Wakilii

Van Heerden and Another v Republic of South Africa (Communication 747-21)

African Commission on Human and Peoples' Rights · [2024] ACHPR 14 · 2024 Communication Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Communication to the African Commission on Human and Peoples' Rights alleging violations of the African Charter arising from South African court decisions in a civil business dispute
Decision
Communication dismissed on the merits with no violations found

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The African Commission on Human and Peoples' Rights held that South Africa did not violate the complainants' rights under the African Charter. The courts applied established South African law requiring companies to be represented by registered legal practitioners, correctly denied legal aid in a civil matter where such aid is only available for criminal cases, lawfully joined a litigation funder to a costs order, and provided sufficient reasons when dismissing applications for leave to appeal. The complainants failed to demonstrate discriminatory treatment or judicial bias, as the courts applied general legal standards that would apply to any similarly situated litigant.

Outcome

Communication dismissed on the merits with no violations found

Facts

The complainants, a South African national and his company, were involved in a business dispute with DCD-Group Limited that proceeded to arbitration and subsequently to the South African High Court. The High Court refused to allow the first complainant to represent the company because he was not a registered legal practitioner, dismissed the company's application for legal aid on the basis that such aid is only available for criminal matters, and joined the first complainant to the costs order against the company as he was funding the litigation. The complainants appealed these decisions to the Supreme Court of Appeal and Constitutional Court, both of which dismissed their applications for leave to appeal on the grounds that the appeals had no reasonable prospects of success. The complainants then filed a communication with the African Commission alleging violations of multiple provisions of the African Charter, claiming they were discriminated against as self-representing litigants.

Issues

  1. Whether the South African courts violated the complainants' right to be heard under Article 7 of the African Charter by refusing to allow the first complainant to represent the second complainant.
  2. Whether the South African courts violated the complainants' right to be heard by dismissing the second complainant's application for legal aid.
  3. Whether the South African courts violated the complainants' right to be heard by joining the first complainant to the costs order made against the second complainant.
  4. Whether the Supreme Court of Appeal and Constitutional Court of South Africa violated the complainants' right to be heard by dismissing their application for leave to appeal without providing full reasons.
  5. Whether the South African courts discriminated against the complainants as self-representing litigants in violation of Articles 2 and 3 of the African Charter.
  6. Whether the complainants' rights under Articles 5, 9, 13, 19, 20, and 26 of the African Charter were violated by the conduct of the South African courts.

Orders

  • The Respondent State has not violated Articles 2, 3, 5, 7, 9, 13, 19, 20, or 26 of the African Charter on Human and Peoples' Rights.
  • The prayers of the Complainant are all dismissed.

Rules and key headnotes

Right to Be Heard — Legal Representation — Companies
A state does not violate the right to be heard under Article 7 of the African Charter when its courts apply a law of general application requiring companies to be represented by registered legal practitioners, provided the law is applied consistently to all similarly situated litigants without discrimination.
Right to Be Heard — Legal Aid — Civil Matters
Where a state's legal aid scheme provides assistance only for criminal matters and not civil disputes, the refusal to grant legal aid in a civil case does not violate Article 7 of the African Charter, as the courts act independently and impartially in applying the established legal framework.
Costs — Joinder of Non-Party Funders
A court does not violate the right to be heard or act with bias when it joins a non-party who funds litigation to a costs order, where such joinder is based on established legal precedent and would be applied to any other litigation funder in similar circumstances.
Appeals — Leave to Appeal — Reasons for Dismissal
Courts satisfy the requirement to provide reasons for their decisions under Article 7 of the African Charter when dismissing applications for leave to appeal by stating that the appeal has no reasonable prospects of success, even without issuing a comprehensive judgment, as the substantive issues would have been addressed by the lower court.
Discrimination — Self-Representing Litigants — Burden of Proof
To establish discrimination under Article 2 of the African Charter, complainants must prove that like cases received different treatment that was objectively and unreasonably unjustified; mere dissatisfaction with case outcomes or bare factual assertions of discrimination based on self-representation status are insufficient to meet this burden.
Equality Before the Law — Application of General Legal Standards
Article 3 of the African Charter guarantees that existing laws must be applied in the same manner to all persons subject to them; where courts apply established legislation and judicial precedent consistently to all similarly situated litigants, there is no violation of the right to equality before the law, regardless of whether the litigants are self-represented.
Peoples' Rights — Standing — Individual Complainants
Articles 19 and 20 of the African Charter protect peoples' rights, not individual rights; before the African Commission can find a violation of peoples' rights, it must satisfy itself that the complainants constitute a people within the meaning conferred by the Charter, and individuals appearing in their individual capacities cannot invoke these provisions.

