University of Witwatersrand Law Clinic v Minister of Home Affairs and Another

The University of Witwatersrand Law Clinic (the Clinic) acted as amicus curiae in proceedings before the Pretoria High Court in which Mr Ismail Ebrahim Jeebhai sought declaratory relief concerning the arrest, removal, detention and subsequent disappearance of Mr Khalid Mahmood Rashid. The full bench of the Pretoria High Court dismissed that application on 16 February 2007. Mr Jeebhai thereafter applied for leave to appeal to the Supreme Court of Appeal, an application that was still pending. Separately, the Clinic applied directly to the Constitutional Court for leave to appeal under Rule 19(2). Mr Jeebhai also sought to join the Clinic’s application and himself sought leave to appeal directly to the Constitutional Court.

Both the Clinic’s application for direct appeal and Mr Jeebhai’s joinder and direct appeal application were dismissed. No order as to costs was made.

The case clarifies the limits of the role of an amicus curiae in appellate proceedings before the Constitutional Court and reinforces strict compliance with Constitutional Court Rule 19. It affirms that parties to litigation, not amici, control the choice of appellate forum, and that parallel applications for leave to appeal in different courts are generally contrary to the interests of justice.