University of Witwatersrand Law Clinic v The Minister of Home Affairs and Others

The University of Witwatersrand Law Clinic (the Clinic) had acted as amicus curiae in proceedings in the Pretoria High Court. In those proceedings, Mr Jeebhai had sought declaratory relief concerning the arrest, removal, detention and subsequent disappearance of Mr Khalid Mahmood Rashid. On 16 February 2007, a full bench of the Pretoria High Court dismissed the application. On 2 March 2007, Mr Jeebhai lodged an application for leave to appeal to the Supreme Court of Appeal with the Pretoria High Court, which remained pending. Meanwhile, the Clinic lodged an application with the Constitutional Court purportedly in terms of Constitutional Court Rule 19(2) for direct appeal to the Constitutional Court. On 22 March 2007, Mr Jeebhai lodged an application with the Constitutional Court seeking to join the Clinic's application and for leave to appeal directly to the Constitutional Court, but failed to mention the pending application for leave to appeal in the High Court.

• Whether it is in the interests of justice to grant applications for direct appeal to the Constitutional Court while an application for leave to appeal is pending in the High Court
• Whether an amicus curiae may appeal to the Constitutional Court when the actual party to the litigation is pursuing an appeal in another forum
• Whether a party to litigation (dominus litis) may join an application for appeal lodged by an amicus curiae
• Whether an application for leave to appeal complies with Constitutional Court Rule 19(3)(d) when it fails to disclose a pending application for leave to appeal in another court

Both applications for leave to appeal were dismissed. No order as to costs was made.

An amicus curiae cannot take over litigation and determine the appellate forum for a party who has elected to pursue an appeal in another court. Where a party to litigation (dominus litis) seeks leave to appeal, that party must launch its own application for leave to appeal in terms of the rules and cannot seek to join an application lodged by an amicus curiae. An amicus curiae would ordinarily be permitted to appeal only where the actual parties to the litigation are not seeking to pursue an appeal and there is a clear public interest requiring it to be permitted to lodge the appeal. An application for leave to appeal directly to the Constitutional Court must comply with Constitutional Court Rule 19(3)(d) by disclosing whether an application for leave to appeal is pending in another court. It is not in the interests of justice to grant leave to appeal to the Constitutional Court while an application for leave to appeal is pending in another court, absent unreasonable delay in dealing with that application.

The Court observed that the disappearance of a human being following an arrest is a matter of grave concern and public interest that deserves appropriate attention. However, this public interest factor alone does not justify departure from the rules relating to applications for leave to appeal. The Court noted that it had revised the judgment after becoming aware of a patent error in paragraph 8 of the originally handed down judgment, exercising its power under Rule 42(1)(b) of the Uniform Rules of Court. The Court explained that the patent error suggested the applicant had made a submission which it had not, reflecting negatively on its professional competence, but could be deleted without affecting the sense or substance of the judgment. This demonstrates the Court's careful attention to ensuring accuracy in its judgments and protecting the professional reputation of counsel and litigants.

This case clarifies important procedural principles regarding the role of amici curiae in appellate proceedings before the Constitutional Court. It reinforces the hierarchy of courts and the principle that parties who elect to pursue appeals in one forum cannot simultaneously pursue appeals in another forum. The judgment emphasizes the proper application of Constitutional Court rules governing direct appeals, particularly the requirement to disclose pending applications in other courts. It establishes that amici curiae cannot usurp the role of actual parties (dominus litis) in determining appellate strategy and forum selection. The case also demonstrates the Court's adherence to procedural rules even in matters involving grave human rights concerns, balancing public interest considerations against the need for orderly judicial process. The judgment also illustrates the Court's use of its powers under Rule 42(1)(b) of the Uniform Rules of Court to correct patent errors in judgments.