In re Certain Amicus Curiae Applications: Minister of Health and Others v Treatment Action Campaign and Others

• Jurisdiction: South Africa
• Judge: Chaskalson CJ, Langa DCJ, Ackermann J, Goldstone J, Kriegler J, Madala J, Ngcobo J, O'rega J, Sachs J, Du Plessis AJ and Skweyiya AJ
• Judgment Date: 05 July 2002
• Docket Number: CCT 8/2002
• Hearing Date: 02 May 2002
• Counsel: M Khoza for the applicant for admission as an amicus. S Cowen for the third amicus curiae.
• Court: Constitutional Court

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

2002 (5) SA p713

Citation	2002 (5) SA 713 (CC)
Case No	CCT 8/2002
Court	Constitutional Court
Judge	Chaskalson CJ, Langa DCJ, Ackermann J, Goldstone J, Kriegler J, Madala J, Ngcobo J, O'rega J, Sachs J, Du Plessis AJ and Skweyiya AJ
Heard	May 2, 2002
Judgment	July 5, 2002
Counsel	M Khoza for the applicant for admission as an amicus.; S Cowen for the third amicus curiae.

Flynote : Sleutelwoorde G

Constitutional practice — Parties — Amicus curiae — Duties of — Role of amicus is to draw attention of Court to relevant H matters of law and fact to which attention would not otherwise be drawn — In return for privilege of participating in proceedings without having to qualify as party, amicus has special duty to Court — Duty is to provide cogent and helpful submissions that assist Court — Amicus must not repeat arguments already made but I must raise new contentions — Ordinarily inappropriate for amicus to try to introduce new contentions based on fresh evidence.

Headnote : Kopnota

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 J

2002 (5) SA p714

the privilege of participating in the proceedings without having to qualify as a party, an amicus A has a special duty to the Court. That duty is to provide cogent and helpful submissions that assist the Court. The amicus must not repeat arguments already made but must raise new contentions; and generally these new contentions must be raised on the data already before the Court. Ordinarily it is inappropriate for an amicus to try to introduce new contentions based on fresh evidence. (Paragraph [5] at 715F - G/H.) B

Cases Considered

Annotations

Reported cases

Fose v Minister of Safety and Security 1997 (3) SA 786 (CC) (1997 (7) BCLR 851): dictum in para [9] applied

Prince v President, Cape Law Society, and Others 2002 (2) SA 794 (CC) (2002 (3) BCLR 231): referred to C

S v Lawrence; S v Negal; S v Solberg 1997 (4) SA 1176 (CC) (1997 (2) SACR 540; 1997 (10) BCLR 1348): referred to.

Case Information

Application for admission as an amicus and for a different amicus to lead further evidence. The facts appear from the reasons for judgment.

M Khoza for the applicant for admission as an amicus. D

S Cowen for the third amicus curiae.

[The orders dismissing the applications were made on 2 May 2002 and the following reasons handed down on 5 July 2002.]

Judgment

The Court: E

[1] This judgment deals with an application for admission as amicus curiae by Professor Mhlongo (the applicant) and an application by Cotlands Baby Sanctuary (Cotlands), one of the amici, to adduce further evidence in an appeal by the government against orders made against it in the High Court. These F applications were made at the commencement of the appeal proceedings and were refused. We intimated that we would furnish our reasons later. These are our reasons.

The amicus curiae application G

[2] On the morning of the first day of the hearing Professor Mhlongo, head of the Department of Medicine and Primary Health Care at the Medical University of South Africa, applied to be admitted as amicus for the purpose of presenting certain new evidence. This related to two aspects, namely, first, the circumstances and implications of the withdrawal by the manufacturers of an application H to licence Nevirapine in the United States of America for the prevention of mother-to-child transmission of HIV; and, secondly, evidence challenging the scientific integrity of the method, the conclusions and the recommendations of the clinical trial that led to the approval...