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-"'.- .. ACHPR African Commission on Human and Peoples' Hiqhts Human Rights our Collective Responsibility presence of mosquitoes caused diseasesi to spread quickly. Added to this, in October 2004, three children from the Ro1oik9PInformal Settlement drowned in the £lood due to heavy rains and the lack of critical infrastructure to handle the storm waters on Portion 40. 110. The Complainants submitted that it is a yiolation of their dignity and humanity under Article 22 to now face eviction bn Portion 41, after moving onto the property with their shacks at the instaJce of the Municipality.st They argued that it is no fault of theirs that they are i1' illegal occupation of the property and currently facing eviction proceedings. 111. The Complainants submitted that in the face e proceedings against them, they are currently in desperate !1;~e ~cco ,; odation and have nowhere els~ to go to. T~ey do not ~Vf,retiily,\tav ~~:~~~, " .,~?', d the~ liv~ .in depl.orable circumstanc~s, m self c01J~r~:uEtedSR,fSfSWIt.,. m'. );lC utility services. The only service they hav,EnstHe.communal wa ',' :,pmts. '. ,<f -,'I~:\\ , '!' '<:'~~:<['."'j; 112. The Complainants f~rther av~Pt(~]i~~att~~"~f~p.onde~t.state,·~~:i\fhe primary duty bearer responsible for addresslJ.1g the hou~~l}gCrISISmusftake all necessary measures to E;! '(,~urethat t~e:')' ~t altein~fi'Xe accommodation . • ~~:'. \~~i~:'~"- M B. Respondent State's ~!ibmisst '; .~ '., ~" .~. . :~~, - -v-, . " c, ." ~(t~~:~~.'l.::·,d;' 113. The RespondentState submitteg.;~ft,pat,i consi~~ting the arguments in support of its case, the, Commission mustjd~ft$ide the fbllowing four principles, namely: the doctrine ofn:argin of appreciation?t~~~~finciple of subsidiarity, the principle of progressive reali~a(~on of rights, and Ith~lfpfinciple of proportionality in relation to the.rights alleged by the Complainants' to have been violated in this case. '-:'\;~r]l':':>"', -. :'\"" ,',' ", ,,:{~,f I 114. The "~~SR~.J..:lgent State:,a1;'gu~ci·tJjatbased on the allegations of violations of the Africcit~:,~ha'rt~t411efollowing' rights require the Commission's consideration, to wit: th~\~tg~f:jJ~O'1i~g'~~~$~ ~he right to *~man dignity .(Artic!e 5), the ri.ght to educafIon;'(~rtIcle 12)~2~J!ie right to protection of the family umt (18), the right of peoples td;';~A.ualitya:t{d equal respect (~rtic1e 22), and the right to a general satisfactory ''''"virorunent favourable to ieir development (Article 24). .. . '{" .:~,. ~':<' 115. The Respondent State submitted that, 9ased on the COmmISSIOn'SdeCISIOnin Prince v Republic of South Africa,22 the Afnican Charter is informed bI the_margin of appreciation. In considering the violations alleged by the Cq~-he" margin of appreciation doctrine, the I Respondent State t~;:~ARii[ s _________ 21 ---','-- I Ihv; ~ iI i App Iicants Response to Respon dent'ss Secon d Su b mrssion " on Ad'nussi'bili'ty ui<ged I paras 1.1.7.4. 22 (2004) AHRLR 105 (ACHPR 2004), paras 50-51. *,. .' U'1o~ M'a (~~3 'Cll~:<'r' ~~ ~--< \~ '-""'"" ' '\',:a '6 '·A Ci. <;':, ',,~:"'6- ':70's/o .:, o p'u- up. 0 (Il, 0:: /)' Q 17 t5J \~~'O s: ' \.... N A"RICI' 'Iv; {JY '\', _, (. HOMME E"( Q"-'=' ~' ~~~..l!''''''''~~~~ Page 22 of 51 e

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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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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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