Children's Institute v Presiding Officer, Children's Court, Krugersdorp, and Others

• Jurisdiction: South Africa
• Judge: Mogoeng CJ, Moseneke DCJ, Cameron J, Froneman J, Jafta J, Khampepe J, Nkabinde J, Skweyiya J, Van der Westhuizen J, Yacoob J and Zondo J
• Judgment Date: 09 October 2012
• Docket Number: CCT 69/12 [2012] ZACC 25
• Hearing Date: 18 September 2012
• Counsel: G Budlender SC (with S Budlender) for the applicant (instructed by the Legal Resources Centre).
• Court: Constitutional Court

Khampepe J (Mogoeng CJ, Moseneke DCJ, Cameron J, Froneman J, Jafta J, Nkabinde J, Skweyiya J, Van der Westhuizen J, Yacoob J H and Zondo J concurring):

Introduction

[1] The central question in this appeal is whether rule 16A [1] of the Uniform Rules of Court (Uniform Rules), properly interpreted, permits I 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

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)

A question is whether a high court's inherent power under s 173 of the Constitution to regulate its own process allows it to hear evidence tendered by an amicus. [2]

[2] The South Gauteng High Court, Johannesburg (high court), held B 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 s 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 C Supreme Court of Appeal. The first, second, third and fourth respondents have filed notices to abide by this court's decision.

Background

[3] This appeal arises out of an enquiry whether SS, the fourth respondent, D a minor orphan living with his great-aunt and great-uncle, [5] was 'in need of care and protection' as defined under s 150(1)(a) of the Children's Act, [6] and therefore whether his caregivers were eligible for a foster child grant. [7]

[4] SS, together with his great-aunt and his great-uncle, applied to the E 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

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)

children. [8] The children's court refused the application, finding that A 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.

[5] On appeal in the high court, the Children's Institute sought to be B 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.

[6] The Children's Institute made an application to the high court to adduce evidence. It sought to lead evidence of a statistical nature to C demonstrate why orphaned children living with family members should qualify for foster child grants. The application was refused.

High court interpretation of rule 16A

[7] The admission of amici curiae is governed by rule 16A. The rule provides, in relevant part: D

'(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, E 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 F 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 G 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; H

(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

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)

(c)

A 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 B 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.]

C [8] 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 D 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.]

[9] The high court accordingly concluded that high courts have no power under the Uniform Rules to receive evidence from an amicus and E are limited to receiving argument only. [10]

[10] The high court further indicated that a court's inherent power under s 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 F right for an amicus. [11]

Leave to appeal

[11] 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 G 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 s 173 of the Constitution. These are constitutional issues of substance.

[12] It is in the interests of justice to grant leave to appeal, given the H 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.

[13] Furthermore, it is important to address two preliminary matters, I namely, the mootness and appealability of an interlocutory order. I am

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)

satisfied that neither serves as a hurdle to this court's ability to hear this A matter.

[14] 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 B 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 crippling. This is further exacerbated by the C fact that the Supreme Court of Appeal refused leave to appeal. This means that the high court's decision stands and is binding.

[15] Counsel for the Children's Institute emphasised, in argument, that as a result of the high court judgment, amici have been hesitant, on the D 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...