Institute for Security Studies in re: The State v Basson

The Institute for Security Studies (ISS), a research organisation concerned with human security in Africa, applied for admission as amicus curiae in a criminal matter involving Dr Basson. The ISS sought to make submissions on three aspects: (1) the role and place of crimes against humanity in South Africa's history; (2) the correctness of dismissal of conspiracy charges; and (3) the extraterritorial reach of the constitutional duty to prosecute international crimes. The State consented to the application but Dr Basson declined consent. The ISS then applied to the Chief Justice for admission. The application was heard on 1 December 2004 and refused on 2 December 2004. The ISS proposed to address issues including the history of individual criminal responsibility under international law, the duty to prosecute crimes against humanity and war crimes, legal and political consequences for failure to prosecute, amnesty for international crimes, and the extraterritorial effect of amnesties such as that granted by the Administrator-General of Namibia.

• What are the applicable legal principles governing the admission of an amicus curiae in the Constitutional Court?
• Whether consent of all parties automatically results in admission of an amicus curiae?
• What are the requirements for an application for admission as amicus curiae under Rule 10?
• Whether the proposed submissions of the ISS raised new contentions different from those of the parties?
• What considerations apply to admission of amici in criminal proceedings?

The application for admission as amicus curiae by the Institute for Security Studies was refused. The Court indicated it would furnish reasons later, which were delivered on 9 September 2005.

Consent of all parties under Rule 10(1) does not automatically result in admission as amicus curiae. The Constitutional Court retains discretion to refuse admission even where consent has been obtained. The underlying principles governing admission of an amicus are: (1) the submissions must be relevant to the issues before the court; (2) the submissions must be useful to the court; and (3) the submissions must be different from those of the other parties and raise new contentions. After obtaining consent, an applicant must still make an application to the Chief Justice for admission to enable determination of whether these principles are satisfied. Applications for admission should ordinarily be accompanied by a summary of written submissions to enable proper assessment under Rule 10(6)(c). In criminal matters, courts should be cautious not to allow amicus submissions to stack the odds against an accused person, as this affects fairness, equality of arms, and the interests of justice.

The Court observed that in the past there has been a tendency to grant consent for amicus admission as a matter of course, and stated that consent should not be given without proper consideration of the governing principles. The Court noted that the fact a person was admitted as amicus in the court below does not automatically entitle admission in the Constitutional Court. The Court stated this judgment must be regarded as a general instruction on how to prepare an application for admission as an amicus. The Court commented that it is not always easy to assess the requirements of Rule 10(6)(c) from mere allegations in an affidavit, and applicants who fail to provide a summary of proposed submissions run the risk of refusal. The Court noted that the principle of caution in criminal matters regarding amicus admissions is not an inflexible rule, but is a consideration based on fairness, equality of arms, and the interests of justice.

This judgment is a landmark decision establishing comprehensive guidelines for amicus curiae admissions in the Constitutional Court. It clarified that consent of all parties does not automatically entitle admission and that the Court retains full discretion to assess whether proposed submissions meet the requirements of relevance, usefulness, and distinctiveness. The judgment serves as a general instruction on how to prepare amicus applications and emphasizes that parties must apply their minds to governing principles when giving consent. It established important principles for criminal proceedings, recognizing the need to protect equality of arms and fairness to accused persons. The judgment demonstrates the Court's control over its own processes and its commitment to ensuring that amicus participation genuinely assists the court rather than merely duplicating party submissions or unfairly disadvantaging an accused.