00 024 0
12.
Furthermore, the fact that the shareholders can come before the African Court to
assert violations of their individual rights is an illustration of how the corporate veil can
be lifted and based on this the identity of the shareholders and the company in question
will be deemed to be the same.
13.
lt is based on the above mentioned consideration thatthe Court held that local
remedies had been exhausted because the Applicant and his company AGRIIAND are
one person. Furthermore, since the Applicant and AGRILAND were found to be one
person it would have not been necessary for the Applicant to institute a case in local
courts based on the same facts and arising from the same matters as the case that was
instituted by his company AGRILAND.
14.
Now moving on to the issues of the identity of the parties as one of the conditions
to be fulfilled for res judicata to apply under Article 56(7), it is important to note the
positions of the aforementioned jurisprudence of the lnter-American Court of Human
Rights and European Court of Human Rights.
15.
ln the case of Canfos v Argentina the lnter-American Court of Human Rights
stated the following:
"Argentina asserts that legal entities are not included in the American Convention and,
therefore, its provisions are not applicable to them, since they do not have human rights.
However, the Court observes that, in general, the rights and obligations attributed to
companies become rights and obligations for the individuals who comprise them or who
act in their name or representation."s
16.
ln the case of Agrotexim and Others v Greece the European Court of Human
Rights noted the following:
"The Applicants complaint was based exclusively on the proposition that the alleged
violation of the Brewery's right to the peaceful enjoyment of its possessions had adversely
affected their own financial interests because of the resulting fall in the value of their
shares. The Applicants considered that the financial losses sustained by the company
and the latter's rights were to be regarded as their own, and that they were therefore
victims, albeit indireclly, of the alleged violation. ln sum, they sought to have the
company's corporate veil pierced in their favour."6
s
Canlos v. Argentina Judgment of September 7,2001 (Preliminary Objections), paa.27
6
Agrotexim and Others v. Greece 14807189, (1996) EHRR 250, [1995] ECHR 42, para. 63
.
4