delta international investments sa and others v republic of south africa application no 0022012 2012 afchpr 121 30 march 2012

AFRICAN UNION UNION AFRICAINE UNIAO AFRICANA AFRICAN COURT ON HUMAN AND PEOPLES' RIGHTS COUR AFRICAINE DES DROITS DE L'HOMME ET DES PEUPLES IN THE MATTER OF: DELTA INTERNATIONAL INVESTMENTS SA, MR. AGL DE LANGE AND MRS. M. DE LANGE v. THE REPUBLIC OF SOUTH AFRICA. APPLICATION 002/2012 DECISION The Court composed of: Gerard NIYUNGEKO, President; Sophia A.B. AKUFFO, Vice-President; Modibo T. GUINDO, Fatsah OUGUERGOUZ, Augustine S.L. RAMADHANI , Duncan TAMBALA, Elsie N. THOMPSON and Sylvain ORE- Judges; and Robert ENO - Registrar, In the matter of: DELTA INTERNATIONAL INVESTMENTS SA, MR. AGL DE LANGE AND MRS. M. DE LANGE v. THE REPUBLIC OF SOUTH AFRICA. After deliberations, makes the following decision; 1. By an application dated 4 February 2012, received at the Registry on 8 February 2012, the Applicants, Delta International Investments SA, Mr. AGL De Lange and Mrs. M. De Lange, seized the Court with a petition against the Republic of South Africa, for alleged torture and violation of their rights to dignity, property, information, privacy and discrimination, contrary to the South African Constitution and the African Charter on Human and Peoples' Rights. 2. In accordance with the Protocol to the African Charter on Human and Peoples" Rights on the establishment of an African Court on Human and Peoples' Rights (hereafter referred to as the Protocol) and Rule 8 (2) of the Rules of Court (hereafter referred to as the Rules), Judge Bernard 2 M. Ngoepe, member of the Court, of South African nationality, recused himself. 3. Pursuant to the provisions of Rule 34 (1) of the Rules of Court, the Registrar, by letter dated 14 February 2012, acknowledged receipt of the application. 4. The Court first observes that in terms of Article 5(3) of the Protocol , it "may entitle relevant Non-Governmental organizations (NGOs) with observer status before the Commission, and individuals to institute cases directly before it, in accordance with article 34 (6) of this Protocor,. 5. The Court further notes that Article 34(6) of the Protocol provides that "At the time of the ratification of this Protocol or any time thereafter, the State shall make a declaration accepting the competence of the Court to receive cases under article 5 (3) of this Protocol. The Court shall not receive any petition under article 5 (3) involving a State Party which has not made such a declaration,. 6. By letter dated 30 March 2012 , the Registrar inquired from the Legal Counsel of the African Union Commission if the Republic of South Africa has made the Declaration required under Article 34 (6) of the Protocol. 7. By email dated 12 April 2012, the Legal Counsel of the African Union Commission informed the Registrar that the Republic of South Africa had not made such a declaration. 8. The Court observes that the Republic of South Africa has not made the Declaration under Article 34 (6). 9. In view of Articles 5(3) and 34 (6) of the Protocol, it is evident that the Court manifestly lacks jurisdiction to receive the Application submitted 3 /(@ by Delta International Investments SA, Mr. AGL De Lange and Mrs. M. De Lange, against the Republic of South Africa. 10. For these reasons, THE COURT, Unanimously: Decides that pursuant to Articles 5 (3) and 34 (6) of the Protocol, it manifestly lacks jurisdiction to receive the Application submitted by Delta International Investments SA, Mr. AGL De Lange and Mrs. M. De Lange, against the Republic of South Africa , and the Application is accordingly struck out from the general list of the Court. Done at Arusha, this thirtieth day of March, Two Thousand and Twelve, in English and French, the English text being authoritative. Signed: Robert ENO, Registrar In conformity with Article 28 (7) of the Protocol and Rule 60 (5) of the Rules of Court, Judge Fatsah OUGUERGOUZ appended a separate opinion to the present decision. 