Wakilii

Monakali and Others v Republic of South Africa (Communication 377-09)

African Commission on Human and Peoples' Rights · [2023] ACHPR 5 · 2023 Communication Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Communication to the African Commission alleging violations of the African Charter arising from failure to provide adequate housing and basic services to informal settlement residents
Decision
Communication dismissed on the merits after being found admissible

Observed later treatment

No later-treatment classification is recorded for this judgment.

Citator coverage is limited to judgments in the Wakilii corpus and source-matched treatment records. Absence of a signal is not an assertion that the case remains good law.

AI-generated summary. This summary was generated by AI from the full text of the judgment. It may contain errors or omissions—always read the source judgment before relying on it.

Holding

The African Commission found that the Respondent State did not violate Articles 5, 17, 18, 19, 22, or 24 of the African Charter. While the Commission acknowledged the poor living conditions of the Complainants in the informal settlement, it held that the State could not be held responsible for conditions in Portion 40 where it had not authorized accommodation. Regarding Portion 41, the Commission found insufficient evidence that the State failed to take appropriate measures or discriminated against the Complainants in providing basic services. The Commission emphasized that socio-economic rights are subject to progressive realization and available resources, and that States have discretion in resource allocation.

Outcome

Communication dismissed on the merits after being found admissible

Facts

The Complainants are 76 households occupying Portion 41 of an informal settlement in Ekurhuleni Metropolitan Municipality, South Africa. They previously resided on Portion 40, which was overcrowded, prone to flooding, and had unhygienic conditions. Three children drowned in floods in October 2004. In November 2004, following representations by municipal officials, the Complainants moved to Portion 41, believing the Municipality would purchase the land and build RDP houses. The property belongs to the IDM Trust, which brought eviction proceedings. The Complainants filed a counter-application seeking alternative accommodation and prevention of eviction. The High Court ordered the Municipality to purchase the property, but this was overturned on appeal. The Constitutional Court dismissed the Complainants' application for leave to appeal. The Complainants live in temporary shack structures with only communal water points and no electricity or sanitation services.

Issues

  1. Whether the Respondent State violated Article 5 of the African Charter by failing to provide adequate housing and basic services, thereby infringing the Complainants' right to dignity.
  2. Whether the Respondent State violated Article 17 of the African Charter concerning the right to education.
  3. Whether the Respondent State violated Article 18 of the African Charter concerning protection of the family unit.
  4. Whether the Respondent State violated Article 19 of the African Charter concerning equality of persons and rights.
  5. Whether the Respondent State violated Article 22 of the African Charter concerning the right to economic, social and cultural development.
  6. Whether the Respondent State violated Article 24 of the African Charter concerning the right to a general satisfactory environment favourable to development.
  7. Whether the Communication was admissible, particularly regarding exhaustion of local remedies.

Orders

  • Communication declared admissible.
  • No violation of Article 5 of the African Charter found.
  • No violation of Article 17 of the African Charter found.
  • No violation of Article 18 of the African Charter found.
  • No violation of Article 19 of the African Charter found.
  • No violation of Article 22 of the African Charter found.
  • No violation of Article 24 of the African Charter found.

Rules and key headnotes

Admissibility — Exhaustion of Local Remedies — Pending Eviction Proceedings
Where a counter-claim against government for alternative accommodation has been determined with finality by the highest court, and what remains is only an eviction application by private property owners that has no bearing on government's responsibility to provide housing, local remedies are considered exhausted for purposes of Article 56(5) of the African Charter.
Admissibility — Prima Facie Violation — Preliminary Proof
For purposes of admissibility under Article 56(2) of the African Charter, a complainant need only show preliminary proof that a violation occurred; there is no obligation to show with sufficient clarity the alleged violations, and the Commission is concerned only with whether there is a preliminary indication that a violation of a right protected under the Charter may have occurred.
Right to Dignity — Living Conditions — State Obligations
The right to live in dignity under Article 5 of the African Charter entails an obligation on State Parties to ensure that individuals and groups resident on its territory live under residential conditions that are personally conducive to life, habitation, and health, including regulation and monitoring of living conditions to prevent overcrowding, provision of basic services such as water, sanitation, and waste management.
Socio-Economic Rights — Progressive Realization — State Discretion
While socio-economic rights including housing, water, sanitation and hygiene are of immediate application, their realization is subject to available resources and the use of concrete and targeted plans; States have discretion as to how resources allocated for implementation are utilized, but this discretion should not be a limitation on the obligation to fulfil economic, social and cultural rights, and States are under a duty to expeditiously fulfil the socio-economic aspects of the right of vulnerable groups to live in dignity.
Burden of Proof — State Responsibility for Living Conditions
A State cannot be held responsible for the living conditions of complainants in an informal settlement where it did not authorize their accommodation in the first place; to establish a violation of socio-economic rights, complainants must sufficiently tie the State with liability for the conditions complained of.

Legislation cited (12)

  • African Charter on Human and Peoples' Rights Article 5
  • African Charter on Human and Peoples' Rights Article 17
  • African Charter on Human and Peoples' Rights Article 18
  • African Charter on Human and Peoples' Rights Article 19
  • African Charter on Human and Peoples' Rights Article 22
  • African Charter on Human and Peoples' Rights Article 24
  • African Charter on Human and Peoples' Rights Article 56
  • Constitution of the Republic of South Africa Section 26
  • Housing Act 107 of 1997 (South Africa)
  • Prevention of Illegal Eviction From and Unlawful Occupation of Land Act 19 of 1998 (South Africa)
  • Extension of Security of Tenure Act 62 of 1997 (South Africa)
  • Municipal Finance Management Act 56 of 2003 (South Africa)

Cases cited (8)

  • Ebrahim Dada NO & Others v Unlawful Occupiers
  • Purohit & Anor v The Gambia (2003) AHRLR 96 (ACHPR 2003)
  • Jawara v The Gambia (2000) AHRLR 107 (ACHPR 2000)
  • Prince v Republic of South Africa (2004) AHRLR 105 (ACHPR 2004)
  • Social and Economic Rights Action Centre v Nigeria (2001) AHRLR 60 (ACHPR 2001)
  • Majuru v Zimbabwe (2008) AHRLR 146 (ACHPR 2008)
  • Communication 333/2006 - Southern Africa Human Rights NGO Network & Others v Tanzania
  • John K. Modise v. Botswana (1997)

Full judgment

↓ Download PDF

The original judgment as reported. Read the original PDF before relying on any passage.

Monakali and Others v Republic of South Africa (Communication 377-09) [2023] ACHPR 5 (2 August 2023)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.