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I ~ ACH,PR • ,- African Commission on Human and Peoples' Rights Human Rights our Collective Responsibility Revisitation of the Commission's admissibility deaision 170. The Respondent State has sought to r~open the issue of admissibility of this Complaint, despite it having been decided upon by the Commission.w While conceding that reopening of the admissibility decision is not proper at this stage of the proceedings, the Respondent StatJ's arguments in support of this attempt to revisit the Commission' s admissibility decision are based on points already canvassed at the admissibility stage) namely: the relief sought by the Complainants in the domestic courts Jf the Respondent State, the domestic remedies avai~able t~ the Complainants.land the ~~~~r9H~:,Eemedial options open to the Complamants in the Respondent State. ,:{:;/ "<, };'" 171. Worthy of note is that the 2010 Rules of b_~~~:,~~ers ,i','!'e ~idance on the conditiorus) for granting a review, In P_~19cu~~r,~ul~1~P'(~)0~:. des that: If the Commission has declared a G~fffffiUj1!ic~ti~~:i!hadmiS":~~'b,thisdec o~ may be reviewed at a later date, upon the/5'ubmission -,Jf ne~v/evidence;<G~/ ai ed in a written request to the Commission by,t#-{t." hor. '\'.{'!: .....' ' I' \l' 1- -_.; ..,~. ]': •• , 172. This means that under t~,~2010 Rules:\]0.f,yrocedtifejofthe Commission, a review of the Commission' s p,~~l~tonon adIIJ:J§S". ity carv.p(;,cu)',>wherethree conditions are present: Firstly,.,t]1e 'C2i,:~¢issi, ;'\if:mus,':aye fo{l,ila'that a communication is inadmissible" i ,:Seconqr the(i~~~~( reqJe~t~!t~~~,~{~e~iew must be accompanied by a submission of ne.w ~vid~i;i,S'~,;;'; andi third.~~:~fie request must come from the author of the Communication, nof,:the,Respondent State. 11 11 173. :",ssuming th~,~\~p~ndent ~sable t;~tsuch a request - and the Resp~ndent IS;n..9table to do.so.in this instance'> 1t IS clear from the Rules that a review of the'" '" 'ssion'~~C!e9is}onon a,dip.issib~lity is preconditioned on fulfilling the othert':\'<\ "'v\",,"""._, :Q§1Dditions;·"hb,afJi$j~tl}El:;~ecisioh must have been declared inadmissible ' -..".,~:,,_, ..I by the~\Co~'f?§i,?n, and the Respondent State must have produced new eVidence\'h,:::.~6t;;;'0''': - ';' , 174. The Respoi.1~ent State'submitted that th~ Commission did not have all the facts at its disposij~, when the decision on admissibility was made. Yet, the facts on which the Re~~~Sil~e~tState relies in its sfb~ssions hav~ already been .brought before the CO.inmISSlOnand taken due cpgrusance of. WIth~ut pres~nt~~~~, and compellmg facts, the Government has merely reIterat~d~,~"t~~~i~~~, . f hi . f Ioca I reme dile~~W'1:tlcn/',,-.~"'S;)".,,1-l arguments on t he requirement 0 ex austion 0 sr: (/<!,li; !.~' 0 ,J ~ r"":~-:"''' "~'>1.'\' 9 ,0 .·i~"t.""~ 01 ' '!r;:, "':~-~~~. ., ,J , I ,\' .j,~ ':,><\,~ ~"t\ G1 ~ , 5 ~" h 0-: f~: t'u (I) _~~ rll-' ,'"i' ~t>. 0' (;JQ f§ t, 'i'l 0 »to r, ,<-, &y '§!;?:~'Q. C: _',/0 ;>.'0 ", 44 ~ ~a .~\'<. Ji> ~U'.,"t "_ I The Ad~sibility d~cision on this C~m~unication as adopted in Kigali, Rwanda, durili~t~ai:~~~~~~~O"v ",: Extra-Ordinary SeSSIonof the Commission held from 20 to 29 July 2014, 1>- " "l'HOf;\~~ , ~-.-~,--.__.,... Page 34 ofSt

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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

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

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