Psychological Society of South Africa v Qwelane and Others

Mr Qwelane published an article on 20 July 2008 in the Sunday Sun likening gay and lesbian people to animals and blaming them for degeneration of societal values. In December 2009, SAHRC filed a hate speech complaint in the Equality Court citing Mr Qwelane and Media24. PsySSA and the Freedom of Expression Institute joined as amici curiae. After various procedural delays including a default judgment, rescission, and constitutional challenges by Mr Qwelane, the matter was consolidated and set down for hearing from 29 August to 9 September 2016. On 28 August 2016 (the eve of trial), Mr Qwelane served an application for postponement sine die citing multiple chronic medical conditions requiring 24-hour oxygen support. The High Court granted the postponement ex tempore without allowing SAHRC and PsySSA to file answering affidavits. PsySSA, which had been an amicus curiae in the High Court proceedings, applied directly to the Constitutional Court for leave to appeal against the postponement order.

• Whether an amicus curiae has legal standing to seek leave to appeal in the Constitutional Court
• Whether the High Court properly exercised its discretion in granting a postponement
• Whether the High Court violated the audi alteram partem principle by refusing to allow opposing parties to file answering affidavits
• Whether an interim order postponing proceedings is appealable
• Whether it is in the interests of justice for the Constitutional Court to intervene in an unconcluded matter

The application for leave to appeal was dismissed.

The binding legal principles established are: (1) An amicus curiae may, in appropriate circumstances where public interest is involved, have legal standing to seek leave to appeal, applying Campus Law Clinic factors including whether there is another reasonable and effective manner to bring the challenge, the nature of relief sought, vulnerability of affected persons, and nature of rights infringed. (2) The audi alteram partem principle is an indispensable condition of fair proceedings that must be observed regardless of whether hearing the other party would likely change the outcome - the 'no difference' approach is generally anathema to natural justice. (3) When exercising discretion to grant a postponement, a court must judicially exercise that discretion by considering all relevant factors including timeliness of application, full explanation, prejudice to all parties, opposition, and broader public interest - not just the interests of immediate parties. (4) A court's failure to allow parties opportunity to file answering affidavits and present evidence constitutes a miscarriage of justice and procedural unfairness. (5) However, the Constitutional Court will intervene in unconcluded lower court proceedings only in cases of great rarity where grave injustice threatens and intervention is necessary to attain justice - not where a matter is proceeding to hearing within a reasonable timeframe.

The Court made several non-binding observations: (1) It noted that PsySSA erred in its procedural approach by initially filing a notice of appeal in the SCA without first obtaining leave to appeal from the High Court, incorrectly believing that section 23 of the Equality Act conferred a right of appeal without leave - the Court clarified that George remains applicable under the Superior Courts Act. (2) The Court observed that postponements are 'not merely for the taking' and must be properly motivated and substantiated. (3) The Court noted that the supersession of the Supreme Court Act by the Superior Courts Act did not change the requirement for leave to appeal. (4) The Court observed that the case involved proceedings of 'high public interest' concerning alleged injurious words published against LGBTI persons, which accentuated the injustice of the procedural denial. (5) The Court commented on the two-fold effect of the audi alteram partem principle: it satisfies the individual's desire to be heard before being adversely affected, and provides the decision-maker opportunity to acquire pertinent information for just exercise of power.

This case is significant for: (1) clarifying that in appropriate circumstances, particularly where public interest is involved, an amicus curiae may have legal standing to seek leave to appeal despite not being a party to the proceedings; (2) reinforcing the importance of the audi alteram partem principle as an indispensable condition of fair proceedings that cannot be bypassed on grounds that hearing the other side would make 'no difference' to the outcome; (3) emphasizing that procedural fairness has inherent value beyond outcome, serving both dignity interests and the better administration of justice; (4) illustrating the Constitutional Court's reluctance to intervene in unconcluded proceedings in lower courts except in cases of grave injustice where intervention is necessary; and (5) demonstrating how courts must balance various factors including prejudice to all parties and public interest when exercising discretion on postponements. The case arose in the context of hate speech proceedings against LGBTI persons, highlighting the constitutional dimensions of such cases.