Brief Summary

Amicus Curiae — Application for admission as amicus curiae — Applicant seeks to intervene in high-profile criminal trial involving Jacob Zuma — Applicant alleges prosecutorial misconduct by Adv W J Downer SC, claiming it threatens the fairness of the trial — Legal issue of whether the applicant has locus standi and whether the court should permit intervention — Court holds that the applicant's proposed intervention is competent and necessary to ensure the integrity of the trial process, thus granting the application to be admitted as amicus curiae.

Comprehensive Summary

Summary of Judgment

1. Introduction

This judgment concerns an application by Ashin Ashok Kumar Singh to be admitted as an amicus curiae in the pending criminal proceedings of The State v Jacob Gedleyihlekisa Zuma and Others (with Thint Holdings (SA) (Pty) Ltd and Thint (Pty) Ltd as further accused). The applicant sought permission not only to participate as amicus, but also to lead evidence and make submissions in limine on the question whether Adv W J Downer SC should be interdicted from further participation in the prosecution team.

The application was launched on notice of motion dated 5 August 2008, issued by the Registrar on 1 September 2008, and served on the Director of Public Prosecutions, Pietermaritzburg on the same day. It was set down by the applicant for hearing on 12 September 2008. On 5 September 2008, before the intended hearing date, the applicant delivered a notice of withdrawal in which he tendered the State’s costs (if any). On that same date, the State delivered a detailed notice of opposition and subsequently filed answering affidavits.

Although the application had been withdrawn, the matter came before Nicholson J because the State set it down and pursued a costs order on a punitive scale, contending that the application was vexatious and an abuse of process. The dispute ultimately determined in this judgment therefore concerned the consequences of the withdrawn amicus application, particularly whether the circumstances justified an attorney-and-client costs order (including the costs of two counsel), and whether the State was entitled to have the withdrawal scrutinised through the lens of abuse of process.

The general subject-matter of the dispute was the applicant’s attempt to invoke the amicus curiae procedure in a high-profile criminal trial in order to place allegations of misconduct and dishonesty against a senior prosecutor before the court, and the State’s response that this was an improper use of process warranting punitive costs.

2. Material Facts

The applicant’s founding papers sought admission as amicus curiae for the stated limited purpose of placing before the trial court information concerning Adv Downer’s alleged prior conduct in relation to the applicant’s own earlier prosecution. The applicant alleged that the Zuma trial was of exceptional public importance, that the public interest required assurance of a fair trial, and that Downer’s participation posed a risk to perceived fairness due to alleged misconduct in the applicant’s prior matter.

The applicant’s background, as presented, included that he was initially a prosecutor and later a magistrate from 1994, seconded to the Investigating Directorate for Organised Crime (IDOC). He described involvement in aspects of investigations in the Richmond area, including matters connected to the Ndabazitha massacre, and alleged that after he provided information to his superior (Mr Chris MacAdam), he was dismissed from IDOC, suspended as a magistrate without a hearing, subjected to searches, and prosecuted on charges including defeating the ends of justice and contraventions of the Protection of Information Act 84 of 1982. He asserted that these prosecutions were malicious and that a permanent stay was granted by the Regional Court, which he characterised as tantamount to an acquittal. He further alleged that he instituted civil and criminal proceedings against various persons, including Downer.

A central plank of the applicant’s case was the allegation that, in the applicant’s prior prosecution, false evidence was led by MacAdam and that Downer, as prosecutor, allegedly knew it to be false. The applicant also alleged dishonesty concerning who drafted a charge sheet and whether Downer had lawful authority to prosecute him. In a related condonation context, the applicant advanced an additional allegation of dishonesty concerning statements said to have been made in Downer’s heads of argument about prosecutorial authorisation.

