IT!
IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA
In the matter between
CQUhi'i i'V ntfj'l^l COURT
PRIVATE BAG/rHiVAATSAKX32
1995 - M - 0 1
BRAAMFONTEIN 2017
CASE Nos: CCT/1/94 CCT/2/94
WESSEL ALBERTUS VERMAAS
JOHAN PETRUS LAFRAS DU PLESSIS
APPLICANT APPLICANT
and
THE STATE RESPONDENT
HEADS OF ARGUMENT ON APPLICATION BY THE LEGAL RESOURCES CENTRE TO BE ADMITTED AS AMICUS CURIAE
The Legal Resources Centre {"LRC") applies to the Court for an order in the following terms:
(a) that the Legal Resources Centre be admitted as an amicus curiae in the above proceedings on the issue stipulated in para 3 (a)(iv) of the President's Directives dated 29 September 1994 and 17 October 1994, in terms of Rule 9(4) of the Rules of Constitutional Court (No R. 5 of 6 January 1995),
(b) that the said Legal Resources Centre is granted leave in terms of Rule 9(9) to
(i) present oral argument on the issues set out in paragraph (c) below to the above Honourable Court,
(ii) file a report by Professor Nico Steytler on the feasibility of providing legal aid to indigent persons,
(c) that the said Legal Resources Centre lodge written argument on the
issues raised in the said Directives set out in paragraph (a) above and the report filed by Professor Steytler set out in paragraph (b) (ii)
above, on or before 3.30 pm on the 7 th February 1995.
As appears from the correspondence set out in the Application, the Attorney- General declined to consent to the LRC being admitted as an amicus curiae by letter dated 24th January 1995. A copy of this letter is annexed to the Application marked "F".
Interpretation of the Rules of the Constitutional Court
3 Rule 9(4) of the Constitutional Court (No. R. 5, 6 January 1995) provides that where all the parties to the action have not given their consent to a person being admitted as an amicus curiae, then:
"... any person who has an interest in an appeal, reference or any other matter before the Court may apply to the President to be admitted therein as an amicus curiae, and the President may grant such application upon such terms and conditions and with such rights and privilege as he or she may determine."
4 Rule 9(6) further provides that an application to be admitted as an amicus curiae shall -
(a) briefly describe the interest of the amicus curiae in the proceedings;
(b) briefly identify the position to be adopted by the amicus curiae in the proceedings;
(c) clearly, succinctly and without unnecessary elaboration set out the submissions to be advanced by the amicus curiae, their relevance to the proceedings and his or her reasons for believing that the submissions will be useful to the Court and different from those of the other parties.
Amicus curiae in Foreign Jurisdictions
5 Much of the argument which follows is indebted to an article in the vol 10 of the SA Journal of Human Rights (1994) p 240 entitled "Litigating in the public interest : Intervention and the Amicus Curiae" by Christina Murray . Reference is also made to "Intervention and Amicus Curiae Status in Charter Litigation" by Kenneth P. Swan in Charter Litigation by Robert J Sharpe (ed) at p 27.
Amicus Briefs in the United States Supreme Court
6 As is well-known, in the Supreme Court of the United States today, an 'amicus brief is
'filed by someone not a party to the case but interested in the legal doctrine to be developed there because of the relevance of that doctrine for their own preferred policy or later litigation'.1
7 The role has evolved from that of a disinterested party to a situation today where the amicus is synonymous with partisan advocacy. From the 1 920s , organisations rather that the lawyers themselves were considered to be the amicus.
8 Thus Krislov writes:
'The Supreme Court of the United States makes no pretence of ...
disinterestedness on the part of "its friends". The amicus is treated as potential litigant in future cases, as an ally of one of the parties, or as the representative of an interest not otherwise represented. At this level the transition is complete; at other court levels it is in process.
Thus the institution of the amicus curiae brief has moved from neutrality to partisanship, from friendship to advocacy.12
9 The value of the amicus brief in American jurisprudence is reflected in a number of landmark constitutional judgements. For instance, the argument of the American Civil Liberties Union in an amicus brief filed in Mapp v Ohio3 was adopted when the American Supreme Court decided that the rule that improperly seized evidence should be excluded from criminal trials should be extended to state cases. (The defence had restricted their argument to an attempt to distinguish Mapp from an earlier case.)