Legislation cited (13)

  • African Charter on Human and Peoples' Rights Article 2
  • African Charter on Human and Peoples' Rights Article 3
  • African Charter on Human and Peoples' Rights Article 5
  • African Charter on Human and Peoples' Rights Article 7
  • African Charter on Human and Peoples' Rights Article 9
  • African Charter on Human and Peoples' Rights Article 13
  • African Charter on Human and Peoples' Rights Article 19
  • African Charter on Human and Peoples' Rights Article 20
  • African Charter on Human and Peoples' Rights Article 26
  • African Charter on Human and Peoples' Rights Article 55
  • African Charter on Human and Peoples' Rights Article 56
  • Legal Practice Act (South Africa) No. 28 of 2014 s.24(1)
  • Legal Aid South Africa Act No. 39 of 2014

Cases cited (29)

  • Nyikadzino (Represented by the Zimbabwe NGO Forum) v Zimbabwe (Communication 340/07)
  • Gabriel Shumba v Zimbabwe
  • FIDH & Others v Senegal (Communication 304/2005)
  • Michael Majuru v Zimbabwe (Communication 308/05)
  • Spilg and Mack & Ditshwanelo v Botswana (Communication 277/2003)
  • Senator Jean-Pierre Bemba Gombo v Democratic Republic of Congo (Communication 709/19)
  • Communication 266/03, 27 May 2009
  • Zimbabwe Lawyers for Human Rights & Associated Newspapers of Zimbabwe v Republic of Zimbabwe (Communication 284/03)
  • Sir Dawda K Jawara v Gambia (Communication 147/95-149/96)
  • Ahmed Ismael and 528 Others v Arab Republic of Egypt (Communication 467/14)
  • The Nubian Community in Kenya v Republic of Kenya (Communication 317/2006)
  • Human Rights Council and Others v Ethiopia (Communication 445/13)
  • Luke Munyandu Tembani and Benjamin John Freeth v Angola and Thirteen Others (Communication 409/12)
  • Bakweri Land Claims Committee v Cameroon (Communication 260/02)
  • Sudan Human Rights Organisation & Centre on Housing Rights and Evictions v Sudan (Communication 279/03-296/05)
  • Amini Juma v United Republic of Tanzania (Application 024/2016)
  • Yates Investment (Pty) Ltd v Commissioner for Inland Revenue (120/55) [1955] ZASCA 76
  • Kenneth Good v Republic of Botswana (Communication 313/05)
  • Egyptian Initiative for Personal Rights and Interights v Egypt (Communication 323/06)
  • Equality Now and Ethiopian Women Lawyers Association v Federal Republic of Ethiopia (Communication 341/07)
  • J represented by ISLA and KELIN v Republic of Namibia (Communication 734/19)
  • Peter Odiwuor Ngoge v Republic of Kenya (Communication 432/12)
  • Zimbabwe Lawyers for Human Rights and the Institute for Human Rights and Development (on behalf of Andrew Barclay Meldrum) v Republic of Zimbabwe
  • Kelvin Gunme and others v Republic of Cameroon (Communication 323/06)
  • Legal Resources Foundation v Zambia (Communication 211/98)
  • Sudanese Civilians in South Kordofan and Blue Nile v Sudan (Communication 402/11 & 420/12)
  • Article 19 v Eritrea (2007) AHRLR 73
  • Civil Liberties Organization, Legal Defense Centre and Legal Defense and Assistance Project v Nigeria (Communication 218/98)
  • Civil Liberties Organization v Nigeria (Communication 101/93)

Full judgment

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

Van Heerden and Another v Republic of South Africa (Communication 747-21) [2024] ACHPR 14 (6 November 2024)
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.