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p.C HP~ ~ fl ' 6~!:tEfi 0 ( <UI.T.m Human R;ghts ou, Human and Peoples' Rights Collective Responsibility 37. The Respondent State submits that the Complainants have not exhausted local remedies because the decision of the JSC was never appealed at the High Court but rather sent straight to the Supreme Court of Appeal.3 38. The Respondent State further postulates that the alleged denial of Legal Representation for the 2nd Complainant was not a denial of justice but rather inline with established legal practice in the Republic of South Africa which confers the power of legal representation exclusively to Legal Practitioners within the Legal Practitioners Act (No. 28 of 2014).4 The Respondent State submits that there is no record of the 1st Complainant being a Legal Practitioner in terms of the Act. They further aver that Legal Aid provided by the Respondent State is only in respect of Criminal matters and not civil disputes. 5 39. The Respondent State also made additional submissions on the lack of exhaustion of local remedies, reiterating that the rule requires that the Complainants approach the international forum as a last resort and not a court of first instance. They cited Nyikadzino (Represented by the Zimbabwe NGO Forum) v Zimbabwe6 to argue that the aforementioned principle of complementarity would be contravened if the Commission usurped South Africa's role to adjudicate matters on the merits in terms of South African Law.7 40. The Respondent State further submits that the local remedies in South Africa were available, effective and sufficient and therefore the Complainants had an obligation to exhaust them. 8 They argue that the remedies were available and this is trite as the South African Constitution and democratic system is celebrated the world over. They emphasize that their Bill of rights in Article 31 provides for the right to seek remedy from competent judicial organs, which judicial organs they state provide for a robust system of adjudication and appeal. 9 41. The Respondent State submits that its remedies are effective and sufficient as they are independent and impartial, citing the Commission's decision in Gabriel Shumba v Zimbabwe. 10 They propound in addition that the remedies 3 Respondent State's Observations on Admissibility & Merits, para 9-12 Respondent State's Observations on Admissibility & Merits, para 16 5 Respondent State's Observations on Admissibility & Merits, para 17 6 Communication 340/07 7 Respondent State's Observations on Admissibility & M erits, para 22-24 8 Respondent State's Observations on Admissibility & Merits, para 25 9 Respondent State's Observations on Admissibility & Merits, para 27-29 10 Respondent State's Observations on Admissibility & Merits, para 30-33 4 6I Page The African Comm 31 Bij es' Rights North District. ~ - ~ ~st Region Gambia Phone: (220) 230 4361 Fax: (220) 441 05 04 F=m~il · ;:u 1. h~nil llln)~frir..::1-1 minn 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
English
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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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