Ambe (Represented by Shadrack Tebeile) v Republic of South Africa (Communication 758/21) [2024] ACHPR 15 (2 August 2024)

Decision of the African Commission on Human and Peoples' Rights on Admissibility Communication 758/21 Ambe (Represented by Republic of South Africa Summary of the Complaint: Queen Ntombikayise Shadrack Tebeile) v 1. The Secretariat of the African Commission on Human and Peoples' Rights (the Secretariat), received a Complaint on 21 May 2021, from Queen Ntombikayise Ambe (the Complainant) represented by Adv. Shadrack Tebeile, against the Republic of South Africa (the Respondent State), a State Party to the African Charter on Human and Peoples' Rights (the African Chai;ter).1 2. The Complainant states that she was the former pirector of Contract Management and Management Accounting of the University of Limpopo, where she worked until 31 March 2019, when she resigned. The Complainant alleges that she was enrolled for the Doctor of Commerce program at the University of Limpopo, in South Africa (the University) : According to the Complainant, the University held that she was not qualified .for conferment of the degree, on the basis that she was not qualified for initial entry .. into the program, and had not completed the requirements for graduation. 3. The Complainant states that on 5 October 2018, her enrolment into the Doctor of Commerce program was terminated. The Complainant filed for review of this decision under case number 2172/2019, and the University filed notice to oppose the review application. The Complainant alleges that despite the University having been served notice.of set down of the case on 12 August 2019, the date for filing the University's affidavit in opposition to the Complainant's application for review elapsed with no response from the University. 4. The Complainant avers that on 22 October 2019, she obtained a default judgment from the High Court of Limpopo Division, presided over by Semenya J. on unopposed roll, declaring that the University's decision to terminate the Complainant's enrolment the Doctor of Commerce program was unconstitutional and therefore, set aside. into 5. The Complainant alleges that the University appealed on the grounds that its failure to file its affidavit i~ opposition was d~e to it not having r_eceived ~otice of ~A9.!-:~- ,/_,,,-,.· -, of set down from its lawyers. Accordmg to the Complamant, this argumer1.e ~'.(~~1,., T,, _,,.., ~tc i:!!!14f? ,, '"Ir ' 0 0 I V . 1 The Republic of South Africa ratified the African Charter on 9 July 1996. _) ..:: ,r () , :2 O di U1 ~ ' \ "l~, l:'.o accepted by the High Court on the grounds that the explanation for its failure to file its affidavit in opposition was cogent enough, and that the University's substantive case stood a good prospect of success. 6. The Complainant further alleges that the High Court, upon review, on 25 August 2020 ordered a rescission of the default judgment of 22 October 2019, and subsequently affirmed the right of the University to deny the Complainant of conferment of the doctorate degree. 7. The Complainant avers that, in particular, the decision to set aside the 22 October 2019 default judgment of the High Court was deficient, in that the judge appears not to have taken into consideration the arguments p~t forward by her legal representatives, as to why the University's .application . £or rescission ought not to have been heard. As evidence, the Complainant states that the written judgement does not make a single reference to the arguments set fo~th by her representative. 8. The Complainant avers that she sought leave to appeal at the level of the Court of Appeal, Supreme Court of Appeal and Constitutional Court and was denied each time. / i. At the High Court, the Complainant brought an application for leave to appeal against the judgmept and the order handed down on 25 August 2020. The application for leave to appeal wa5'•heard on 16 September 2020 and was struck from the roll with costs order. · · ii. The Complainant approached' the Supreme Court of Appeal seeking leave to appeal. On 9 February 2021, the Supreme Court of Appeal dismissed the Complainant's appl~cation for leave to appeal with costs. iii. The Complainant approached the Constitutional Court seeking an order for leave to appeal and to set aside the judgment and order of the High Court. On 3 May 2021, the Constitutional Court dismissed the Complainant's application for leave to appeal. 9. The Complainant submits that in view of the foregoing, the judge having failed to take her argum,ents into account, violated her rights under the African Charter on Human and Peoples' Rights (the African Charter). Articles alleged to have been violated: 10. The Complainant alleges violation of Articles 1, 3(1) & (2), 7(1) & 7(1) (c)& (d), 17(1), 19, and 26 of the African Charter. Prayers of the Complainant 11. The Complainant prays that the Commission grant the following reliefs: a) Declaration that the Respondent State violated the Complainant's rights under Articles 1, 3(1) &(2), 7(1), 7(1)(c)&(d), 17(1), 19, and 26 Charter; / i· (/,§~ J ( : ; l ._1 (') ~ U• '.q {;;.