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ACHPR African Commission on Human and Peoples' Rights Human Right s our Collective Responsibility available remedy is one where 'the petitioner can pursue it without impediment'. 24 An effective remedy will be one that 'offers a prospect of success.' 25A remedy will be sufficient 'if it is capable of redressing the complaint.' 26 51. The Commission recalls that an effective remedy will be one that 'offers a prospect of success', 27 and 'upon success, the appropriate relief is one that is capable of adequately and timely redressing the specific violation suffered' .28 It should also be noted that a prospect of success of a remedy need not be 'certainty or guarantee of a favourable outcome for the complainant' but simply an assurance of full and fair examination of the legal issues and arguments. 29 In determining the propensity of a remedy to offer real prospects of success the Commission will assess the nature of the complaint, the 'general legal and political context' of the remedies, and the complainant's personal circumstances.30 52. The Complainants argue that they exhausted local remedies when they approached the Constitutional Court which is the highest Court in the Respondent State. The Respondent State contends that the Complainants did exhaust local remedies because they did not file their appeal against the decision of the JSC in the High Court but rather approached the Supreme Court of Appeal and then subsequently, the High Court. 53. It is prudent here for the Commission to clarify a misunderstanding of the facts that has occurred between the parties. It appears that the Respondent State is of the impression that the dispute here arises from the JSC decision and not the High Court decision on the three applications. The Commission is of the view that the principal dispute arises from the High Court decision and the litigation that ensued from that point rightly commenced with an application for leave to appeal in the High Court. 24 Communication 317 / 2006 - The Nubian Community in Kenya vs The Republic of Kenya, 30 May 2016, para 55. 25 Communication 147/95-149/96: Sir Dawda K. Jawara v Gambia (The), 11 May 2000, para 31. 26 Communication 147/95-149/96: Sir Dawda K. Jawara v Gambia (The), 11 May 200 ;i...t:li::::===:::::-... 27 Communication 147/95-149/96: Sir Dawda K. Jawara v Gambia (The), 11 May 2 28 Communication 445/13- Human Rights Council and Others v. Ethiopia, 19 May 2 29 Communication 445/ 13- Human Rights Council and Others v. Ethiopia, 19 May 2 3 Communication 445/ 13- Human Rights Council and Others v. Ethiopia, 19 May 2 ° 10 I Page A~n{'t~) The African Commission o Union\!;, 31 Bijilo Ann Fm;1il · ~1 1- h:::1ni1,lln)~frir.::1-1minn nrn

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Communication 747/21: Jacobus Stephanus Van Heerden & Anor V. The Republic of South Africa

ACHPR Decision

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Type of Document

Decision

Keywords

Equality Before the Law
Right to Fair Trial

Case Head Notes: The Complainants alleged that the Respondent State's courts issued adverse rulings against them because they were self-representing litigants. They also state that the Respondent State's courts issued arbitrary, and prejudicial orders, and did not give reasons for their rulings. The Complainants allege that their experience is part of a wider-scale of judicial corruption in which the courts treat self-representing litigants unfairly. The Commission found no violation of Articles 7 and 26 because it is a general, and established, legal standard in the Respondent State that a company cannot conduct a case in court, except by the appearance of counsel on its behalf. Accordingly the complainants did not experience differential treatment and their right to be heard was not infringed. Further, the Commission noted that, while the Supreme Court of Appeal did not provide a full written judgment when they dismissed the complainants application, they did provide reasons for the dismissal and that accordingly Article 7 was not violated. The Commission found no violation of Articles 2 and 3 because there was no discriminatory treatment regarding the complainants right to be heard, or right to have equal access to the courts and equal treatment by the law. The Commission stated that the Complainants were held to the same legal standards and procedures as other litigants and that they were not victims of arbitrary application of the law by judicial officers. The Commission found no violation of Articles 19 and 20 because individuals apperaing before the Commission, in their individual capacities, are not the subject of Peoples' rights. The Commission found no violation of Article 5 becuase the Complainants were not disrespected by the Courts. The Commission found no violation of Article 9 because they stated that the Complainants' allegation actually invoked Article 7, and that had already been dealth with. The Commission found no violation of Article 13 because the Complainants were not discriminated against, and it was not clear what element of the case invoked Article 13 rights.

Country

South Africa

Outcome: Decided on Merits

Year Decided: Nov 6, 2024

Rights Alleged to be Violated (ACHPR Provisions)

ACHPR 7: Right to Fair Trial
ACHPR 9: Right to Receive Information and Free Expression
ACHPR 13: Right to Participate in Government
ACHPR 19: Right of All Peoples to Equality and Rights
ACHPR 2: Freedom from Discrimination
ACHPR 20 : Right to Self-Determination
ACHPR 26 : Duty to Guarantee Independence of Courts
ACHPR 3: Right to Equality before the Law and Equal Protection of the Law
ACHPR 5: Cruel Inhuman and Degrading Treatment

Rights Not Violated (ACHPR Provisions)

ACHPR 7: Right to Fair Trial
ACHPR 9: Right to Receive Information and Free Expression
ACHPR 13: Right to Participate in Government
ACHPR 19: Right of All Peoples to Equality and Rights
ACHPR 2: Freedom from Discrimination
ACHPR 20 : Right to Self-Determination
ACHPR 26 : Duty to Guarantee Independence of Courts
ACHPR 3: Right to Equality before the Law and Equal Protection of the Law
ACHPR 5: Cruel Inhuman and Degrading Treatment

Duration of Procedure

Sep 23, 2019 ~ Nov 6, 2024

Country Geolocation

Latitude: -30.559482

Longitude: 22.937506

Country Geolocation (linked ACHPR Decision): South Africa

Primary Documents

Jacobus Stephanus Van Heerden & Anor v South Africa.pdf
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African Human Rights CLA 2.0

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Communication 747/21: Jacobus Stephanus Van Heerden & Anor V. The Republic of South Africa

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