In response, the State delivered affidavits from Downer, MacAdam, and Petrus Karel Coetzee, comprehensively denying misconduct and providing explanations intended to demonstrate that neither impropriety nor moral blameworthiness existed. MacAdam alleged that the applicant had acted outside his mandate by interviewing an informer without proper authority, recording an IDOC meeting unlawfully (later broadcast on television), and conducting an unauthorised clandestine operation. On the State’s version, these and other matters formed part of the legitimate basis for ending the secondment and for the ensuing prosecution, and the suggestion of malice was strongly disputed. The State also provided explanations about the charge sheet process and the authorisation issues, including an account that a draft charge sheet was compiled by MacAdam but that the final product was Downer’s after changes, and that authorisation for prosecution under section 24(1)(d) of Act 84 of 1982 was signed by Mr Mpshe.

The court identified that the papers disclosed serious disputes of fact on material allegations, and that the applicant filed no replying affidavits to meet the denials and explanations advanced by the State.

The court also relied on procedural facts surrounding the launching and withdrawal of the application. The applicant issued papers dated 5 August 2008, served them only on 1 September 2008, and set the matter down for 12 September 2008, a date on which judgment was to be delivered in a Zuma-related application, in circumstances the court considered to be unacceptably short notice given the gravity of the allegations and the unusual nature of the relief sought. The court further accepted that the applicant allowed the press access to the papers before service. The State had already instructed attorneys and counsel and arranged a pre-hearing conference when the applicant withdrew the application.

The applicant did not unequivocally withdraw the allegations of dishonesty. Instead, correspondence showed that he declined to do so and indicated a view that he could pursue the allegations in another forum.

3. Legal Issues

The court was required to determine whether, notwithstanding the applicant’s withdrawal of the amicus curiae application, the State was entitled to pursue the costs consequences of that application, and whether the circumstances justified an award of attorney-and-client costs (including the costs of two counsel).

This required determination of interrelated questions involving both law and discretion, and the application of law to fact. These included whether Rule 41(1)(a) of the Uniform Rules (regulating withdrawal) applied in the context of a would-be amicus application associated with criminal proceedings; whether the application was to be treated as interlocutory criminal process or as sui generis ancillary proceedings in respect of which costs could competently be ordered; and whether there was a sufficient lis between the applicant and the State (and, in substance, between the applicant and Downer) to justify the court’s intervention on withdrawal and costs.

A further issue was whether the papers disclosed such disputes of fact that, to the extent the court needed to evaluate factual assertions for the costs inquiry, it should apply the Plascon-Evans approach. Related to that was the applicant’s argument that Plascon-Evans did not apply (or should apply differently) because he had withdrawn the main application and the matter was only before court on costs at the State’s insistence.

Finally, the court had to decide whether the application constituted an abuse of process and misuse of the amicus curiae procedure, which is a value-laden assessment bearing on the costs discretion, and whether this justified punitive costs in light of the nature of the allegations (attacking the honesty and integrity of a prosecutor) and the context in which they were publicised and advanced.

4. Court’s Reasoning

The court began by noting that the application (though withdrawn) had generated extensive answering material and that the applicant’s allegations were met by comprehensive denials and explanations. The court emphasised that the papers revealed serious disputes of fact, and that the applicant elected not to file replying affidavits. Where final relief is sought on motion in the face of factual conflicts, the court stated that the applicable approach is that described in Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A), namely that the matter must essentially be decided on the respondent’s version. The court rejected the applicant’s submission that Plascon-Evans should operate in the applicant’s favour because the main application had been withdrawn and the remaining dispute was costs: the court considered itself still seized with the application for purposes of the costs issue, and held that the onus remained on the applicant, who had initiated and set down the matter, to justify the relief he had sought and the manner in which he proceeded.

