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[2012] ZACC 25
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Children's Institute v Presiding Officer of the Children's Court, District of Krugersdorp and Others (CCT 69/12) [2012] ZACC 25; 2013 (1) BCLR 1 (CC); 2013 (2) SA 620 (CC) (9 October 2012)

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CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case
CCT 69/12
ZACC
25
In
the matter between:
CHILDREN’S
INSTITUTE
.................................................................................
Applicant
and
PRESIDING
OFFICER OF THE CHILDREN’S COURT,
DISTRICT
OF KRUGERSDORP
............................................................
First
Respondent
MINISTER
OF SOCIAL DEVELOPMENT
.......................................
Second
Respondent
MEMBER
OF THE EXECUTIVE COUNCIL FOR HEALTH
AND
SOCIAL DEVELOPMENT, GAUTENG
.....................................
Third
Respondent
SS
..........................................................................................................
Fourth
Respondent
Heard
on : 18 September 2012
Decided
on : 9 October 2012
JUDGMENT
KHAMPEPE
J (
Mogoeng CJ, Moseneke DCJ, Cameron J, Froneman J, Jafta J,
Nkabinde J, Skweyiya J, Van der Westhuizen J, Yacoob J and
Zondo
J concurring
):
Introduction
The
central question in this appeal is whether Rule 16A
1
of the Uniform Rules of Court (Uniform Rules), properly
interpreted, permits High Courts to allow a friend of the court

(amicus curiae) to adduce evidence in support of the submissions it
seeks to advance. If Rule 16A does not provide for the adduction
of
evidence by an amicus, a secondary question is whether a High
Court’s inherent power under section 173 of the Constitution

to regulate its own process allows it to hear evidence tendered by
an amicus.
2
The
South Gauteng High Court, Johannesburg (High Court) held that in
terms of Rule 16A an amicus may not.
3
It further held that a High Court may not use its inherent power to
regulate its own process under section 173 to allow an
amicus to
adduce evidence because to do so would amount to creating a new
substantive right. The amicus in that matter, the
Children’s
Institute at the University of Cape Town
4
(Children’s Institute), was refused leave to appeal in both
the High Court and the Supreme Court of Appeal. The first,
second,
third and fourth respondents have filed notices to abide by this
Court’s decision.
Background
This
appeal arises out of an enquiry whether SS, the fourth respondent,
a minor orphan living with his great-aunt and great-uncle,
5
was “in need of care and protection” as defined under
section 150(1)(a) of the Children’s Act
6
and therefore whether his caregivers were eligible for a foster
child grant.
7
SS,
together with his great-aunt and his great-uncle, applied to the
Children’s Court to have SS declared a “child
in need
of care and protection” under the Children’s Act in
order to receive a foster child grant of up to R770.
This grant is
significantly greater than the child support grant of up to R280
made in respect of many other poor children.
8
The Children’s Court refused the application, finding that SS
was not a child in need of care and protection under the
Children’s
Act. The Court reasoned that there was no need to regulate a
situation in which the child was placed with
family members.
On
appeal in the High Court, the Children’s Institute sought to
be admitted as an amicus curiae. According to the Children’s

Institute, an outcome upholding the Children’s Court’s
decision would result in approximately 350 000 orphaned
children
who live with family members losing the foster child grants
currently being received.
The
Children’s Institute made an application to the High Court to
adduce evidence. It sought to lead evidence of a statistical
nature
to demonstrate why orphaned children living with family members
should qualify for foster child grants. The application
was
refused.
High
Court interpretation of Rule 16A
The
admission of amici curiae is governed by Rule 16A. The Rule
provides, in relevant part:
“
(2)
Subject to the provisions of national legislation enacted in
accordance with section 171 of the Constitution of the Republic
of
South Africa, 1996 (Act 108 of 1996), and these rules, any
interested party in a constitutional issue raised in proceedings

