42. The Respondent State states that the High Court in the application for leave to
appeal, the Supreme Court of Appeal and the Constitutional Court (in the petition
for leave to appeal) did not hear or adjudicate on the merits of the application for
review, but on whether the judgment of Makgoba J can be appealed by a different
court, which all courts have dismissed. The Respondent State argues that this in
effect now entails that the application for review must now be heard and
adjudicated by the High Court.
43. The Respondent State submits that the Complainant can approach the High Court
to hear her matter and adjudicate on the matter. It is therefore abundantly clear
that the processes and remedies available in the dpmes!iclegal system of South
Africa are sufficient to address the matters raised by the· Complainant.
Consequently, sufficient remedies exist for the Complainant to address the alleged
violation of his rights under the South African Constitution and through the court
processes available to her.
44. The Respondent State avers that the Commission is not an appeal court and the
Complainant is using the Commission as such and that it has the necessary power
to set aside decisions taken by competent national courts.
45. The Respondent State therefore submits that it has undoubtfully demonstrated the
availability of adequate judicial remedies based on the consideration of domestic
constitutional and legal principles, and that the Commission, considering the
applicable principles of international law and its own jurisprudence, should thus
conclude that the Complainant has not exhausted local remedies in line with
Article 56(5) of the African Charter.
The Commission's Analysis on Apmissibility
46. The Commission recalls that Article 56 of the African Charter sets out seven
requirements that a Communication brought under Article 55 of the African
Charter must satisfy, in order to be Admissible, which apply conjunctively and
cumulatively. 3
47. In the present Communication, the Complainants claim that this Communication
fulfils all the requirements of Article 56 of the African Charter. The Respondent
State on the other hand submits that the Complainants have not fulfilled the
requirements of Article 56(5) and as such, the Commission should declare the
Communication Inadmissible.
3
Communication 304/2005 - FIDH & Others v. Senegal (2006) ACHPR, para 38.