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The Participation of the Amicus Curiae Institution in Human Rights Litigation in Botswana and South Africa: A Tale of Two Jurisdictions

Published online by Cambridge University Press:  30 June 2015

Obonye Jonas
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Abstract

It has become a standard feature of litigation for amici to appear before courts, acting as the vindicator of rights for the politically powerless and marginalized. Their appearance has thus contributed to the promotion and protection of human rights before municipal courts and international tribunals. They have done this through the submission of briefs that seek to broaden perspectives of cases and by advancing innovative legal and factual viewpoints, thus assisting the courts in reaching appropriate conclusions. In Botswana, amicus curiae participation is still at a nascent stage. This is largely due to inflexible rules of standing and the general lack of knowledge of the potential usefulness of the institution by the judiciary. This article argues that, to enhance amicus participation in litigation, thereby enhancing the epistemological quality of its public law jurisprudence, Botswana must pay close attention to the practices and experiences of South Africa where amicus participation has resulted in the phenomenal growth of constitutional jurisprudence.

Type
Research Article
Information
Journal of African Law , Volume 59 , Issue 2 , October 2015 , pp. 329 - 354
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Copyright
Copyright © SOAS, University of London 2015 

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References

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69 Viljoen and Abebe “Amicus curiae participation”, above at note 48 at 25.

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79 Mubangizi and Mbazira “Constructing the amicus curiae procedure”, above at note 2 at 203.

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81 Id at 357.

82 Amici participation was originally provided for under rule 9 of the Constitutional Court Rules of 1995, now rule 10 of the Constitutional Court Rules of 2003.

83 Rule 16A of the Rules Regulating the Conduct of Proceedings of the Several Provincial and Local Divisions of the Supreme Court of South Africa 1965 was introduced by GN 849 of 25 August 2000.

84 Constitutional Court Rules, 2003, rule 10(4).

85 2006 (6) SA 195 (CC), paras 6 and 9. In this case, the Constitutional Court departed from its own decision in Re Certain Amicus (above at note 53) where it had held that, where the parties' consent was sought and obtained by an amicus, it stood excused from seeking leave to intervene from the chief justice. For the process of admission as an amicus curiae in South Africa, see du Plessis, M et al. Constitutional Litigation (2013, Juta and Co)Google Scholar at 53.

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87 See Budlender, G “Amicus curiae” in Woolman et al. (eds) Constitutional Law of South Africa (2d ed, 2006, Juta and Co)Google Scholar 1 at 8–10. The learned author argues that “the power to permit the amicus to offer oral argument would appear to be derived from rule 32(2). Rule 32(3) states that the court or the chief justice may give such directions in matters of practice, procedure and the disposal of any appeal, application or other matter as the court or chief justice may consider just and expedient. The test is therefore whether it is ‘just and expedient’ to permit the amicus curiae to present oral argument. Given the Court's reliance on oral argument as an opportunity for members of the Court to debate issues raised in heads of argument, it is easy to understand why the Court will ordinarily allow a person who has been admitted as an amicus – and whose submissions by definition are different from those of the parties and may be useful to the court – to submit oral argument. Time limits are usually laid down to ensure that the hearing of the matter is not unnecessarily prolonged.”

88 Id at 8.

89 Ibid.

90 De Beer NO v North Central Local Council and South Central Local Council and Others (Umhlatuzana Civic Association intervening) 2001 (2) SA 429 (CC), para 31.

91 See for example Government of the Republic of South Africa and Others v Grootboom and Others 2001 (1) SA 46 (CC), para 37.

92 Rules Regulating the Conduct of the Proceedings of the Supreme Court of Appeal of South Africa, rule 16(1).

93 Id, rule 16(4).

94 Id, rule 16A(1)(c).

95 Id, rule 16A(2).

96 [2012] ZACC 25.

97 Id, para 26.

98 Id, para 31.

99 Id, para 33.

100 Mubangizi and Mbazira “Constructing the amicus curiae procedure”, above at note 2 at 204.

101 Ibid.

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103 (CCT 69/12) [2012] ZACC 25 (9 October 2012), para 15.

104 2010 (3) BCLR 239 (CC); 2010 (4) SA 1 (CC).

105 2002 (5) SA 713 (CC).

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107 Act no 116 of 1998.

