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.' - :.... : : ' .... .. ACHPR African Commission on Human and Peoples' Rights Human Rights our Collective Responsibility 237. The Respondent State did not challenge this contention but rather argued that no specific factual allegations about violation of Article 19 has been made. I 238. While the Commission agrees that the Complainants have a right to be treated on the same basis as other South Africa4s who have received housing from the Respondent State, it however finds t'at the information provided by the Complainants does not allow it to make a finding that they are treated differently from others of similar conditions. As such, the Commission finds no violation of Article 19 of the African Charter by the Respondent State. Alleged violation of Article 22 239. The Complainants also alleged that Article 2 violated by the Respondent State. " n Charter has been 0 240. Article 22 of the African Charter pr9v.i~~1as folloWs: <'~2if' .. ~!e=!~1::;~~ d;:~g~;::~~4:;;;me:";7:~~':d 7:1: 1 :::: 1. enjoyment of the cO~y:Jlonherita'g > mankirtd_;', '>"" .--./~~·;:·~1~\ ,.' ":'(i:'"';"!~'" /', 5 tates shall have>theT:4ff hj, ind~Rf ua'; }/:~()r_collectiJ}(ity,to ensure the exercise of 2. the right toAef!i/!/Qpmen: ;~> <_;~~; -. :.::.. r:.· ,<1'ijf;i:r' "', ;~. ~";;~:' ~'j';' . " '~;"1-.~\,,- ',;, .. ' ' '·t'-" "'. , I,. ,_~~:"?} ::':;,:,':,::/>'" 241. The Commission has develope' . risp~uden,¢e on the right to development under the Af¥f£~nC:=hart~r.In the C~~~f;?~fe~tre for Minority Rights De,velopment (Kenya! and ~~!~OYlty Rzgh.ts .Group 't~~~jlr:zatlOnal on behalf of Endorois Welfare Council v KenyaJ;;:tgeCommISSIOnh~)df;#1at: ~h~;'~right_ to de~~ig~meYJLis':"'1',a,.p~~~~prOngkd fest, that it is both constitutive and ..,., I instrumental, or use.fUl":~,a.$;tlhotW a means and an end. A violation of either the procedural or sybstan tive element constitutes a violation of the right to development. Fulfilli1jg qnly'one:ofthe two prongs will n~t satisfy the right to development. 72 , , c'. '.,"'\., ' •. ,;"", <: .C1f' ,I 242. The right tq\development is constitutive to the extent that it is recognized and protected bY,law; it is instrumental to the extent that it empowers its holders to be consulted, ':to contribute to and participate in the decision-making processes concerning them so that other rights are not violated. In all of this, the freedom of choice must be present as a fundamentkl part of the right to development." 243. In the Endorois case, the Commission Jting the UN Indepen~ Development noted that development i~ not simply the Stat~,~pYt ision of 'o~\ Ai '" ~ 0 I~" . ~ (2009) AHRLR 75 (ACHPR 2009). 73 Endorois case (n 72 above) para 278. 72 ~ <t b\'u ('l '1\,\Ci- \'''"6. ~ ~.5' \~~&/o '~, ~ c, LP.~ 0?i ~ i' ,it ~\'"J',)~ Ul "'''''''',,,.. ~ ,,0 AU-u" ~ <) ~ 8" "'" J :<,.'" jt 'IV 4':RIC"'\~ . ((_v?' '/' ItOIVT 'C,'='? pa:~..:s,,,· -{ ~ C/) -r'

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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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