002/12_SO Delta International Investments SA, Mr.
AGL De Lange and Mrs. M. De Lange v. The Republic
of South Africa (Separate Opinion - Fatsah
Ouguergouz
IN THE MATTER
DELTA INTERNATIONAL INVESTMENTS S.A &Mr and Mrs AGL de LANG
V.
REPUBLIC OF SOUTH AFRICA
(Application N° 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 piano 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.
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