Case CCT 41/11 and CCT 46/11 In the ex parte application of:
CENTRE FOR APPLIED LEGAL STUDIES Applicant for admission
as amicus curiae
In the application for leave to appeal in the matter between:
HLOPHE, MANDLAKAYISE JOHN Applicant
and
THE PREMIER OF THE WESTERN CAPE PROVINCE Respondent
and
In the application for leave to appeal in the matter between:
HLOPHE, MANDLAKAYISE JOHN Applicant
and
FREEDOM UNDER LAW AND OTHERS Respondents
FOUNDING AFFIDAVIT
I, the undersigned,
KATHLEEN HARDY state under oath the following:
1. I am an adult female attorney employed by the Centre for Applied Legal Studies, a Centre within the University of the Witwatersrand, Johannesburg, 1 Jan Smuts Avenue, Johannesburg.
2. I am the attorney of record for the Centre for Applied Legal Studies (“CALS”) and am duly authorised to depose to this affidavit on behalf of it.
3. The facts contained herein are to the best of my knowledge true and correct and, unless otherwise stated or indicated by the context, are within my personal knowledge.
4. In this application, CALS seeks admission as an amicus curiae in the present proceedings.
5. The purpose of this affidavit is to set out the basis of the application as per the requirements listed in Rule 10 of the Rules of this Court.
THE CENTRE FOR APPLIED LEGAL STUDIES
6. The first applicant is the University of the Witwatersrand, Johannesburg acting through CALS, situated at 1 Jan Smuts Ave, Braamfontein.
7. CALS is a centre which exists within the University. The University is a juristic person and tertiary education institution registered in terms of the Higher Education Act No 101 of 1997, as amended by Section 25 of Act 23.
8. CALS has been established for the purposes of promoting, protecting and advancing human rights through the utilisation of the law. It seeks to strengthen constitutional democracy and promote social justice and equality. In carrying out its functions, CALS undertakes litigation as well as research, advocacy, legal training and teaching. The aforementioned functions have been approved by the Vice-Chancellor of the University in terms of its rules, policies and procedures including the Delegation of Authority Document.
9. CALS has a particular interest in issues concerning the judiciary, including judicial independence and the public perception of the judiciary. This interest is long-standing and dates back to before our present constitutional era, when CALS was engaged in running a series of well-known conferences for prominent persons in the legal field, which sought to debate views on how to create a credible and progressive judiciary in the post- Apartheid era.
THE INVOLVEMENT OF CALS IN THE MATTER OF HLOPHE v LANGA OTHERS
10. In 2009, CALS applied to be admitted as amicus curiae in the matter of Hlophe v Langa and Others in this Court. It did so at the time that this Court was receiving written argument from the parties and certain legal bodies on the questions of recusal, the doctrine of necessity and related issues. Thus, the issues concerned were in substance much the same as those presently raised by the directions of this Court in the above two matters.
11. This Court issued an order granting CALS leave to intervene as an amicus curiae.
12. In the event, the previous application for leave to appeal was withdrawn by Mr Justice Hlophe, and the submissions made by CALS became irrelevant.
THE SUBMISSIONS TO BE ADVANCED IN THESE PROCEEDINGS
13. CALS has no wish to become involved in the merits of the dispute between the applicant and the respondents. Accordingly, it only wishes to make submissions on the six legal questions posed in the directions of the Chief Justice of 30 May 2011 and 6 June 2011.
14. CALS considers that those questions (and the issues that they raise) have a significance far beyond the confines of the present dispute. They will affect various future cases, particularly those concerning judicial independence.
For example, if at any stage Parliament was to pass a statute that affected the remuneration of judges, and therefore their independence, the principles concerning the “doctrine of necessity” would be of considerable importance in ensuring that this Court could properly adjudicate any constitutional challenge to such statute.
15. In brief, the submissions of CALS on the issues raised will be as follows:
15.1 The power to appoint acting judges to this Court does not arise when a judge recuses himself or herself. Accordingly, even if leave to appeal were granted in this matter, there would be no competent court that could hear the appeal.
