In re Certain Amicus Curiae Applications relating to Minister of Health and Others v Treatment Action Campaign and Others

The matter arose during an appeal by the Minister of Health and others against orders made by the High Court in litigation involving the Treatment Action Campaign concerning access to nevirapine to prevent mother-to-child transmission of HIV. At the commencement of the Constitutional Court hearing, Professor Mhlongo applied to be admitted as amicus curiae in order to introduce new scientific evidence challenging the integrity of clinical trials underlying the approval of nevirapine. Separately, Cotlands Baby Sanctuary, already admitted as an amicus, sought leave under Rule 30 to adduce further evidence concerning the living conditions and deaths of HIV-positive children. Both applications were made at a very late stage, on the first day of the hearing.

Both the application by Professor Mhlongo for admission as amicus curiae and the application by Cotlands Baby Sanctuary to adduce further evidence were refused.

The judgment is significant for clarifying and reinforcing the procedural role and limits of amici curiae in the Constitutional Court. It underscores the importance of timeliness, the prohibition against introducing disputed new evidence on appeal, and the Court’s control over its own processes, particularly in urgent constitutional litigation.