On the withdrawal point, the court considered the argument that Rule 41(1)(a) does not apply to criminal proceedings, and the reliance placed on De Lange v Provincial Commissioner of Correctional Services, Eastern Cape 2002 (3) SA 683 (SE). The court regarded the remarks in De Lange as obiter, and distinguished the situation there (a matter clearly characterised as criminal proceedings where inter partes costs were not contemplated) from the present proceedings. It characterised the present matter as sui generis, and more akin to ancillary proceedings than to ordinary interlocutory criminal proceedings. The court rejected the contention that there was no lis between the parties. It held that, in the ancillary proceedings, there was a dispute between the applicant and Downer (and the State) because the applicant had advanced strong allegations of dishonesty and lack of integrity—matters striking at core professional virtues. The court also reasoned that, even if the proceedings were not civil proceedings in the ordinary sense, Rule 41(1)(a) likely reflected the earlier common-law position, and that in the circumstances it would be unjust to permit the applicant to withdraw in a way that insulated him from an appropriate costs order, particularly given the press publicity and the tender of only ordinary costs.

In addressing the propriety of scrutinising the withdrawal, the court referred to Levy v Levy 1991 (3) SA 614 (A) for the general proposition that a court does not usually investigate reasons for abandonment. However, it relied on the recognised exception concerning abuse of process, and invoked the dictum in Hudson v Hudson and Another 1927 AD 259 that courts have a duty, exercised cautiously and only in a clear case, to prevent use of judicial machinery for ulterior purposes. Applying this, the court concluded that the application had been brought for ulterior purposes, namely as a vehicle to pursue a long-standing feud with Downer, rather than to perform the proper function of an amicus.

The court accepted that constitutional litigation and participatory democracy may justify hearing voices beyond the immediate parties, and that amici can assist courts by drawing attention to relevant law and facts not otherwise placed before the court. Nonetheless, it stressed that it remains a privilege to be joined as an amicus, and that an amicus bears duties to the court. The court held that this procedure should not be used as a means to continue a vendetta against a legal practitioner, particularly where the allegations are of such seriousness and public impact.

The court considered submissions on costs in relation to amici. It referred to Hoffman v South African Airways 2001 (1) SA 1 (CC) for the principle that an amicus is generally not a “loser” or “winner” and is generally not entitled to costs, and to President of the Republic of South Africa and Another v Modderklip Boerdery (Pty) Ltd (Agri SA and Others, amici curiae) 2005 (5) SA 3 (CC) for the proposition that it is unusual and rare to award costs in favour of an amicus, with the implication that costs against an amicus would similarly be unusual but possible where warranted. The court treated the present dispute as one where costs had effectively been conceded in principle through the tender, leaving the scale of costs and responsibility for costs occasioned by opposition as the main question.

In exercising the costs discretion, the court noted that when proceedings are withdrawn, costs “almost invariably” follow, citing Reuben Rosenblum Family Investments (Pty) Limited and Another v Marsubar (Pty) Limited (Forward Enterprises (Pty) Limited and Others Intervening) 2003 (3) SA 547 (C). It accepted the State’s position that it had a right and obligation to protect the integrity of the legal process and its officers, and that the applicant’s serious allegations required an answer. The court attached weight to the timing and publicity of the application, including the short notice, the connection to a date of major public interest in the Zuma matter, and the dissemination of papers to the press before service, concluding that the applicant’s plan was to obtain maximum publicity adverse to Downer.

Turning to punitive costs, the court relied on principles in Ernst & Young and Others v Beinash and Others 1999 (1) SA 1114 (W), which concerned persistent vexatious litigation, lack of bona fides, and unsubstantiated accusations of fraud and dishonesty. The court reasoned that the applicant’s allegations were in a similar vein because they imputed dishonesty and serious wrongdoing to Downer and, by extension, impugned the administration of justice. It also referred to Engineering Manufacturing Services v South Cape Corporation 1979 (3) SA 1343 (W) for the proposition that attorney-and-client costs may be awarded where the other side is put to unnecessary trouble and expense by conduct that is unreasonable and reprehensible, including scandalous allegations or unfounded allegations of mala fides.