before a court may, with the written consent of all the parties to
the proceedings, given not later than 20 days after the filing
of
the affidavit or pleading in which the constitutional issue was
first raised, be admitted therein as
amicus
curiae
upon
such
terms
and conditions as may be agreed upon in writing by the parties
.
(3)
The written consent contemplated in subrule (2) shall, within five
days of its having been obtained, be lodged with the registrar
and
the
amicus curiae
shall, in addition to any other provision,
comply with the times agreed upon for the lodging of written
argument.
(4)
The terms and conditions agreed upon in terms of subrule (2) may
be amended by the court.
(5)
If the interested party contemplated in subrule (2) is unable to
obtain the written consent as contemplated therein, he or
she may,
within five days of the expiry of the 20-day period prescribed in
that subrule, apply to the court to be admitted as
an
amicus
curiae
in the proceedings.
(6)
An application contemplated in subrule (5) shall—
(a)
briefly describe the interest of the
amicus curiae
in the
proceedings;
(b)
clearly and succinctly set out the
submissions
which will be
advanced by the
amicus curiae
, the relevance thereof to the
proceedings and his or her reasons for believing that the
submissions will assist the court and
are different from those of
the other parties; and
(c)
be served upon all parties to the proceedings.
(7)
(a) Any party to the proceedings who wishes to oppose an application
to be
admitted
as an
amicus curiae
, shall file an answering affidavit within
five days of the service of such application upon such party.
(b)
The answering affidavit shall clearly and succinctly set out the
grounds of such opposition.
(8)
The court hearing an application to be admitted as an
amicus
curiae
may refuse or grant the application upon such
terms and conditions as it may determine
.
(9)
The court may dispense with any of the requirements of this rule if
it is in the interests of justice to do so.” (Emphasis
added.)
The
High Court found that Rule 16A only permits an amicus curiae to be
admitted to the proceedings but prohibits it from leading
evidence:
“
I
am of the view that pursuant to Uniform Rule 16A(2) an interested
party may be admitted as
amicus
curiae
in
proceedings by the court after exercising its discretion judicially
whether to admit a party to the proceedings after consideration
of
all the relevant facts. The admission of additional facts is an
entirely different question as
there
is no provision in Rule 16A for the admission of such evidence
.
”
9
(Emphasis
added.)
The
High Court accordingly concluded that High Courts have no power
under the Uniform Rules to receive evidence from an amicus
and are
limited to receiving argument only.
10
The
High Court further indicated that a court’s inherent power
under section 173 of the Constitution to regulate its own
process
did not include the reception of additional evidence from an
amicus. It found that the admission of evidence would
amount to the
creation of a new right for an amicus.
11
Leave
to appeal
The
matter involves the proper interpretation of the nature and ambit
of the High Courts’ powers under Rule 16A in relation
to the
reception of evidence by an amicus. Rule 16A itself points to the
role that amici play in constitutional litigation
by referring to
“any interested party in a constitutional issue”. This
matter also implicates the proper interpretation
and application of
section 173 of the Constitution. These are constitutional issues of
substance.
It
is in the interests of justice to grant leave to appeal given the
significant role played by amici in the administration
of justice
12
and the restrictive effect of the High Court judgment on the
ability of amici to adduce evidence and render appreciable

assistance to courts in effectively administering justice.
Furthermore,
it is important to address two preliminary matters, namely,
mootness and appealability of an interlocutory order.
I am
satisfied that neither serves as a hurdle to this Court’s
ability to hear this matter.
On
the question of mootness, even though the underlying case
concerning SS has been resolved without the assistance of
additional
evidence from the Children’s Institute,
13
it cannot be said that the issue is moot with regard to other amici
seeking to adduce evidence in the High Court. Since the
decision of
the High Court was made by a full bench, it will be highly
persuasive to judges hearing an application of this
sort and is
binding on judges in the South Gauteng High Court, Johannesburg.
Under these circumstances, the potential limitation
on amici’s
ability to adduce evidence and therefore render effective
assistance to courts in the future, is significantly
crippled. This
is further exacerbated by the fact that the Supreme Court of Appeal
refused leave to appeal. This means that
the High Court’s
decision stands and is binding.
Counsel
for the Children’s Institute emphasised, in argument, that as
a result of the High Court judgment amici have been
hesitant, on
the strength of this decision, to apply for leave to adduce
evidence. Given the important role played by amici
curiae in
advocating on behalf of vulnerable groups, clarity on the question
of their ability to adduce evidence is warranted.
This Court has
found that amici curiae have made and continue to make an
invaluable contribution to its jurisprudence and that
their
participation in litigation is to be welcomed and encouraged.
14
It is patent that a decision on this appeal will continue to have
an important and far reaching practical effect.
15
On
the question of appealability, this too presents no hurdle to the
determination of this application. As the Children’s