- € b) The Judgment and order of the High Court of South Africa, Limpopo Division, Polokwane, handed down on 25th August 2020 by Makgoba JP be set aside; c) The University of Limpopo be directed to implement the Court Order by the High Court of South Africa, Limpopo Division, Polokwane handed down on 22nd October 2019 per Semen ya J under case number 2171 / 2019; and · d) The Respondent State be ordered to pay compensation in the amount of $500,000 (five hundred thousand dollars) to the Complainant within six months from the date of this order. Procedure: 12. The Secretariat received the Complaint on 21 May 2021. 13. By letter dated 5 July 2021, the Secretariat informed the Complainant that in accordance with Rule 115(5) of the · Rules of Procedure 2020, the Secretariat considered the above-referenced Communication and decided to be seized of it. 14. In the same letter, the Complainant was informed that pursuant to Rule 116(1) of the Rules of Procedure 2020, she is required to submit arguments and evidence on the Admissibility and Merits of this Communication within sixty (60) days of the notification. 15. By Note Verbale dated 5 July 2021, the Secretariat notified the Respondent State that a Complaint has been brought against it and that in accordance with Rule 115(5) of the Rules of Procedure 2020, the Secretariat considered the complaint and decided to be seized of it. 16. In the same Note verbal, the Sef:retariat informed the Respondent State that in accordance with Rule 116(1) of the Rules of Procedure 2020, the Complainant has been requested to submit arguments on Admissibility and Merits, within sixty (60) days of notification, to enable the Commission to proceed with a determination on Admissibility of the Complainants' submissions on Admissibility and Merits will be transmitted to the Respondent State, in line with Rule 116(2) of the Commission's Rules of Procedure 2020. the Communication. Once received, 17. The Complainant by letter dated 24 July 2023, forwarded to the Secretariat of the Commission, its submissions on Admissibility and Merits of the Communication. 19. By Note Verbale dated 8 August 2023, the Secretariat forwarded to the Respondent State, the submissions of the Complainant on Admissibility and Merits of Communication and informed it that in accordance with Rule 116(2) of the Rules of Procedure 2020, the Respondent State is requested to forward its observations on the submissions within sixty (60) days of receipt of the notification. 20. By letter dated 6 October 2023, the Respondent State requested for an extension of time (30 days) to submit its arguments on Admissibility and Merits of the Communication. 21 . By Note Verbale dated 6 October 2023, the Secretariat informed the Respondent State that in accordance with Rule 98 of the Rules of Procedure 2020, its request for an extension of time to forward your submissions on Admissibility and Merits within thirty (30) days in relation to Communication has been granted. 22. By Letter dated 6 October 2023, the Se~retariat informed the Complainant that the Respondent State has requested thirty (30) days extension of time to submit its arguments and evidence on Admissibility and Merits, which has been granted, in accordance with Rule 98 of the Rules oLProcedure 2020. 23. By Note Verbale dated 16 November 2023, the Respondent State forwarded its arguments on Admissibility of the Communication. 24. By Note Verbale dated 8 February 2024, the Secretariat informed the Respondent State that the, Secretariat received its submissions on Admissibility only and not on the Merits. The Secretariat referred to Rule 116 (2) of the Commission's Rules of Procedure 2020, which requires litigants to submit observations on both Admissibility and Merits. The Secretariat further informed the Respondent State that in line with Rule 98(2) of the Rules of Procedure 2020, the Respondent State has been granted an extension of time of thirty (30) days from the date of notification to submit its observations on the Merits of this Communication, and failure to do so would warrant the Commission to adopt a default decision based on the information before it. 25. By letter dated 8 February 2024, the Secretariat informed the Complainant that in line with Rule 98(2) of the Rules of Procedure (2020), the Respondent State was granted suo motu an additional thirty (30) days from the date of notification, to file its observations on the Merits of this Communication. 26. By Note Verbale dated 7 March 2024, the Respondent State informed the Secretariat that it is not in a position to address the Merits of the Communication, as the Merits have never been served before the Courts in the Respondent State, and the matter is still pending before the High Court. 27. By letter Note Verbale dated 11 March 2024, the Secretariat ac the Note Verbale from the Respondent State dated 7 March 2 -ON '1(j~I , t of ~ ~ 28. The consideration on Admissibility of the Communication was deferred from the 78th to the 79th Ordinary Sessions of the Commission. The Law on Admissibility Complainant's Submission on Admissibility 29. The Complainant submits that the Communication meets the Admissibility requirements under Article 56 of the African Charter. 30. The Complainant submits that the Communicc:1.tion was submitted by Queen Ntombikayise Ambe represented by Adv. Shadrack Tebeile, against the Republic of South Africa, in accordance with Article 56(1) ofthe African Charter. 31. The Complainant submits that in accordance with · Article 56(2) of the African Charter, the Communication is compatible with the Constitutive Act of the African Union and the African Charter as the alleges violations related to human rights which is guaranteed by the African Charter. . 