Although the applicant had taken his complaints to numerous institutions and persons (which the court accepted he had a right to do), the court concluded that in this application the allegations were sufficiently reprehensible to justify attorney-and-client costs. The court reasoned that the State was entitled to respond fully; otherwise the court would not have had Downer’s and MacAdam’s versions before it. It concluded that the application was vexatious and an abuse of the court’s process and of the amicus procedure, and that the applicant’s proper avenue for pursuing his grievances lay in the existing civil action rather than via an attempted amicus intervention in the Zuma criminal trial.

5. Outcome and Relief

The court dismissed the application and ordered the applicant to pay the State’s costs, including the costs of two counsel where employed, on the attorney-and-client scale.

The practical effect was that the applicant was not afforded amicus curiae status, and the proceedings ended in an adverse punitive costs order against him notwithstanding the prior notice of withdrawal and tender of ordinary costs.

Cases Cited

Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A)

De Lange v Provincial Commissioner of Correctional Services, Eastern Cape 2002 (3) SA 683 (SE)

Levy v Levy 1991 (3) SA 614 (A)

Hudson v Hudson and Another 1927 AD 259

Hoffman v South African Airways 2001 (1) SA 1 (CC)

President of the Republic of South Africa and Another v Modderklip Boerdery (Pty) Ltd (Agri SA and Others, amici curiae) 2005 (5) SA 3 (CC)

Reuben Rosenblum Family Investments (Pty) Limited and Another v Marsubar (Pty) Limited (Forward Enterprises (Pty) Limited and Others Intervening) 2003 (3) SA 547 (C)

Ernst & Young and Others v Beinash and Others 1999 (1) SA 1114 (W)

Engineering Manufacturing Services v South Cape Corporation 1979 (3) SA 1343 (W)

Legislation Cited

Protection of Information Act 84 of 1982

Criminal Procedure Act 51 of 1977

Constitution of the Republic of South Africa, 1996

Rules of Court Cited

Uniform Rules of Court, Rule 16A

Uniform Rules of Court, Rule 41(1)(a)

Held

The court found that the papers disclosed serious disputes of fact and that, on motion proceedings for final relief, the approach in Plascon-Evans required reliance on the respondent’s version, particularly given the applicant’s failure to reply to answering affidavits.

The court treated the would-be amicus application as sui generis ancillary proceedings in which a real dispute existed between the applicant and the State (and in substance Downer), and held that it would be unjust to permit withdrawal to avoid scrutiny of costs consequences, particularly given the nature and publicity of the allegations.

The court held that the application constituted a vexatious abuse of process and a misuse of the amicus curiae procedure, aimed at advancing a vendetta against a legal practitioner in a context calculated to attract maximum publicity.

The court held that punitive costs were warranted and dismissed the application with attorney-and-client costs including the costs of two counsel where used.

LEGAL PRINCIPLES

A party seeking final relief on motion in the face of material disputes of fact is subject to the approach in Plascon-Evans, with the dispute ordinarily determined on the respondent’s version, especially where the applicant does not file a reply.

A court may scrutinise withdrawal of proceedings and depart from the general reluctance to investigate reasons for abandonment where the withdrawal and the proceedings bear indicia of abuse of process, in line with the cautious exercise of the court’s duty to prevent use of its procedures for ulterior purposes.

Admission as an amicus curiae is treated as a privilege accompanied by duties to assist the court with relevant law and facts not otherwise before it; the procedure should not be used as a platform for collateral disputes or vendettas against individuals involved in litigation.

Although costs orders involving amici are generally unusual, the court may, in appropriate circumstances, grant costs orders where the conduct surrounding the attempt to participate as amicus is found to be vexatious or abusive.

Attorney-and-client costs may be awarded as an expression of the court’s disapproval where conduct is unreasonable, reprehensible, vexatious, or constitutes an abuse of process, particularly where scandalous or unfounded allegations impugning honesty and integrity put the other party to unnecessary trouble and expense.

Zuma and Others v S (8652/2008) [2009] ZAKZPHC 34 (16 July 2009)