Advocacy, Litigation and Amicus Curiae[2004 October 25]
The South African Constitution provides the space for individuals and groups to organise in various ways in order to bring about change and deepen democracy. This type of organisation can take several forms, inter alia, submissions to Parliament on legislation, attending public hearings at Parliament, joining a political party or other organisation or engaging in public protest. In addition to these forms of advocacy, public interest litigation can be used as an effective strategy to ensure the enforcement of rights.
Litigation is an important advocacy tool for public interest groups because it is not just the parties to a dispute that can present arguments before our courts but also people or organizations with an interest in the issue at stake. Even if a Non Governmental Organization (NGO) is not directly involved in a case and therefore has no “standing” to appear before the court, it may nevertheless intervene as an amicus curiae (“friend of the court”) provided it has an interest in the matter. In this way, NGO’s can play a significant role in advocating for changes to government policies and laws through litigation.
Amicus curia refers to a party or individual that is allowed to provide information and arguments to a court, usually in the form of a legal brief, even though the party is not directly involved in the case at hand.
The Constitutional Court Rules of 2003 provides guidelines as to who can act as an amicus curiae in a Constitutional Court hearing. The rules states that:
- any person interested in any matter before the Court may, with the written consent of all the parties in the matter before the Court, be admitted as an amicus curiae.
- If consent is not given by the parties to the case, an application to be admitted as amicus curiae may be made directly to the court.
- The application should briefly describe
- interest of the amicus curiae in the proceedings
- identify the position to be adopted
- set out the submissions, and
- state the relevance of the submissions and the reasons for believing that the submissions will be useful to the Court and different from those of the other parties
- An amicus curiae has the right to lodge written arguments, provided that it does not repeat any matter in the argument of the other parties. The written arguments should also raise new contentions which may be useful to the Court.
The assistance provided to our courts by amicus curia has been demonstrated in a number of cases, including some very important ones concerned with reproductive rights, the provision of anti-retroviral drugs, and the pricing of pharmaceutical drugs. In the TAC battle against the government for wider access to anti-retroviral drugs in 2002, three organizations including the Institute for Democratic South Africa (Idasa) presented their arguments to the Constitutional Court. They were able to intervene precisely because of the Constitutional Court rules that interested parties may act as amicus curiae. These organizations assisted the court in reaching its decision by adding new aspects to the arguments before the court.
Idasa, for example, addressed the Court on issues relating to the separation of powers between the executive and judicial arms of government. The government had argued that policy issues such as the distribution of nevirapine were outside the jurisdiction of the courts. On the contrary, Idasa argued that the judiciary does have a role to play in the fulfillment of these kinds of socio-economic rights. Through litigation TAC and its supporters secured the right of HIV-positive pregnant women to be provided with nevirapine by public health care facilities.
The opportunity to take part in a court case as an amicus curiae provides more opportunity for public participation in democratic institutions. In this way democracy is promoted and transparency strengthened.
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