32. In accordance with Article 56 (3) of the African Charter, the Complainant submits that the present Communication and the allegations therein do not contain disparaging or insulting language b~cause the Complainant has used language which is not insulting or derogatory the Respondent State. 33. The Complainant in relation to article 56(4) submits that the claims for violations in the present Communication and the allegations therein are not based exclusively on news disseminated through the mass media. Instead, they are based on the decisions by the authorities or institutions and courts of the Respondent State and the court proceedings which took place within the domestic courts of the Respondent State. 34. Pursuant to Article 56(5) of the African Charter, the Complainant submits that the matter has been heard throughout the local courts in the Respondent State until the highest courts, namely the Constitutional Court. According to the Complainant, the fact that the matter has been adjudicated by the Constitutional Court means that the matter has been aµjudicate by the highest court of the Respondent State. Thus, the Complainant submits that local remedies within the Respondent State had been exhausted. 36. In accordance with Article 56(7) of the African Charter, the Complainant submits that the present Communication was never settled by the parties in accordance to the principles of the Af_rican Charter of the United Nations, the Constitutive Act of the African Union, the provisions of the African Charter, or any legal instrument of the African Union, thus satisfying the requiring of Article 56(7) of the African Charter. The Respondent State's Submission on Admissibility 37. The Respondent State submits that the Communication is not admissible as it does not meet the requirement of exhaustion of local remedies as required by Article 56 (5) of the African Charter. 38. The Respondent State avers that the Complainant wrongfully submitted that she has exhausted local remedies by means of the mere fact that she "has approached the Constitutional Court which is the highest Court in the Respondent", and that her case in the Constitutional Court has been dismi~sed. 39. The Respondent State argues that in the case wherein a court grants the application for recession of judgment, the original default judgment will be set aside or reconsidered. This in effect entails that the case will, be reopened, and the parties will have an opport,unityto :present their case. According tq the Respondent State, in this Communication, the 'University of Limpopo succeeded in having the default judgment of Seinenya J rescinded and set aside. Therefore, the Applicant as the dominus litis can enroll her application for hearing since the main review application under case number: 2172/2019 is still pending before the High Court. 40. The Respondent State avers that domestic remedies refer to remedies sought from the judicial courts of aState and qre only considered to have been exhausted if all levels of national courts have been petitioned. The Respondent State refers to the Commission's decision in Nixon Nyikadzino v Zimbabwe 2 where the Commission held that "the whole purpose of asking Complainants to exhaust local remedies before approaching the Commission is to give the Respondent State a chance to redress the alleged human rights violations through its structure and organs" . 41. The Respondent Stare argues that competent national judicial organs and systems to resolve disputes between persons and the State in terms of applicable law do exist in the South African domestic legal system. According to the Respondent State, South Africa has an effective and functioning legal system and there is no reason why the courts cannot be trusted to resolve disputes. The Respondent State noted that the Commission has always been careful to avoid stepping over the invisible but very real line between its jurisdiction and intrusion into the domaine reserve of a State Party to the African Charter. 42. The Respondent State states that the High Court in the application for leave to appeal, the Supreme Court of Appeal and the Constitutional Court (in the petition for leave to appeal) did not hear or adjudicate on the merits of the application for review, but on whether the judgment of Makgoba J can be appealed by a different court, which all courts have dismissed. The Respondent State argues that this in effect now entails that the application for review must now be heard and adjudicated by the High Court. 43. The Respondent State submits that the Complainant can approach the High Court to hear her matter and adjudicate on the matter. It is therefore abundantly clear that the processes and remedies available in the dpmes!iclegal system of South Africa are sufficient to address the matters raised by the· Complainant. Consequently, sufficient remedies exist for the Complainant to address the alleged violation of his rights under the South African Constitution and through the court processes available to her. 44. The Respondent State avers that the Commission is not an appeal court and the Complainant is using the Commission as such and that it has the necessary power to set aside decisions taken by competent national courts. 