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ACHPR African Commission on Human and Peoples' Rights Human Rights our Collective Responsibility must uphold the rule of law that prevents the illegal occupation of law. Added to that, the Respondent argued, is the Jbligation of the Municipality to ensure that expenditure is incurred in accordance with the Municipal Finance Management Act, which ensures the fisdal responsibility of municipalities. 124. The Respondent State submitted that as part of its responsibility to make adequate and safe housing available t9 the applicant, the Municipality has to conduct a number of studies on the pr~perty under consideration, including a feasibility study, a technical survey, a domolite stability investigation, and an environmental impact study.26 ,l}:Jt ',,,,i;\, 125. The Respondent State submitted that]I if tAe;;'1;yIunici:p~lity were to simply 1>,,,, purchase the property or any other prol1'erty"tor''t > matt~f without complying '1,.+,." ..:.'-),:.. ~/_~:.: :!id::dne:::::Ju] le!~:~~~tu~:r~?~~!~:<~f ~»i~;1u!n~: Management ~~t, ,:"hich CO~ ..I.d... ,.,.;, .i•.. " .. ,h.'.~V~"'.~,,.s . ..er~o. u.s.fJegal "'c~~~..e.\ .quences for the government officials involved Il'Je:Judmgc~.Tmma.~.prosecutib .. «fr;~~z!:!~;:!'i:_': '.' , :, .... " 126. The Respondent State submitted "tq~t:,SlDuth 'A:f:ritanlaw aims at implementing section 26 of the Co~t~fution in a\~~i!~nced>In~))rer, the property rights of landowners, the rights-o' , ,<:;cupiers",,~p~~i,~t~ally of'~liln;~'rablegroups, as well as the rights and obJig~tipns 0 '" , '"fueht -wi,l;:' egar!~,tohousing.s? <!:.~'> .. - ,'- .'~\ '> , _ ,,::,';_r;::l:~_;fJY 127. The Respondent State submittecftplit in impl~¥~nting its obligation to provide housing, the .Complainants were:"'Il.l§>,ved onto the Property as an emergency measure follQ:w~nga flood in th~''':~'!i>" .;;:where they were living. However, following an apPli.cation for eviction e Complainants from the Property by the-lawful own~r$;\:tl:teIDM Trus~/}he ~unicipality has been and is still in the prdc"~~s-:otprovidiitg.ap:prppriate hbusink for the Complainants." x \j!"~t.;~~~;~:?,>, a, =: ":'j~':'~ 128. The R~s.p~it-a~~tj';',$tate submitted that the Municipality has provided basic services' :'to th,~;tCorupl~hl,ants in response to the High Court's judgment. The Government" argued"/{1;ldfit has been dJtermined that the Municipality cannot purchase ttt§, PropertY as it is not sUiiable for habitation. The Government, however, clcilwed that it has identified JIternative land for development and is in the proces~;;5rfinalising the last legis~ative requirements before construction of houses can commence. The Respondent State added that the Complainants I I _ First Submission on Merits on behalf of the Republic [ofSouth Africa, para 5.25. ~ 27 Citing the Extension of the Security of Tenure Act ~2 of 1997; Prevention of IJJ.,~P~~~ti,Q,J4)fi ~~ and Unlawful Occupation of Land Act 19 of 1998; Housing Act 108 0~~99J;,~~.elQ men~~ Facilitation Act 67 of 1995; National Environ lental Act 107 of 1998;.i'"MUniciPt.cl~. ~in c! ~ \\~ .. Management Act 56 of 2003.. , ;' ,~:(;·'qr:J c Gi 28 First Submission on Merits on behalf of the Republic of South Africa, paras 5.29-.5~\. ',,,"", . 26 :, q \,. ..~ p,u-UA /gJ=i (? (/) ~ Q /1 ~ :&r:«g,"~!j\'fi~."~I' ~~~ .""",

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

ACHPR Decision

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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
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African Human Rights CLA 2.0

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

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