Institute points out, refusing an amicus leave to adduce evidence
will generally be an interlocutory order. Given the importance
of
the constitutional issues to be determined in this matter and
because the order is final in effect, it is in the interests
of
justice that we grant leave to appeal against this interlocutory
order.
16
Substantive
issue
Properly
interpreted, Rule 16A is in my view permissive and allows for an
amicus to adduce evidence. Both a textual and purposive

interpretation of the Rule support this conclusion. In any event,
even if Rule 16A does not provide for evidence to be adduced
by an
amicus, section 173 of the Constitution gives courts the inherent
power to regulate their own process and this includes
the ability
to allow amici to adduce evidence if the interests of justice so
demand. The High Court’s reliance on the
decision in
Oosthuizen v Road Accident Fund
,
17
to conclude that to do so would amount to the creation of a new
right, is misplaced.
18
I
begin with a textual analysis of Rule 16A, followed by an
examination of both the purpose of Rule 16A as well as the role
of
amici curiae in court proceedings. I conclude by clarifying the
courts’ inherent power under section 173 of the Constitution

as it relates to this case.
Textual
analysis of Rule 16A
Rule
16A read as a whole
19
provides courts with a great deal of discretion in determining
whether to admit amici and, more importantly, the terms and

conditions under which they may participate in court proceedings.
The
Rule can conceptually be divided into two broad parts: subrules (2)
to (4) govern an agreement between the parties on terms
and
conditions for the admission of an amicus, while subrules (5) to
(8) in turn regulate a disagreement between the parties.
Under
either course, the Rule makes it clear that the court makes the
final determination on what terms and conditions are
set for the
admission of amici. Subrule (4) allows the court to amend the terms
and conditions decided upon by the parties,
whilst subrule (8)
empowers the court itself to determine the terms and conditions. In
order to lay emphasis on the wide discretion
a High Court enjoys,
subrule (9) provides that a court “may dispense with any of
the requirements of this rule if it
is in the interests of justice
to do so.” Therefore, the only limitation on a court’s
discretion to dispense with
any of the requirements of the Rule, is
whether it is in the interests of justice to do so.
The
High Court relied on the fact that the Rule mentions “submissions”
but not “evidence” to conclude
that the Rule must
necessarily be narrowly interpreted to include submissions only.
Given the Rule’s emphasis on the
court’s discretion to
set terms and conditions, this narrow interpretation is, in my
view, misguided. First, as the Children’s
Institute rightly
contends, the Rule makes no mention of “oral”
submissions and yet courts, including the South
Gauteng High Court,
Johannesburg, routinely permit an amicus to make oral submissions.
Second,
there is nothing in the Rule to suggest that the term “submissions”
is limited only to written (or oral)
arguments. This interpretation
is bolstered by the fact that other High Court decisions, including
decisions of the South Gauteng
High Court, have concluded that an
amicus may adduce evidence.
20
For instance, in
Engelbrecht
,
the South Gauteng High Court
treated the
term “submissions” to include “background
information not supplied by the original parties, thus
enabling the
Court to make decisions confident of their social consequences”.
21
Therefore, “submissions” ought to be
interpreted to include written or oral argument, or evidence.
Thus,
properly construed, the phrase “terms and conditions as it
may determine” in Rule 16A(8) empowers a High Court
to admit
any “submissions” by an amicus and to determine whether
those submissions will include: (a) written argument,
and if so, to
what extent; (b) oral argument, and if so, the duration thereof;
and (c) the nature and extent of the evidence
sought to be led, and
if so, under what conditions. In making these determinations the
Court will obviously be guided by what
is in the interests of
justice.
Moreover,
the wording of subrule (9) is permissive. It empowers a court to
dispense with any of the requirements of the Rule
if it is in the
interests of justice to do so. On a textual reading of the Rule,
therefore, the High Court’s conclusion
that evidence by an
amicus could never be adduced under any circumstances is incorrect.
My textual interpretation is fortified
by the purpose of the Rule.
Purpose
of Rule 16A and the role of an amicus curiae
Counsel
for the Children’s Institute emphasised in oral argument that
Rule 16A was intended to facilitate admission of
amici curiae. I
agree. Before the introduction of Rule 16A and its counterpart,
Rule 10 of the Constitutional Court Rules,
22
there were no formal rules guiding courts on the admission of an
amicus curiae.
23
Courts consequently took a fairly narrow approach to the admission
of amici and there were no clear provisions for intervention
in
public interest matters.
24
The purpose of Rule 16A was to remedy this lacuna in the law with
an appreciation that “constitutional cases often have

consequences which go far beyond the parties concerned.”
25
Thus,
the role of an amicus envisioned in the Uniform Rules is very
closely linked to the protection of our constitutional values
and
the rights enshrined in the Bill of Rights. Indeed, Rule 16A(2)
describes an amicus as an “interested party in a
constitutional issue
raised in proceedings”.
26
Therefore, although friends of the court played a variety of roles
at common law, the new Rule was specifically intended to
facilitate
the role of amici in promoting and protecting the public interest.
27
In these cases, amici play an important role first, by ensuring
that courts consider a wide range of options and are well
informed;
28
and second, by increasing access to the courts by creating space
for interested non-parties to provide input on important public

interest matters, particularly those relating to constitutional
issues.
29
As this Court has noted:
“
The
role of an
amicus
is
to draw the attention of the Court to relevant matters of law and
fact to which attention would not otherwise be drawn. In
return for
the privilege of participating in the proceedings without having to
qualify as a party, an
amicus
has
a special duty to the Court. That duty is to provide cogent and
helpful submissions that assist the Court.”
30
The
role of a friend of the court can, therefore, be characterised as
one that assists the courts in effectively promoting and
protecting
the rights enshrined in our Constitution. Section 39(2) of the
Constitution requires that when interpreting any
legislation,
courts must promote the “spirit, purport and objects of the
Bill of Rights.” Where there are two reasonable

interpretations of a provision, section 39(2) mandates a court to
prefer the interpretation that better promotes the spirit,
purport
and objects of the Bill.
31
In public interest matters, like the present case, allowing an
amicus to adduce evidence best promotes the spirit, purport
and
objects of the Bill of Rights. Therefore, the correct
interpretation of Rule 16A must be one that allows courts to
consider
evidence from amici where to do so would promote the
interests of justice.
Finally,
it is true that Rule 16A does not explicitly mention “evidence”.
However, the Rules of the Constitutional
Court provide that an
amicus may, where appropriate, adduce evidence under Rule 31. It
states, in relevant part:
“
(1)
Any party to any proceedings before the Court and an
amicus
curiae
properly
admitted by the Court in any proceedings shall be entitled, in
documents lodged with the Registrar in terms of these
rules, to
canvass factual material that is relevant to the determination of
the issues before the Court and that does not specifically
appear on
the record: Provided that such facts—
(a)
are common cause or otherwise incontrovertible; or
(b)
are of an official, scientific, technical or statistical nature
capable of easy verification.”
32
The
High Court’s decision consequently leads to the paradoxical
result that an appellate court may hear new evidence that
High
Courts may not. This cannot be the case. Courts of first instance
must be permitted to admit evidence from an amicus curiae
to avoid
a situation where appellate courts are inundated with new evidence.
In principle, courts of first instance should
strive to accommodate
the reception of evidence if this would be in the interests of
justice. They should not knowingly leave
relevant evidence that
could have been received by them to be adduced at the appellate
level. This is because appeals are generally
limited to the record
of the court below. Accordingly, the fact that the Constitutional
Court, as a court of appeal, is permitted
to admit evidence adduced
by amici curiae further lends support to the notion that courts of
first instance must be permitted
to do the same.
Indeed,
it is generally not in the interests of justice for this Court to
sit as a court of first and final instance in relation
to new
issues or factual material. Yet the judgment of the High Court
makes this position far more likely in relation to evidence
adduced
by an amicus. This is particularly problematic because cases in
which amici are involved often affect our children,
the vulnerable,
the marginalised and the indigent. And a High Court would, like in
this case, be unable to admit evidence tendered
by an amicus even
if it were necessary to do so in the exercise of the Court’s
responsibility as the upper guardian of
all children. This would be
patently unjust.
It
is trite that evidence comprises statements made in court under
oath, affirmation, or warning and includes documents produced
and
received in court, whilst argument is merely persuasive comment
made by the parties or their legal representatives in regard
to
questions of fact or law. Importantly, the persuasive comment of an
amicus will often draw on broader considerations, and
thus be
premised on facts and evidence not before the court, including
statistics and research. And, it would make little sense
to allow
the presentation of bare submissions unsupported by any facts.
Of
course, this is not to say that amici will always be allowed to
lead evidence in the course of their submissions. The admissibility

