie competing interests between South African law and the Complaint currerttly before the CommissiC-)TFN-"require a . I .~~ ",UNiA AIVfj~ balance between the South African I government's oI;)'$"a!WniAltuil(1el1o~the Constitution to provide housing and the basic principle/ptt e.... c;ove.rnm'€J1t i 25 First Submission ff; t~ jH on Merits on behalf of the Republic 10fSouth Africa, pa~ ~.1(b itin~SEMC affrl C; Another v Nigeria (2001) AHRLR 60 (ACHPR 2001». p,'J~0g""I'/) / \\.s, ~<:> "'I '~}06.\.5' .>~Oly A':RICP.\~ «..::,~. ;', (";.;01\7 o~s'?_/- ,!a.'ge;-~4of 51 ~'''4 ..

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