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

This judgment deals with two applications made at the commencement of appeal proceedings in the Minister of Health v Treatment Action Campaign case. First, Professor Mhlongo, head of the Department of Medicine and Primary Health Care at the Medical University of South Africa, applied on the morning of the first day of the hearing to be admitted as amicus curiae to present new evidence relating to: (1) the withdrawal by manufacturers of an application to licence nevirapine in the United States for prevention of mother-to-child transmission of HIV; and (2) evidence challenging the scientific integrity of the clinical trial that led to approval of nevirapine for such use. Second, Cotlands Baby Sanctuary, an already admitted amicus, sought leave to adduce further evidence regarding the specific circumstances in which HIV-positive children live and die. The application for leave to appeal was lodged on 8 January 2002, and Professor Mhlongo's application was only made on 2 May 2002 without prior application for condonation of the delay. Both applications were refused by the Court.

• What are the requirements and principles for admission as amicus curiae in Constitutional Court proceedings?
• When may an amicus curiae introduce new evidence in appeal proceedings?
• What constitutes appropriate timing for amicus curiae applications?
• Under what circumstances may an amicus adduce factual material not on the record under Rule 30?
• What is the proper role and duty of an amicus curiae to the Court?

Both applications were refused. Professor Mhlongo's application to be admitted as amicus curiae was refused. Cotlands Baby Sanctuary's application to adduce further evidence was refused.

The binding legal principles established are: (1) Admission as amicus curiae in the Constitutional Court is discretionary and depends on whether the amicus will provide assistance the Court would not otherwise enjoy, raising relevant new contentions useful to the Court; (2) Applications for amicus status must be made within 10 days of lodging the application for leave to appeal, failing which condonation must be sought without delay; (3) An amicus has a special duty to provide cogent, helpful submissions that assist the Court, raise new contentions, and not repeat arguments already made; (4) It is ordinarily inappropriate for an amicus to introduce new contentions based on fresh, untested evidence, particularly when this would open entirely new issues on appeal; (5) The Court will refuse amicus applications or evidentiary applications where allowing them would be disruptive, prejudicial to parties, require postponement of urgent matters, or otherwise not be in the interests of justice; (6) Under Rule 30, an admitted amicus may only canvass factual material not on the record if such facts are common cause, incontrovertible, or of an official/scientific/technical/statistical nature capable of easy verification; (7) Rule 30 has no application where the facts sought to be canvassed are genuinely disputed, as this demonstrates they are not incontrovertible or capable of easy verification; and (8) The Court will refuse applications to adduce further evidence where existing evidence is already sufficient for determination of the issues and the new evidence might open new areas of dispute not strictly germane to the core issues.

The Court made several non-binding observations: (1) It noted that accepting there was "some evidence of this nature on the record," the additional evidence sought by Cotlands, while "not irrelevant," and potentially "useful in educating the Court" about conditions in which HIV-positive children live, was ultimately unnecessary because "the evidence on record was sufficient for it to understand the plight of children living with HIV/AIDS"; (2) The Court observed that the fundamental nature of the case was "about the constitutional right to health care, in particular, the reduction of mother-to-child transmission of HIV," implicitly suggesting that evidence focused on living conditions of children already infected was somewhat peripheral to the core constitutional issues; (3) The Court acknowledged that for determining the constitutional issues, it "needed no further evidence of the living conditions of HIV children"; and (4) The Court noted that a party's objection to an amicus application on grounds of timing and inability to respond effectively is a relevant consideration, particularly where admission "might well have opened up a new area of dispute on an issue which was not strictly germane to the issues before the Court." These observations provide guidance on the Court's approach to assessing relevance and sufficiency of evidence in constitutional matters, but are not necessary to the decision.

This judgment is significant in South African constitutional procedure as it comprehensively sets out the principles, requirements, and limitations governing amicus curiae participation in Constitutional Court proceedings. It clarifies: (1) the discretionary nature of amicus admission; (2) the timing requirements for amicus applications; (3) the special duty of an amicus to assist the Court with new, cogent contentions rather than repeating existing arguments; (4) the general inappropriateness of amici introducing new evidence, particularly untested evidence opening entirely new issues on appeal; (5) the strict conditions under Rule 30 for canvassing factual material not on the record; and (6) the Court's concern for procedural fairness, avoiding disruption, and ensuring timely resolution of urgent matters. The case provides important guidance on the proper role and limits of amicus curiae participation, which is a distinctive feature of South African constitutional litigation. It balances the value of amicus assistance with the need for orderly, fair, and efficient proceedings.