45. The Respondent State therefore submits that it has undoubtfully demonstrated the availability of adequate judicial remedies based on the consideration of domestic constitutional and legal principles, and that the Commission, considering the applicable principles of international law and its own jurisprudence, should thus conclude that the Complainant has not exhausted local remedies in line with Article 56(5) of the African Charter. The Commission's Analysis on Apmissibility 46. The Commission recalls that Article 56 of the African Charter sets out seven requirements that a Communication brought under Article 55 of the African Charter must satisfy, in order to be Admissible, which apply conjunctively and cumulatively. 3 47. In the present Communication, the Complainants claim that this Communication fulfils all the requirements of Article 56 of the African Charter. The Respondent State on the other hand submits that the Complainants have not fulfilled the requirements of Article 56(5) and as such, the Commission should declare the Communication Inadmissible. 3 Communication 304/2005 - FIDH & Others v. Senegal (2006) ACHPR, para 38. 48. Article 56(1) of the African Charter states that "Communication relating to Human and Peoples' Rights ... received by the Commission shall be considered if they indicate their authors even if the latter request anonymity ... " The Complaint received by the Commission indicates the authors and its legal representatives. The Commission therefore holds that the requirement under Article 56(1) of the African Charter is fulfilled. 49. Article 56(2) of the African Charter states that "Communications ... received by the Commission shall be considered if they are compatible with the Charter of the Organization of African Unity or with the present Charter." The present Communication sets out Articles of the African Charter alleged to have been violated (Articles 1, 3(1) & (2), 7(1) & 7(1) (c)& (d), 17(1), 19, and 26). The Communication is brought against the Republic of South Africa, a State Party to the African Charter which it ratified on 9 July 1996. The Commission therefor~ holds that the requirements under Article 56(2) have been fulfilled. ·, 50. Articled 56(3) of the African Charter states that "·Communications .. . received by the Commission shall be considered if they are not written in disparaging or insulting language directed against the State concerned and its institutions or to the Organisation of African Unity now African Union (AU)". The Commission is of the view that the language used in the present Communication is not written in disparaging or insulting language directed at the State, its 'institutions or the AU and for these reasons, the Commission finds that the requirements of Article 56(3) of the African Charter have been complied with. 51. Article 56(4) of the African Charter states that" Communications relating to human and Peoples' Rights ... shall be considered if they are not based exclusively on news disseminated through the mass media" There is no evidence in this Communication which indicates that the allegations contained therein are based exclusively on news disseminated through the mass media. The evidence provided is based on the decisions by the authorities, institutions and court proceedings of the Respondent State. For these reasons, the Commission finds that the requirements of Article 56( 4) of the African Charter have been fulfilled. 52. Article 56(5) of the African Charter states that "Communications relating to human and Peoples' Rights ... shall be considered if they: are sent after exhausting local remedies, if any unless it is obvious that this procedure is unduly prolonged". The Complainant submits that the matter has been heard throughout the local courts in the Respondent State to the highest court, namely the Constitutional Court. According to the Complainant, the fact that the matter has been adjudicated by the Constitutional Court means that the matter has been adjudicate by the highest court of the Respondent State and domestic remedies have been exhausted i ~ with Article 56(5) of the African Charter. The Respondent State on it par ~fs.'"~;,i, <I - .,)., <:,t , 4f?/ .,;-· o· Ii i'~~ ,, ~ WI \\I\ A~A 'n ' 1,0 <Ir ~ «- 't.11 u· ,~ j) <· O,i,"I .______, <;,(J ~ .;c¾,. -'R,cA1N~ 0~ "''7 ~€' ET DES p'i,\}~v .........:;;==--,;::,,-' that the Complainant wrongfully submitted that she has exhausted local remedies by the mere fact that she "has approached the Constitutional Court which is the highest Court in the Respondent". 53. The Respondent State argues that in the case wherein a court grants the application for recession of judgment, the original default judgment will be set aside or reconsidered. This in effect entails that the case will be reopened, and the parties will have an opportunity to present their case. According to the Respondent State, in this Communication, the University of Limpopo succeeded in having the default judgment of Semenya J rescinded and set aside. Therefore, the Complainant as the dominus litis can enroll her application for hearing since the main review application under case number: 2172/2019 is still pending before the High Court. · 54. The exhaustion of local remedies requirement is a fundamental principle of international law ensuring the proper functioning of domestic legal systems and granting national authorities the opportunity toaddress alleged violations before international intervention. The Commission held in Nixon Nyikadzino v Zimbabwe4 that requesting Complainants to exhaust local remedies before approaching the Commission is to give the Respondent State a chance to redress the alleged human rights violation~ through its structure and organs. In Amnesty International and Others v. Sudan5, the Commission also held that it is when local remedies have been exhausted or proven ineffective, is recourse to international mechanisms appropriate. 