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

The Children's Institute sought to be admitted as amicus curiae in an appeal before the South Gauteng High Court concerning SS, a minor orphan living with family members who had applied to be declared "in need of care and protection" under section 150(1)(a) of the Children's Act 38 of 2005 to qualify for a foster child grant. The Children's Institute applied to adduce statistical evidence to demonstrate why orphaned children living with family members should qualify for foster child grants, as an outcome against SS would affect approximately 350,000 orphaned children. The High Court refused the application, holding that Rule 16A of the Uniform Rules of Court only permits an amicus to make submissions but not to adduce evidence, and that section 173 of the Constitution's inherent power does not extend to allowing amici to lead evidence as this would create a new substantive right.

• Whether Rule 16A of the Uniform Rules of Court, properly interpreted, permits High Courts to allow an amicus curiae to adduce evidence in support of submissions
• Whether a High Court's inherent power under section 173 of the Constitution to regulate its own process allows it to hear evidence tendered by an amicus
• Whether the refusal to allow evidence is appealable as an interlocutory order
• Whether the matter is moot given the underlying case had been resolved

Leave to appeal granted. Appeal upheld. The order in paragraph 30 of the South Gauteng High Court judgment set aside. Declaration made that Rule 16A of the Uniform Rules of Court permits an amicus curiae to adduce evidence in support of its submissions, if it is in the interests of justice.

Rule 16A of the Uniform Rules of Court, properly interpreted both textually and purposively, permits an amicus curiae to adduce evidence in support of its submissions. The term "submissions" in Rule 16A is not limited to written or oral argument but may include evidence. The discretion conferred on courts by Rule 16A(8) to determine "terms and conditions" and by Rule 16A(9) to "dispense with any of the requirements of this rule if it is in the interests of justice" empowers High Courts to permit amici to adduce evidence where the interests of justice so require. The purpose of Rule 16A is to facilitate amicus participation in constitutional matters affecting the public interest, and this purpose is best served by an interpretation that allows evidence where appropriate. Whether and to what extent to allow an amicus to adduce evidence remains within the discretion of the High Court, guided by the interests of justice.

The Court observed that even if Rule 16A did not permit evidence from amici, section 173 of the Constitution would empower High Courts to admit such evidence in the exercise of their inherent power to regulate their own process, as this relates to procedural/adjectival law rather than the creation of substantive rights. The Court distinguished Oosthuizen v Road Accident Fund on this basis. The Court noted the important role amici play in constitutional litigation, particularly in representing vulnerable groups including children, the marginalised, and the indigent. It emphasized that in such cases, amici "speak to aid voiceless and penniless people." The Court expressed concern that the High Court's interpretation would create a paradox where appellate courts could hear new evidence from amici but courts of first instance could not, contrary to the principle that appeals are generally limited to the record below. The Court noted it would be particularly problematic for High Courts to be unable to admit evidence from amici in cases involving children, given the court's responsibility as upper guardian of all children.

This judgment is of fundamental importance to South African civil procedure and constitutional litigation. It clarifies the proper scope of Rule 16A and the role of amici curiae in constitutional matters, particularly those affecting vulnerable groups. The decision promotes access to justice by enabling expert bodies and public interest organizations to provide evidence-based assistance to courts, especially in cases involving litigants with limited resources. It ensures that courts hearing constitutional matters can be fully informed by relevant factual material beyond what parties may be able to provide. The judgment recognizes the critical role amici play in South Africa's constitutional democracy and facilitates their meaningful participation in public interest litigation. It also provides important guidance on the interaction between procedural rules and courts' inherent powers under section 173 of the Constitution.