in each particular case will be determined according to whether it
is in the interests of justice to do so. This Court’s
Rules
on the admissibility of evidence by an amicus are relatively strict
and circumscribed, but that is not to say that the
same criteria
must be applied in the High Court. What the interests of justice
will require in a particular case must be left
to High Courts to
decide.
There
is nothing in the High Court’s reasoning to suggest that the
evidence of an expert nature the Children’s Institute
sought
to tender was not relevant to the issues that the Court had to
adjudicate. Nor can I find any. It seems to me therefore
that as it
relates to the issue of relevance, the reception of this evidence
would have been of appreciable assistance to the
Court in the
adjudication of the issues before it.
33
Courts adjudicating constitutional issues, in particular those
relating to vulnerable groups like children, should be slow
to
refuse to receive evidence that may assist them in arriving at a
just outcome.
In
my view, a proper interpretation of Rule 16A that permits the
adduction of evidence is consistent with both a textual reading
of
the Rule as well as its underlying purpose. It also provides
invaluable space for friends of the court in public interest

matters and, by doing this, promotes access to the courts and
ensures that courts are well informed on public interest matters

when making decisions. This case is a classic example of the type
where evidence tendered by an amicus would have been most
valuable.
High Courts often hear vulnerable litigants with limited resources.
These litigants are invariably unable to produce
the kind of
compelling evidence that an expert, like the Children’s
Institute, may be able to provide. In these instances,
the amicus
speaks to aid voiceless and penniless people and assists the court
in making an informed decision.
Inherent
power under section 173
In
view of my interpretation of Rule 16A, it is not necessary to deal
with the Children’s Institute’s argument,
that section
173 of the Constitution empowers High Courts to regulate their own
process and therefore to admit evidence from
amici, save in passing
to clarify the High Court’s finding on the issue.
The
High Court found that section 173 was not applicable in this case
because allowing an amicus to adduce evidence would constitute
the
creation of a new substantive right, which goes beyond the scope
envisioned by section 173. In reaching this conclusion,
the High
Court placed reliance on
Oosthuizen
.
34
In
Oosthuizen
, the appellant sought to have his claim
transferred from the Magistrate’s Court to the North Gauteng
High Court, Pretoria
after his claim had prescribed. The Supreme
Court of Appeal held that to allow the transfer would, in effect,
permit the appellant
to bypass prescription and to do so would have
a substantive effect, namely the revival of a prescribed claim.
35
The
facts of this case are clearly distinguishable from
Oosthuizen
.
The adduction of evidence falls under the ambit of a court’s
power to regulate its own process and does not create a
new
substantive right.
36
Thus, even if Rule 16A did not provide for an amicus to adduce
evidence, section 173 could have appropriately been invoked
by the
High Court to allow an amicus to do so.
Conclusion
I
find that Rule 16A does not prohibit the introduction of evidence
by an amicus in a High Court. However, whether, and to what
extent,
to allow an amicus to adduce evidence in support of its submissions
remains within the discretion of the High Court,
guided by the
interests of justice.
Order
The
following order is made:
(a)
Leave to appeal is granted.
(b)
The appeal is upheld.
(c)
The order in paragraph 30 of the judgment of the South Gauteng High
Court, Johannesburg is set aside.
(d)
It is declared that Rule 16A of the Uniform Rules of Court permits
an amicus curiae to adduce evidence in support of its submissions,