10 The early 1950s saw a change in the rules of Court with the apparent intention of limiting the number of amicus briefs filed. Although the rule change need not have materially changed the practice, it was accompanied by a reluctance on the part of the Court to grant permission to file an amicus brief without the consent of the parties. This attitude did not last for more than a few years and today it is not uncommon to see many amicus briefs in a single case. For instance, Webster v Reproductive Health Services,4 a controversial abortion case, attracted over sixty amicus briefs.
1 Kermit L Hall (ed in chief) The Oxford Companion to the Supreme Court of the United States (1992) under 'amicus brief.
2 Samuel Krislov "The Amicus Brief: From Friendship to Advocacy" (1963 72 Ki/eL/694at704.
3 367 US 643 (1961).
4 492 US 490 (1989).
11 Intervention by amici'm the US Supreme Court is now regulated by Supreme Court Rules 28 and 37. Rule 37.1 states:
"An amicus curiae brief which brings relevant matter to the attention of the Court that has not already been brought to its attention by the parties is of considerable he/p to the Court. An amicus brief which does not serve this purpose simply burdens the staff and facilities of the Court and its filing is not favoured." (emphasis added)
12 An amicus brief may be filed with the consent of the parties, or, failing that, at the discretion of the Court. If the parties refuse consent to the filing of an amicus brief, the amicus may submit a motion for leave to file to the Court.
For many years the Court has put pressure on parties to give consent and, as a result, requests to intervene are seldom resisted by parties.5
Intervention in Canada
13 After an initial phase when the Canadian court increased the use of the amicus brief, the rules were changed in 1983 to limit interventions. This was because of the practical concern that intervention could hamper litigation to the prejudice of both the original litigants and fair solution to disputes. After much storm and protest, there was a further amendment to the rules in 1987 which had the effect of opening up participation by intervenors. In the years before 1987 relatively few applications were successful whereas since 1987 most have succeeded. The courts have now formulated rules and established practices which satisfactorily regulate the practice.
14 Soon after the rule change in 1987, Andrews v Law Society of British Columbia6 was the first equality case brought under the 1983 Canadian Charter of Rights. In granting the applications of four organizations applying for amicus status, Justice Lamer took the unusual step of providing reasons. The case involved a challenge to the exclusion from legal practice of a qualified lawyer on the ground that he was not a Canadian citizen.
Justice Lamer said that he had granted the applications because the appeal was
"determinative of more issues than that of whether the restriction by law of access to the legal profession to Canadian citizens only is in violation of section 15".
KP Swan "Intervention and Amicus Curiae status in Charter Litigation" in RJ Sharp (ed) Charter Litigation (1989) at 39; and Krislov see note 2 at 714ff.
56DLR(4th)l
15 In other words, the court was alert to the fact that the understanding of equality espoused in this case would influence future cases and it wanted to ensure that its analysis in Andrews would provide an appropriate framework for future litigation.
16 It is submitted that this concern for the breadth and framework of the decision is of cardinal importance in casu. The Court will be faced with implications in deciding the right to counsel which affect the whole population of South Africa and, of course, the fiscus.
17 It is now necessary to deal with the requirements of the rules for admission as an amicus curiae.
The interest of the LRC
18 The facts justifying the intervention by LRC as an amicus curiae are set out in the Application.
19 The interest of the LRC in the proceedings lies in the fact that it performs legal work on behalf of indigent clients in matters of public interest.
20 While it is true that the Court will be dealing specifically with the cases of Vermaas and Du Plessis, it will inevitably have to interpret and thereby give content to the fundamental right contained in Section 25(3)(e). The meaning given to the right by the Court will have an impact not only the accused in the above two cases, but will indirectly affect the rights of clients of the LRC.