4 AFRICAN UNION UNION AFRICAINE UNIAO AFRICANA AFRICAN COURT ON HUMAN AND PEOPLES' RIGHTS COUR AFRICAINE DES DROITS DE L'HOMME ET DES PEUPLES IN THE MATIER DELTA INTERNATIONAL INVESTMENTS S.A. & Mr and Mrs AGL de LANG V. REPUBLIC OF SOUTH AFRICA (Application No 002/2012) SEPARATE OPINION OF JUDGE FATSAH OUGUERGOUZ 1. I am of the opinion that the application filed by Delta International Investments S.A. & Mr and Mrs AGL de Lang against the Republic of South Africa must be rejected. However, the lack of jurisdiction ratione personae of the Court being manifest, the application should not have been dealt with by a decision of the Court; rather, it should have been rejected de plano by a simple letter of the Registrar (see my reasoning on this matter in my separate opinions appended to the decisions in the cases of Michelot Yogogombaye v. Republic of Senegal, Effoua Mbozo Samuel v. Pan African Parliament, National Convention of Teachers ' Trade Union (CONASYSED) v. Republic of Gabon , as well as in my dissenting opinion appended to the decision rendered in the matter Ekollo Moundi Alexandre v. Republic of Cameroon and Federal Republic of Nigeria . 2. Indeed, I am not in favour of the judicial consideration of an application filed against a State Party to the Protocol which has not made the declaration accepting the compulsory jurisdiction of the Court to receive applications from individuals and non-governmental organizations, or against any African State which is not party to the Protocol or which is not a member of the African Union , as was the case in several applications already dealt with by the Court. 3. By proceeding with the judicial consideration of the present application lodged against the Republic of South Africa, the Court failed to take into account the interpretation, in my view correct, which it initially gave of Article 34(6) of the Protocol in paragraph 39 of its very first judgment in the case concerning Michelot Yogogombaye v. Republic of Senegal. In that judgment, the Court indeed stated what follows: "the second sentence of Article 34 (6) of the Protocol provides that [the Court] "shall not receive any petition under article 5 (3) involving a State Party which has not made such a declaration" (emphasis added). The word "receive" should not however be understood in its literal meaning as referring to "physically receiving" nor in its technical sense as referring to "admissibility". It should instead be interpreted in light of the letter and spirit of Article 34 (6) taken in its entirety and , in particular, in relation to the expression "declaration accepting the competence of the Court to receive applications [emanating from individuals or NGOs]" contained in the first sentence of this provision. It is evident from this reading that the objective of the aforementioned Article 34 (6) is to prescribe the conditions under which the Court could hear such cases; that is to say, the requirement that a special declaration should be deposited by the concerned State Party, and to set forth the consequences of the absence of such a deposit by the State concerned". 4. It is evident that by giving a judicial treatment to an application and delivering a decision on the said application, the Court actually "received" the application in the sense that it interpreted the verb "receive" in the abovementioned paragraph 39, that is that the Court has actually examined 1 the application even though it concluded that it does not have jurisdiction to entertain it; however, according to its interpretation of Article 34 (6), the Court should not examine an application if the State Party concerned has not made the optional declaration. 5. It should further be observed that the Court gave a judicial consideration to the application filed by Delta International Investments S.A. & Mr and Mrs AGL de Lang without transmitting it to South Africa, nor even informing this State that an application had been lodged against it. The adoption by the Court of a judicial decision under such circumstances amounts to a violation of the adversarial principle (Audiatur et altera pars) , which principle must 1 The French text of the last sentence of paragraph 39 of the Yogogombaye Judgment, which is the authoritative one, refers to the examination of the applications («pour que Ia Cour puisse connaltre de telles req uetes») and not to the «hearing of the cases» as it is mentioned in the English text («conditions under which the Court could hear such cases»). apply at any stage of the proceedings. This breach of fairness and equality of arms is all the more remarkable given that the application lodged by Delta International Investments S.A. & Mr and Mrs AGL de Lang was, upon receipt, publicized on the website of the Court. 6. Failure to transmit the application to South Africa also deprived that State of the possibility to accept the jurisdiction of the Court by way of forum prorogatum (on this question , see my separate opinion in the case concerning Michelot Yogogombaye v. Republic of Senegal) . Robert Eno Registrar