Brief Summary

Amicus Curiae — Admission of amicus curiae — Application by Institute for Security Studies (ISS) for admission as amicus curiae in proceedings against Dr Basson — ISS sought to provide submissions on international criminal law and human security — Respondent opposed admission on grounds that issues were not before the Court and had been adequately addressed by the state — Court held that admission of amicus curiae is subject to principles of relevance and usefulness of submissions, and that consent of all parties does not guarantee admission — Application for admission refused as ISS failed to demonstrate that its submissions would provide a different perspective or raise new contentions.

Comprehensive Summary

Summary of Judgment

1. Introduction

This judgment concerns an interlocutory application in the Constitutional Court for admission as amicus curiae by the Institute for Security Studies (ISS) in pending criminal appeal proceedings involving The State v Basson.

The ISS was the applicant seeking amicus status. The State (as appellant/party seeking to advance the prosecution position in the underlying proceedings) consented to the ISS’s participation. Dr Wouter Basson (the respondent/accused in the underlying criminal matter) declined to consent and opposed the application.

Procedurally, the ISS first sought admission on the basis of party consent, but because consent was not unanimous, it applied to the Chief Justice for admission as amicus. The application was argued on 1 December 2004. The Court refused the application on 2 December 2004, indicating that reasons would follow. The present judgment, delivered on 9 September 2005, provides those reasons.

The general subject-matter of the underlying dispute (in which the ISS sought to intervene) related to the prosecution of alleged conduct implicating international crimes, including crimes against humanity, and issues concerning conspiracy charges and the extraterritorial reach of South Africa’s duty to prosecute international crimes. However, the present judgment is confined to whether, and on what basis, the ISS should be admitted as an amicus in the Constitutional Court proceedings.

2. Material Facts

The ISS is described by the Court as a research organisation concerned with human security in Africa, engaged in research and advocacy, and having a particular interest in international criminal law. It relied on its research work concerning the implementation of the Rome Statute in South Africa and Africa, and contended it could provide a “different perspective” on the issues in the matter.

It was undisputed that the State gave the necessary consent to the ISS’s participation but that Dr Basson refused consent and opposed the ISS’s application for admission as an amicus.

The ISS indicated that it sought to address three broad themes, namely the role of crimes against humanity in South Africa’s history, the correctness of the dismissal of conspiracy-related charges, and the extraterritorial scope of a constitutional duty to prosecute international crimes. The ISS stated that it did not suggest that it would raise new matters, but asserted that it would provide a different perspective by addressing, among other things, the development of individual criminal responsibility under international law; the development of the duty to prosecute (or extradite) perpetrators of international crimes; consequences of a failure to prosecute; the absence of immunity for officials; the extraterritorial effect of amnesties (including those granted by the Administrator-General of Namibia); and consequences linked to South Africa’s foreign policy commitments.

The respondent’s opposition relied materially on two propositions. First, it was contended that issues relating to the quashing of certain charges (including conspiracy charges) were not before the Constitutional Court, because they had been abandoned by the State and because the Supreme Court of Appeal had refused condonation for an attempt to raise them. Second, it was contended that the issues the ISS sought to canvass had in substance already been canvassed by the State in its written submissions.

A further material fact relied upon by the Court was that, in its written submissions, the State had devoted extensive argument (described as some sixty pages) to customary international law crimes and related topics, including the historical development and recognition of crimes against humanity and war crimes, instruments and sources culminating in the Rome Statute and its domestic implementation, and also the extraterritorial effect of the Namibian amnesty.

3. Legal Issues

The central legal questions were whether the ISS met the requirements for admission as an amicus curiae under rule 10 of the Constitutional Court Rules, and whether the Court, in the exercise of its discretion, should allow the intervention.

A further issue of legal interpretation arose from the structure of rule 10, namely whether a party who has obtained consent from all parties is thereby automatically admitted as an amicus, or whether (even with consent) the Court retains control and must still determine whether the underlying requirements for amicus participation are satisfied.

The dispute primarily concerned the application of legal standards to the facts (whether the proposed submissions were relevant, useful, and different from the parties’ submissions), together with the Court’s discretionary evaluative judgment about what is in the interests of justice, especially in the context of a criminal appeal where fairness to an accused person is a salient consideration.

4. Court’s Reasoning

The Court approached the matter by setting out the governing framework in rule 10, emphasising that an amicus is a friend of the court whose role is to assist by offering submissions on law or relevant facts that would help the Court in a way it would not otherwise be assisted.

Although rule 10 contains provisions dealing with admission by consent (rule 10(1)) and admission by application to the Chief Justice where consent is lacking (rule 10(4)), the Court stressed that admission does not follow automatically from consent. The Court highlighted that it retains a discretion and must ensure that the foundational principles for amicus participation are met. Those principles were identified as whether the proposed submissions are relevant to the issues before the Court, useful to the Court, and different from those advanced by the parties, in the sense that they raise new contentions and do not repeat what is already covered, consistent with rule 10(7).