15.2 The doctrine of necessity is a well-established common law exception to the recusal principle. It means that where recusal would destroy the quorum of court, without any possibility of substitution, the court must then hear the matter without recusal as there is no other option.
15.3 The doctrine of necessity must however be sparingly applied and would, in the present context, only apply to the determination of the application for leave to appeal – not the appeal itself.
15.4 This Court should therefore dismiss the applications for leave to appeal without engaging in a debate over prospects of success or the merits.
16. These submissions are dealt with in detail in the written argument for CALS, which is filed together herewith. CALS makes these submissions relying on both local and foreign law.
17. Amongst the foreign authorities referred to by CALS are the following:
17.1 US Authorities
US v Will 449 U.S. 200 (1980)
Maldonado v. Sand 216 F.3d 1072 (C.A.2 (NY) 2000) Switzer v. Berry 198 F.3d 1255 (C.A.10 (Colo.) 2000) Tapia-Ortiz v. Winter 185 F.3d 8 (C.A.2 (N.Y.) 1999) Bolin v. Story 225 F.3d 1234 (C.A.11 (Ga.) 2000)
17.2 Canadian authorities
Reference re Remuneration of Judges of the Provincial Court (P.E.I.), [1998] 1 S.C.R. 3
Mackeigan v Hickman (1989) 61 DLR (4th) 688 (SCC)
17.3 European authorities
Kingsley v United Kingdom (2001) 33 ERHH 288
17.4 English authorities
Dimes v. Grand Junction Canal (Proprietors of) (1852), 3 H.L.C. 759
Locabail (U.K.) Ltd. v Bayfield Properties Ltd. and Another [2000] 2 W.L.R. 870 (CA)
17.5 Australian authorities
Laws v. Australian Broadcasting Tribunal (1990), 93 A.L.R.
435 (H.C)
Rajski v Wood (1989) 18 NSW LR 512
18. In light of the above, I submit that the submissions to be advanced by CALS are different in various respects from the submissions advanced thus far before this Court and will, in any event, be of assistance to this Court.
PROCEDURAL MATTERS
19. CALS was not amongst the amici specified by this Court’s directions as being invited to make submissions. However, CALS is plainly entitled to apply for admission as an amicus curiae in accordance with Rule 10 of this Court’s rules.
20. CALS has addressed correspondence to the parties seeking their consent to CALS intervening as amicus curiae in this matter. A copy of that correspondence and responses thereto are attached as Annexure A. To date, not all the parties have responded. In particular, the attorneys for Mr
Justice Hlophe have not responded to CALS’ request for consent to be admitted.
21. This matter has an unusual procedural history. This Court has invited the applicant and various amici to make written submissions by a specified date. It is clear therefore that this Court wishes to consider such submissions in determining whether to decide the matter at all and, if so, whether the matter should be set down for hearing.
22. In light of this and the urgency of resolving this matter of considerable public interest, CALS considered it appropriate to prepare the written argument in full and to lodge it together with the present application. I stress that I am well aware that this is a very unusual approach and that no disrespect is intended. CALS was merely anxious to ensure that, if this Court decided to admit it as amicus curiae, the relevant written argument would immediately be available for the Court’s assistance. I point out also that the identical approach was adopted by CALS in the matter of Hlophe v Langa and Others, whereafter this Court granted the application for admission as amicus curiae.
23. Finally, it should be pointed out that this matter, and the issues raised by this Court, are of immense public interest and importance. This is evidenced by this Court’s invitation to various entities to intervene as amici curiae. In the circumstances, I submit that it would be appropriate for this Court to
receive as wide a set of arguments as possible in determining how to deal with this matter.
CONCLUSION
24. In all the circumstances, CALS prays for an order as set out in the notice of motion.
__________________________________
DEPONENT
SIGNED and SWORN to before me at _____________________ on the ____day of JUNE 2011, after the deponent stated that she is aware of the content of this statement and considers the oath to be binding on her conscience. I certify that the regulations provided for in the Government Gazette Notice R. 1258 of 21 July 1972 have been complied with.
___________________________
COMMISIONER OF OATHS
FULL NAMES:
DESIGNATION:
ADDRESS:
