This was an application by the National Association of Democratic Lawyers (NADEL) to be admitted as amicus curiae in review proceedings concerning land restitution claims relating to erfs 212 and 242 in Fernwood and Bishopscourt, Cape Town (the Protea Village community claim). NADEL decided in principle to intervene in November 2009, but only secured funding in February 2010 and filed their application on 4 March 2010, shortly before the matter was set for oral evidence between 8-12 March 2010. NADEL is an association of lawyers and paralegals founded in the early 1980s with objectives of addressing injustices from the apartheid era. NADEL sought to support the Protea Village community's claim for restoration and argued that the applicants in the review (William Booth and others) were not interested parties to the section 42D agreement. They requested condonation for late filing and admission as amicus curiae to make submissions providing historical and anthropological context under section 33 of the Act.
1. No order is made on any of the prayers contained in the applicant's application. 2. The applicant is granted leave to renew the application on notice to the other parties on the same papers, supplemented by such further affidavits as the case may require. 3. No order as to costs.
An applicant seeking admission as amicus curiae must comply with all requirements of Rule 14(2) of the Land Claims Court Rules. In particular, Rule 14(2)(b)(iii) requires the applicant to provide a summary of submissions to be advanced, their relevance to matters at issue, and why those submissions will be useful to the Court and different from those of other parties. This is a critical requirement that must be satisfied. The fact that evidence has not yet been led does not excuse the failure to respond to existing pleadings and heads of argument or to demonstrate the unique contribution the amicus will make. As stated in Ex Parte Beukes v Bekker, it is the "difference" in submissions (in addition to other aspects) that is a crucial criterion for admission, as the amicus must offer the court something no other party can.
The Court noted that NADEL could observe the proceedings on a watching brief even in the absence of admission as amicus curiae. The Court also observed that it was "most unfortunate" that the requirement in Rule 14(2)(b)(iii) had not been satisfied given the potential value that NADEL contended they could add to inform the Court's deliberations. The Court followed the practice of not ordering costs in line with the agreement of parties in the main review application. The reference to a submission made to the Truth and Reconciliation Commission concerning restitution as a means of redressing past wrongs was noted but not evaluated as it was neither attached nor summarized in the application.
This judgment clarifies the requirements for admission as amicus curiae in the Land Claims Court, particularly emphasizing the importance of Rule 14(2)(b)(iii) which requires applicants to demonstrate that their submissions will be useful to the Court and different from those of other parties. The case demonstrates that good intentions and a legitimate interest in justice are insufficient without a concrete showing of what unique contribution the proposed amicus will make. It also illustrates the Court's willingness to grant leave to renew applications where procedural requirements have not been met, allowing organizations like NADEL to supplement their applications with the necessary detail. The case is significant in land restitution matters as it shows the Court's careful gatekeeping of amicus participation while remaining open to assistance from specialized organizations.