if it is in the interests of justice.
For
the Applicant: Advocate G Budlender SC and Advocate S Budlender
instructed by the Legal Resources Centre.
1
See
[7] below for the relevant portions of Rule 16A.
2
The
full text of section 173 is as follows:
“
The
Constitutional Court, Supreme Court of Appeal and High Courts have
the inherent power to protect and regulate their own process,
and to
develop the common law, taking into account the interests of
justice.”
3
SS
(A Minor Child) v Presiding Officer of the Children’s Court,
District Krugersdorp and Others
[2011] ZAGPJHC 139;
[2012] 1 All
SA 231
(GSJ) (Wepener J, Mokgoatlheng J concurring) (High Court
judgment).
4
The
Children’s Institute’s
mission is to contribute
to the development of laws, policies, programmes and service
interventions for children in a way that
will promote equity,
realise children’s rights and improve the conditions of all
children in South Africa.
5
On
27 August 2012, we issued an order prohibiting the disclosure of
details that may reveal the identity of SS. The order read:
“
1.
In all papers filed or to be filed in this matter the fourth
respondent, a minor, must be referred to as ‘SS’.
2. No person may
publish in any manner whatsoever any information which reveals, or
may reveal, the identity of the fourth respondent.”
6
38
of 2005. Section 150(1)(a) provides that a child is in need of care
and protection if the child “has been abandoned or
orphaned
and is without any visible means of support”.
7
Section
8
of the
Social Assistance Act 13 of 2004
provides that a foster
parent is eligible for a foster child grant for a child so long as
that child satisfies the requirements
of the Child Care Act 74 of
1983 (now the Children’s Act).
8
The
“Increase in Respect of Social Grants”, published under
Government Notice 256 in
Government
Gazette
35189 of 29 March 2012,
provides that foster child grants are a maximum of R770 per month
and child support grants a maximum of
R280 per month.
Section 6
of
the
Social Assistance Act provides
that a person is eligible for a
child support grant if he or she is the primary caregiver of the
child in question.
9
High
Court judgment above n 3 at para 15.
10
Id
at para 21.
11
Id
at para 20.
12
See
[15] below.
13
The
application by SS to be declared a child in need of care and
protection was later granted on appeal by the High Court. See
SS
v Presiding Officer of the Children’s Court: District of
Krugersdorp and Others
[2012] Case No A3056/11, 29 Aug 2012, as
yet unreported (Saldulker J, Potgieter AJ concurring).
14
Koyabe
and Others v Minister for Home Affairs and Others (Lawyers for Human
Rights as
Amicus Curiae
)
[2009] ZACC 23
;
2010 (4) SA 327
(CC);
2009 (12)
BCLR 1192
(CC) at para 80. See also
Biowatch
Trust v Registrar, Genetic Resources, and Others
[2009]
ZACC 14
;
2009 (6) SA 232
(CC);
2009 (10) BCLR 1014
(CC) at para 19,
which lauds the role of public interest groups in litigation.
15
In
Sebola and Another v Standard Bank of South Africa Ltd and
Another
[2012] ZACC 11
;
2012 (5) SA 142
(CC) at para 32, this
Court found that mootness is not an absolute bar to deciding an
issue. Rather, one consideration in deciding
whether to grant leave
to appeal is whether the court’s order will have any practical
effect.
16
Albutt
v Centre for the Study of Violence and Reconciliation, and Others
[2010] ZACC 4
;
2010 (3) SA 293
(CC);
2010 (5) BCLR 391
(CC) at paras
21-4 and
Khumalo and Others v Holomisa
[2002] ZACC 12
;
2002
(5) SA 401
(CC);
2002 (8) BCLR 771
(CC) at paras 8 and 10. In
Khumalo
, this Court held that when deciding whether it is in
the interests of justice to hear an appeal against an interlocutory
ruling,
a court must take into consideration various factors
including,
“the effect that upholding
the exception may have upon the trial proceedings in the High Court”
and “the importance