55. In the present communication, the Commission notes the arguments of the Complainant that local remedies have been exhausted as the matter has been heard in the higllest court in South Africa i.e. the Constitutional Court. However, the Commission in analyzing the facts and decisions of the Courts approached in the Respondent State, agrees with the Respondent State that the merits of the matter is still pending before the High Court of the Respondent State. This is because the matter that was heard up to the Constitutional Court of South Africa was on an application for leave to appeal the decision by the High Court to rescind the default judgement that was previously granted and that the University should file an affidavit that will allow the matter to be heard on its merits. 4 Communication 340/07-Nixon Niykadzino (represented by Zimbabwe Human Rights NGO Forum) v. Zimbabwe, (2014) par. 84. See also Peter Joseph Chacha v Tanzania, App. No. 003/2012, Judgment of 28 March 2014, par. 142, where the African Court on Human and Peoples' Rights found that the exhaustion of local remedies is not a matter of choice, but a legal requirement in international law. 5 Communication 48/90-50/91-52/91-89/93 ...... Amnesty International and Others v. Suda/#n .., ,?·~• .,,i:.ctH:T "'~,.q:·..,~~. (' ., i (,; •:> I,..~: ~ ~· ' .. P ..) n w ;·.1 i o J ;: '~4 ~ p ff!' g9 <f'o "1 ~•o 4 .<r?/CAIN"' O ; ; , '¼ <· o,,.., V,< ·'11'11 ~~ ~-ui:.--:;;,~ ,.,~'-';/ ,' ,- C I , AU,UA ' \ . · 1 1,:( 1· rc,'? " ' . ~ r ' 56. Therefore, it is the Commission's view that, the application for leave to appeal having been dismissed by all the Courts in the Respondent State, the Complainant should allow the Courts in the Respondent State to hear the matter on its merits, by going back to the High Court, where the main review application under case number: 2172/2019 is still pending for hearing. 57. The Commission has held in several communications such as in Tsatsu Tsikata v. Ghana; Kenyan Section of the International Commission of Jurists, Law Society or Kenya and in Kituo Cha Sheria v. Kenya and Interights (on behalf of Jose Domingos Sikunda) v. Namibia, that the Complainants brought the matter before it prior to exhausting domestic remedies, indeed while the matter was still pending before the High Courts of the Respondent States and as such, domestic remedies were not exhausted. 58. In line with the above reasoning, the Commission finds thatthe Complainant has not exhausted local remedies · in accordance with Article 56(~) of the African Charter. 59. Article 56(6) of the African Charter states that Communications relating to human and Peoples' Rights ... shall be considered if they: are submitted within a reasonable period from the time local remedies are exhausted, or from the date the Commission is seized with the matter". The Complainant submits that the Communication was filed within a reasonable time from the date of exhaustion of local remedies. The highest court of the Respondent State, i.e. the Constitutional Court, handed down its Order on 03 May 2021 and this Communication was,filed before the Commission before the end of June 2021, which is two (2) months from the date of the Court Order handed down by the Constitutional Court. The Commission in Promoting Justice for Women and Children (PROJUST NGO) V. DRC6 held that, where article 56(5) has not been compiled with, there is no reason to proceed to consider article 56(6) as it will conclude that the latter . is not compiled with. With the same reasoning therefore, the Commission having decided above that local remedies were not exhausted, conclude that Article 56 (6) of the African Charter has not been not complied with. Peoples' Rights... 60. Article 56(7) of the African Charter states that "Communications relating to human and not be deal with cases which have been settled by these states involved in accordance with the principles of the Cllarter of the United Nations, or the Charter of the Organisation of African Unity or the provisions of the present Charter." 'The Complainant states that this Communication has not been settled by any international body and as such considered they: shall if do this requirement has been met. The Respondent State has not objected to this and there is no evidence before the Commission to show that the Communication has been settled by another international body. The Commission therefore finds that this requirement has been fulfilled. Decision of the Commission on Admissibility 61. Based on the above analysis, the Commission: a. Declares this Communication Inadmissible for failure to comply with Article 56(5) and (6) of the African Charter; and b. Notifies its decision to the parties in accordance with rule 118(4) of its Rules of Procedure 2020. 12