In explaining the continued control of the Court over amicus participation, the Court relied on its earlier approach in Fose v Minister of Safety and Security. It reasoned that even where consent is obtained, the Court’s supervisory role is preserved because the terms and conditions of participation are subject to judicial control and amendment, and because admission is ultimately dependent on whether the substantive criteria for useful, distinct assistance are met. The Court considered that a reading of rule 10 that treated consent as sufficient for admission would undermine that control.

The Court further reasoned that compliance with rule 10(6)(c) requires more than general assertions that submissions will be helpful. Because it can be difficult to assess usefulness and distinctness from mere allegations, the Court indicated that, ordinarily, an amicus application should be accompanied by a summary of the written submissions intended to be advanced. This enables both the parties and the Court to evaluate properly whether the intervention will contribute something not otherwise available. The Court noted that failure to provide what is necessary for this assessment may result in refusal where the required matters are not readily ascertainable.

The Court placed this explanation in a broader practical context, expressing concern that, historically, parties had sometimes granted consent “for the mere asking” and emphasising that both parties and prospective amici should apply their minds to the principles governing admission. The Court also stated that prior admission as an amicus in another court does not itself entitle a person to admission in the Constitutional Court.

Turning to the ISS’s proposed intervention, the Court assessed whether the ISS would raise distinct, useful contentions. It found that the central issues the ISS sought to address had already been extensively covered in the State’s written argument, including the history and status of customary international crimes, the Rome Statute and its domestic implementation, and the extraterritorial effect of the Namibian amnesty. On that basis, the Court concluded it was apparent that the main focus of the ISS’s intended submissions was already canvassed, and that the ISS did not, and could not, allege that it would raise new contentions not raised by the parties.

The Court added that, to the extent some contentions were not dealt with, further directions were later issued by the acting Chief Justice calling upon the parties themselves to consider and, if necessary, lodge further argument. This reduced any need for additional assistance from an amicus on those points.

Finally, the Court treated the criminal character of the underlying matter as a significant contextual factor. It stated that, as a general matter, courts should be astute not to allow amicus submissions to “stack the odds” against an accused person. While the Court did not treat this as an inflexible rule, it considered it a factor grounded in fairness, equality of arms, and the interests of justice. Given the already wide-ranging and complex issues the respondent had to meet on appeal, and the limited additional value of the ISS’s proposed submissions, the Court concluded that admission would not be in the interests of justice.

5. Outcome and Relief

The Constitutional Court refused the ISS application for admission as amicus curiae.

The judgment, as provided, records no separate costs order in relation to the amicus application.

Cases Cited

In re Certain Amicus Curiae Applications: Minister of Health and Others v Treatment Action Campaign and Others 2002 (5) SA 713 (CC); 2002 (10) BCLR 1023 (CC).

Fose v Minister of Safety and Security [1997] ZACC 6; 1997 (3) SA 786 (CC); 1997 (7) BCLR 851 (CC).

Legislation Cited

Rome Statute of the International Criminal Court Act 27 of 2002.

Rules of Court Cited

Rule 10 of the Rules of the Constitutional Court of South Africa.

Rule 31 of the Rules of the Constitutional Court of South Africa.

Rule 1(3) of the Rules of the Constitutional Court of South Africa.

Rule 9 of the Rules of the Constitutional Court of South Africa (referred to in the quotation from Fose v Minister of Safety and Security).

Held

The Court held that admission as an amicus curiae is not automatic, even where consent is obtained, because the Court retains a discretion to ensure that the proposed submissions are relevant, useful, and different from those of the parties, and that they raise new contentions rather than duplicating existing argument.

On the facts, the Court found that the issues the ISS sought to address were substantially already covered by the State’s written submissions, that any residual matters could be addressed by the parties pursuant to further directions, and that in a criminal appeal the Court must exercise caution to avoid unfairly strengthening the case against an accused. In these circumstances, it was not in the interests of justice to admit the ISS as amicus, and the application was refused.

LEGAL PRINCIPLES

The judgment affirms that the Constitutional Court has a discretionary power and duty to control amicus participation and to admit an amicus only where the proposed intervention will assist the Court on the issues it must decide. The core criteria are that the submissions must be relevant to the issues, useful to the Court, and distinct from what the parties advance, in the sense of raising new contentions and not repeating existing argument.

The judgment further establishes, as a matter of the proper construction and operation of rule 10, that party consent does not guarantee admission. Consent is treated as a factor in the discretionary assessment rather than a determinant of outcome, and the Court retains supervisory control to prevent unnecessary or unhelpful interventions.

In addition, the judgment articulates a procedural expectation that amicus applications should ordinarily be supported by sufficient material—typically a summary of the proposed written submissions—to enable the Court and the parties to assess compliance with rule 10(6)(c) and the underlying principles. A failure to provide what is needed for this assessment may justify refusal.

Finally, the judgment recognises a fairness-based consideration particularly salient in criminal proceedings: while not absolute, there is a need for caution where amicus submissions may effectively strengthen the case against an accused, implicating fairness, equality of arms, and the interests of justice.

Institute for Security Studies In Re S v Basson (CCT30/03B) [2005] ZACC 4; 2006 (6) SA 195 (CC); 2006 (2) SACR 350 (CC) (9 September 2005)