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

The matter arose from proceedings in which SS, an orphaned minor living with his great-aunt and great-uncle, sought to be declared a child in need of care and protection under the Children’s Act in order to qualify for a foster child grant. The Children’s Court refused the application. On appeal to the South Gauteng High Court, the Children’s Institute applied to be admitted as amicus curiae and sought leave to adduce statistical evidence showing that a restrictive interpretation would affect approximately 350 000 orphaned children living with family members. The High Court admitted the Children’s Institute as amicus but refused its application to adduce evidence, holding that Rule 16A of the Uniform Rules permits amici to make submissions only, not to lead evidence, and that section 173 of the Constitution could not be used to create such a right. Leave to appeal was refused by both the High Court and the Supreme Court of Appeal, prompting an application to the Constitutional Court.

Leave to appeal was granted and the appeal succeeded. The Constitutional Court set aside the High Court’s ruling and held that High Courts have the discretion to allow an amicus curiae to adduce evidence under Rule 16A and/or section 173 of the Constitution, subject to the interests of justice.

This judgment clarifies and strengthens the role of amici curiae in South African constitutional litigation. It confirms that High Courts have the discretion to admit evidence from amici, thereby enhancing informed judicial decision-making in public interest cases. The decision prevents an unduly restrictive approach that would have limited access to justice and undermined the contribution of public interest organisations, particularly in matters affecting vulnerable groups.