21 The Canadian Civil Liberties Association has expressed the view that the Court needs to engage in a balancing process when deciding whether to admit an amicus curiae. Accordingly, the Court will need to ensure
"a balance between the effective rights of constituencies other than the immediate parties to participate in important public litigation, and the efficacy and administrative practicality of the court's workload."7 22 No guidelines are given to the Court as to the interpretation of these Rules, in particular as to what constitutes sufficient "interest". The President, furthermore, has a wide discretion in granting or refusing an application even after such an interest has been established. Reference should in the first instance be had to existing rules pertaining to intervention in the South African Supreme Court.
23 At present, the Supreme Court Rules deal with intervention on the same
Swan see note 5 at 42
basis as the right to be joined as a party. The prospective intervener needs to show that he or she would be entitled to bring the action independently and that his or her right to relief is dependent on substantially the same questions of fact or law as that of the initial parties to the case before an application for leave to intervene will be granted. (See Supreme Court Rules 10 and 11)
24 Juxtaposed against this rather strict rule are the provisions contained in s 7(4)(b){v) of the Constitution which permit "a person acting in the public interest" to seek relief. If a party can seek relief in the public interest, it seems logical that the amicus curiae should enjoy the same or greater latitude with regard to locus standi.
25 The Canadian courts have given a broad interpretation to the interest requirement. The Ontario Court of Appeal, per Thorson J.A., in considering an application to be admitted as amicus curiae in the case of Re Schofield and Min. of Consumer and Commerciai Relations (Canada)8, set down a liberal rule for public interest interventions:
"... one can envisage an applicant with no interest in the outcome of an appeal in any such direct sense but with an interest, because of the particular concerns which the applicant has or represents, such that the applicant is in an especially advantageous and perhaps even unique position to illuminate some aspect of facet of the appeal which ought to be considered by the Court in reaching its decision but which, but for the applicant's intervention, might not receive any attention or prominence, given the quite different interests of the immediate parties to the appeal."
26 A similarly broad interpretation was given to the interest requirement in Reference re: The Workers' Compensation Act of Newfoundland, by Sopinka J. According to Brodie:
"He stated that a potential intervener must show that it has both an interest in the case and that it would present a useful submission that is different from the submissions of the other parties. He then articulated a very broad reading of what type of interest an intervener would have to show and stated that 'an applicant who has a history of involvement in the issue giving the applicant an expertise which can shed fresh light or provide new information on the matter' would
'easily' satisfy the 'useful and different' test,"9
(1980), 28 O.R. <2d) 764 (C.A.)
(1989) vol 5 no 6 SCN 66-67 (20 April), cited in IR Brodie Interest Groups and the Charter of Rights and Freedoms: Interveners at the Supreme Court of Canada (unpublished MA thesis, Calgary 1992) chapter 1.
27 Submissions are made hereinafter concerning the novelty and usefulness of the LRC's submissions.
Usefulness of an amicus brief
28 In arguing for a broad notion of intervention, Murray refers to a number of uses that intervention has:
"First intervention may ensure that the court considers a wider range of options when coming to a decision and that it is better informed.
Usually the intervener or amicus does one (or both) of two things.
Most typically, as is evident from both American and Canadian examples ... it offers a legal argument not raised by either of the parties. Less frequently, such an intervener presents factual material {along the lines of the famous Brandeis brief), placing the issues before the court in their social context and suggesting their likely consequences."10
29 Murray continues
"... the Canadian case of Andrews offers an example of the self- conscious use of intervention by the Canadian Supreme Court to ensure that the judicial interpretation of an important Charter value was not skewed by the facts of a particular case."11
30 It would be undesirable if the future of legal representation were skewed by an unfortunate ruling premised on the peculiar facts relating to Vermaas and du Plessis.
31 The second reason mentioned by Murray deals with the provision of background information. This is dealt with below.
32 A third reason for permitting intervention by an amicus representing interest groups not originally party to the case is described by Bryden as the "value of legitimation of the eventual decision rendered by the court':
"Public interest litigation helps to legitimize judicial decisions in two ways ... First of all, the willingness of courts to listen to interveners is a reflection of the value that judges attach to people. Our
10 C Murray Litigating in the Public Interest: Intervention and the Amicus Curiae (1994) 10 SAJHR 240 at 250
11 See note 10 at 250
commitment to a right to a hearing and public participation in government decision-making is derived not only from the belief that we improve the accuracy of decisions when we allow people to present their side of the story, but also from our sense that participation is necessary to preserve human dignity and self-respect...
Secondly, participation by public interest interveners in litigation creates a moral obligation on their part to respect the outcome of the litigation."12
The position to be adopted by the LRC
33. The position to be adopted in the proceedings by the LRC is that, based on the conclusions of the study undertaken by Prof Steytler, the LRC will propose that the Argersmger-rule should be adopted by the Court as the test for whether a person qualifies, in terms of sec 25{3)(e) of the Constitution, for legal representation at State expense.
Why LRC's submissions are useful and different
34. As indicated above, the rules require that a person clearly, succinctly and without unnecessary elaboration set out the submissions to be advanced by the amicus curiae, their relevance to the proceedings and his or her reasons for believing that the submissions will be useful to the Court and different from those of the other parties.
35. Murray, in her study of the American and Canadian authorities mentioned above, identifies a second role of the amicus is to provide background information not supplied by the original parties and thereby ensure that the Court is fully informed when it comes to making a decision. It is submitted that this enables the Court to make decisions confident of their social consequences. In the words of Murray:
"That our courts are likely to need this kind of evidence is reflected by Nicholas AJA's virtual call for a feasibility study in Rudman (at 387- 392). Although one might conclude that in the circumstances of that case the court was determined to leave the issue to the legislature, in future the chapter on fundamental rights will often remove that possibility, requiring judges to decide such issues of policy. "
36. A number of decisions of the Supreme Court of Canada show that the court must be persuaded that the prospective intervener not only has an "interest"
in the proceedings but also has something new and useful to add to the
12 PL Bryden "Public Interest Intervention in the Courts" (1987) 66 Canadian Bar Review 490 at 508-9.
case.13 If the court is satisfied on these counts, it will then consider the important question of whether the intervention will prejudice the immediate parties to the case.14
37. The research of Prof Steytler deals with the question of possible prejudice to State coffers. The intervention of the LRC is broadly supportive of the Applicants in the case. Therefore, it is submitted that the intervention of the LRC will not prejudice immediate parties to the case.
38. The submissions made by the LRC will be useful to the Court and different from those of the other parties for the reasons set out hereinafter. The State makes very limited submissions on the issue of legal representation. No facts are tendered nor are submissions made as to the feasibility of legal aid for the Accused in question or for a wider legal aid program.
39. In the du Plessis and Vermaas matters, both Counsel give attention to the question of the choice of a legal representative and the circumstances under which the courts should grant legal aid. Counsel quote European and American authority in aid of their submissions. LRC will be citing authority from other jurisdictions to assist the court in arriving at its decision.
40. Counsel in the Vermaas matter restricts his submissions to legal representation in the Supreme Court, advocating an extension of the pro deo system to all Supreme Court criminal matters. No mention is made of feasibility in the du Plessis Heads of Argument. Clients of the LRC will be appearing in other courts, apart from the Supreme Court, and findings are made by Prof Steytler as to the feasibility of such receiving assistance from
\ the State in the form of inter alia Legal Aid or a Public Defender system.
4 1 . The Court will also need to know the financial implications involved in extending Legal Aid in arriving at its judgment on the criteria to be determined. Professor Steytler has made a detailed study which includes an assessment of the numbers of accused persons involved, the nature of the crimes which could potentially result in them receiving a jail sentence, the financial implications and the availability of legal personnel to staff such a system. Without such information, the Court will not be able to assess whether any proposed principle or rule is within the means of the State. It is precisely on this point, as is mentioned above by Murray, in the Case of Sv Rudman 1992 1 SA 343 at 389 A-J, that the Appellate Division balked and declined to adopt the rule in Khany/fe. The AD in fact called for the sort of material which Professor Steytler will provide to this Court.
13 See, for example, Norberg v Wynrib [1992] 2 SCR 224 and M (K) v M (H) [1992]3RSC3.
14 H Orton "Public Interest Intervention" unpublished paper, January 1992 at 11 ff
Rights and Privileges of the am/'cus curiae
42. Rule 9{4) provides that upon granting an application to be admitted as am/'cus curiae, the President may do so "upon such terms and conditions and with such rights and privilege as he or she may determine". Furthermore, Rule 9{9) provides that
"[ulnless otherwise ordered by the Court, an amicus curiae shall be limited to the record on appeal or reference and the facts found proved in other proceedings and may not add thereto and shall not present oral argument."
43. The President and the Court, accordingly, have a discretion in determining the rights and privileges of the am/'cus curiae. It is submitted that in determining the nature and extent of the involvement of a particular am/'cus curiae the same factors , discussed above, that are considered in deciding whether to admit an amicus curiae need to be weighed up. Namely, the balance between, on the one hand, "efficacy and administrative practicality of the Court's workload" and, on the other hand, "the effective rights of constituencies other than immediate parties to participate in important public litigation."15
44. In the words of Murray:
"While granting all interveners carte blanche would be costly, not permitting those can show that they have something to add to the decision making process an adequate opportunity to fulfill this function would similarly stand in the way of justice. The contributions of interveners will range from legal argument to sociological evidence of different outcomes. In some cases a written submission would be adequate, in others it may be appropriate to allow an intervener to lead evidence."16
45. In America, the role of the amicus and the parties are distinct and the amicus is restricted to a written brief in all but the "most extraordinary circumstances"17.
46. In contrast with the American position, the Canadian Court decides the role that a specific intervenor may play in litigation according to the circumstances of a particular case. Canadian Supreme Court Rule 18(1)
15 Swan, see note 5 at 42 16 See note 10 at 257 17 Rule 28.7
specifies that each intervention is on "such terms and conditions and with such rights and privileges as the judge may determine". This rule is very similar to Rule 9(4) of the South African Constitutional Court Rules. Hence, it is submitted that the Canadian authorities may be useful in assisting the President in interpreting this rule.
47. The position of the amicus in Canada is described by Murray as follows:
"... an intervenor may be permitted to introduce new evidence and may be subject to the risk of an adverse order as to costs, or, at the other extreme, may be restricted in the issues that it addresses and not given time for oral argument."
48. Although Rule 18 (5) of the Canadian Supreme Court provides that an intervener may not add to the case on appeal and is not entitled to present oral argument, in practice interveners are often granted a short time for oral argument18.
49. The Canadian Civil Liberties Association recommends that there should be"a wide latitude for partial interventions through written briefs" and that the court should then select intervenors to present oral argument where appropriate.
Reasons
50. In the book entitled Charter Litigation by Sharpe, mention is made of the reluctance on the part of the Canadian courts to give reasons for allowing or rejecting applications for the admission of interveners and points out the resultant difficulty for future litigants to discern the rationale behind the court's treatment of intervention applications19:
"Because no reasons for allowing or rejecting applications have ever been given, it is impossible to come any closer to discerning the rationale behind the court's treatment of intervention applications.
Moreover, there is no clear indication that the anti-intervention view was held more strongly by some judges than others; the decisions, even when made by the same judge, are simply not reconcilable."
5 1 . The same criticism has been directed at the American courts by inter alia Murray.
52. Murray suggests that
18 Murray, see note 10 at 256
19 RJ Sharpe Charter Litigation at 35
"...intervention should be dealt with as a matter of importance at the beginning of the Constitutional Court's life, so that the situation is clear from the outset and interested parties have easy access to the Court, even when they are not initially part of the case."20
53. While the Rules are silent in this regard, it is, respectfully submitted that the Honourable President should, for the guidance of future Applicants, provide reasons for granting or rejecting the present application. This is particularly important in light of the fact that this Application will be the first, or at least among the first, to be considered by this Honourable Court.
Costs
54. Rule 9{1 1} provides that an order of Court dealing with costs may make provision for the payment of costs incurred by or as a result of the intervention of the amicus curiae. As the present application is directed to the President no provision is made for costs of this application at this stage.
The LRC reserves the right to claim costs of this application at the hearing by the Constitutional Court should the status of amicus curiae be granted by the President.
55. It is therefore submitted that the Honourable the President of the Constitutional Court should grant the said Application.
C R Nicholson SC
Dated at Johannesburg this 31st day of January 1995
20 Murray, see note 10 at 240
