.
. ~CHP~ .
AC H p R
'
.,
.
African Commission on
Human and Peoples' Rights
Human Rights our
Collective Responsibility
7. On the 2nd September 2014, DCD submitted the same dispute to the arbitration
and ATS participated in those proceedings. After ATS failed to pay its share of
the arbitration fees, on 5th March 2015, DCD informed ATS that the arbitration
had lapsed. The Arbitrator indicated that they would be bound by a court order.
8. DCD presented this dispute to the High Court culminating in Case number
31884/2015. The application was set down for a hearing in December 2015.
However, at the hearing, Judge Tolmay refused for the 1st Complainant Mr. Van
Heerden to represent the 2nd Complaint, and ordered the latter to file an
application for legal aid.
9. This culminated in the set down of 3 Applications which were all heard and
decided by Judge Niewenhuizen, being the Representation, Main and Joinder
Applications.
10. The Representation Application was heard first and dismissed. In this
Application, the First Complainant sought Legal Aid for the 2nd Complainant
following the Judge's refusal for the former Complainant would therefore not
be represented in the Main Application.
11. The Main Application was heard next, here the Court sought to determine
whether the Arbitration instituted by DCD had lapsed by way of the 2nd
Complainant failing to pay their portion of the Arbitration Fees. The Court
upheld DCD' s plea that the Arbitration had lapsed and ordered the 2nd
Complainant to pay Costs. The Court also decided that an order in terms of a
notice of motion would follow.
12. On the Joinder Application, DCD sought to join the 1st Complainant, Mr. Van
Heerden to the Main Application to pay Costs for the 2nd Complainant in his
capacity as sole sponsor of the 2nd Complainant's litigation in the matter. The
Court upheld DCD' s relief and joined Mr. Van Heerden to the Main Application
so as to enforce the cost order made against 2nd Complainant in his name.
13. The Complainants filed a complaint against the Judge Janse Van Niewenhuizen
before the Judicial Services Commission (JSC) on the grounds that she was
biased and did not decide their matter with independence and Impartiality.The
Complaint was dismissed by the Tribunal of the JSC. The Complainants filed
an appeal against that dismissal which was also dismissed. The JSC took the
view that the Complaint by the Complainants concerned the merits of their
High Court Case Number 31884/2015 and was best dealt with judicially via
appeal of the decision itself in the superior courts.
14. Following their dismissal in the JSC, the Complainants then followed the T~ =!c==:::::-......
guidance and appealed Judge Niewenhuizen' s decision. The Co
filed an application for leave to appeal the decision of the High C
21 Page
•,,. h
Africant'J·
Union, ~
The African Commission on Human and Peo
31 Bijilo Annex Layout, Kombo
West Coast Regio
Phone: (220) 230 4361 Fax: (220) 4
Fm;ail · "'' ,.h,.ni, 11/nl;afrir •