of a determination of the constitutional
issues raised by the exception
”. See also
International
Trade Administration Commission v SCAW South Africa (Pty) Ltd
[2010]
ZACC 6
;
2012 (4) SA 618
(CC);
2010 (5) BCLR 457
(CC) at paras 47,
50, 53, 55 and 57.
17
2011
(6) SA 31
(SCA).
18
See
[36]-[38] below.
19
See
[7] above where
Rule 16A
is quoted in relevant part.
20
Governing
Body, Rivonia Primary School and Another v MEC for Education:
Gauteng Province and Others
(Equal
Education and Another as
Amici Curiae
)
2012 (5) BCLR 537
(GSJ);
Wesbank,
A Division of FirstRand Ltd v Papier (National Credit Regulator as
Amicus Curiae
)
2011 (2) SA 395
(WCC) at paras 29-30;
De
Gree and Another v Webb and Others (Centre for Child Law, University
of Pretoria,
Amicus Curiae
)
2006 (6) SA 51
(WLD) at 52B-D;
S
v Engelbrecht (Centre for Applied Legal Studies intervening as
Amicus Curiae
)
2004 (2) SACR 391
(WLD) at para 14; and
Modderklip Boerdery (Edms) Bpk v
President van die RSA en Andere
2003
(6) BCLR 638
(T) at paras 29 and 38.
21
Engelbrecht
id
at para 37 (footnotes omitted). The order of
that Court requested “written submissions” from the
amicus curiae on
the “[a]pplication of relevant research,
academic scholarship and legal and juristic developments” to
“contextualise
the behavior and/or criminal actions of the
accused”. See also Murray
“Litigating in the
Public Interest: Intervention and the Amicus Curiae”
(1994) 10
SAJHR
240
at 259 (Murray).
22
Rule
10
governs the admission of amici curiae in this Court. It provides,
in relevant part:
“
(1)
Subject to these rules, any person interested in any matter before
the Court may, with the written consent of all the parties
in the
matter before the Court, given not later than the time specified in
subrule (5), be admitted therein as an
amicus
curiae
upon
such terms and conditions and with such rights and privileges as may
be agreed upon in writing with all the parties before
the Court or
as may be directed by the Chief Justice in terms of subrule (3).
. . .
(3) The Chief
Justice may amend the terms, conditions, rights and privileges
agreed upon as referred to in subrule (1).”
23
Murray
above n 21 at 257.
24
Id
at 256-8. See also Erasmus
Superior
Court Practice
Service Issue 36 (Juta,
Cape Town 2011) (Erasmus) at C4–19.
25
Rates
Action Group v City of Cape Town
2004 (5) SA 545
(CPD) at
553I.
26
Emphasis
added.
27
See
Erasmus above n 24 at C4–19, noting that “[n]one of the
existing variants of
amici curiae
,
which developed in the context of civil and criminal litigation, was
adequate for constitutional matters such as those heard
by the
Court . . . public law litigation may often take
a different form from that on which the traditional
model of
litigation is based”.
28
Engelbrecht
above n 20 at para 14, stating that the admission
of amici curiae “may ensure that the Court considers a wider
range of options when coming to a decision and that it is
better
informed.”
29
Murray
above n 21 at 250-4.
30
In
re Certain Amicus Curiae Applications: Minister of Health and Others
v Treatment Action Campaign and Others
[2002] ZACC 13
;
2002 (5)
SA 713
(CC);
2002 (10) BCLR 1023
(CC) at para 5.
31
See
Wary Holdings (Pty) Ltd v Stalwo (Pty) Ltd and Another
[2008]
ZACC 12
;
2009 (1) SA 337
(CC);
2008 (11) BCLR 1123
(CC) at paras
46-7.
32
See
also
Rule 10(8)
of this Court’s Rules,
which provides:
“
Subject
to the provisions of
rule 31
, an
amicus
curiae
shall
be limited to the record on appeal or referral and the facts found
proved in other proceedings and shall not add thereto
and shall not
present oral argument.”
33
Gentiruco
A.G. v Firestone S.A. (Pty.) Ltd.
1972 (1) SA 589
(AD) at 616H.
34
Above
n 17.
35
Id
at paras 23 and 26.
36
This
is because whether a party may adduce
evidence
falls under adjectival law rather than substantive law. See
Schwikkard
Principles of Evidence
3 ed (Juta, Cape Town 2010) at 1-2.