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109 1995 (3) SA 391 (CC).

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112 Cap 01:01, Laws of Botswana 1966.

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114 Cap 04:02, SI No 1 of 2011, as amended.

115 Cap 04:01, SI No 53 of 1975, as amended.

116 See Jonas “Human rights enforcement”, above at note 42 at 411.

117 Kgosikgolo Kgafela II Kgafela and Another v Attorney General and Others, case no CLCGB-027-12 (unreported) at 53.

118 Ibid.

119 [2006] 1 BLR 22 at 23. As regards other cases where courts adopted similar approaches, see, among others, Sete v Director of Public Prosecutions 2010 (3) BLR 234 where Motswagole J requested the late Phazha Kgalemang, a senior attorney, to illuminate the court on the scope, import and application of sec 150(1) of the Criminal and Evidence Act, cap 08:02, which requires the magistrate to refer a matter to the High Court if “in the course of trial or preparatory examination” the magistrate forms the opinion that the accused person “may be of unsound mind and consequently incapable of making his defence”. See also the case of Keakae v The State; Zhola v The State 2006 (2) BLR 406 where Chinhengo J also requested Phazha Kgalemang to appear before him at the hearing of the case to argue a question relating to the appropriate interpretation to be annexed to sec 133(1) and (2) of the Criminal and Evidence Act dealing with bail implications of an accused person who has been committed to trial and where the prosecutor has decided to try him before the High Court. See also Director of Public Prosecutions v Mahupela 2006 (1) BLR 236 where the Court of Appeal requested Mr Sifelani Thapelo “to present the contrary view” in the case. Before this case, the law under the Road Traffic Act (cap 69:01) was that a motorist could not commit an offence of driving under the influence of alcohol if his driving ability was not impaired although he had consumed alcohol beyond the prescribed limit. Following the Court of Appeal decision in this case, the Road Traffic Act was amended to criminalize drunken driving although the person's ability to drive was not impaired.

120 In this connection, see July v The State 2006 (1) BLR 496 where Mosojane J requested the attorney, Mr Tlage, to represent a defendant accused of armed robbery. See also the case of Tlhwabiwa and Another v The State 2003(2) BLR 39, dealing with the constitutionality of minimum mandatory sentences contained in sec 3(5) of the Stock Theft Act (cap 09:01).

121 For instance, see the case of the Petition of Ahulu 2010 (1) BLR 440 in which Walia J requested the Attorney General to delegate a member of its chamber at the hearing. The learned judge sought argument on the reciprocity clause of Ghana's Legal Profession Act No 32 of 1960, as amended. Judge Walia adopted the same course in the Petition of Gijima (2010) when he requested the Attorney General or her delegate to appear at court on the hearing for admission of the attorney, Gijima. See also Secretary, Law Society and Others v Sibanda (2005) (2) BLR 291.

122 Cap 61:01, Laws of Botswana.

123 See Ex parte Garekwe 2004 (2) 396. See also Mutemachimwe v The Law Society of Botswana (2001) (2) BLR 712; Bayford v The Law Society of Botswana 2001 (1) BLR 350.

124 Bayford, id at 352.

125 See Botswana Railway's Organisation v Setsogo and Others (1996) BLR 763 at 807, where the constitutionality of the Industrial Court of Botswana was challenged.

126 See note 5 above.

127 2005 (2) BLR 333 CA.

128 Above at note 15.

129 See Kgafela, above at note 117 at 53.

130 This is a Setswana word for paramount chief.

131 See Kgafela, above at note 117 at 53.

132 Mubangizi and Mbazira “Constructing the amicus curiae procedure”, above at note 2 at 214.

133 Ibid.

134 Ibid.

135 Ibid.

136 Ibid.

137 [2006] 2 BLR 633.

138 See the judgment of Dow J, id, para 26.

139 S v Zemburuka 2003 (2) NR 112, para 117.

140 du Plessis et al Constitutional Litigation, above at note 85 at 52.

141 Mubangizi and Mbazira “Constructing the amicus curiae procedure”, above at note 2 at 215.

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143 Y Mokgoro “Judicial appointments” (December 2010) The Advocate at 46.

144 Mubangizi and Mbazira “Constructing the amicus curiae procedure”, above at note 2 at 216.