Something had been gnawing at my legal conscience ever since I saw the admission of Corruption Watch as an amicus curiae in the Constitutional Court matters of the Economic Freedom Fighters and the Democratic Alliance versus the President and others. I was interested in seeing what the basis was for their admission as amicus. This post is by no means a legal article and I will thus not traverse the law dealing with the admission of persons or parties as amici curiae, save to touch on the most salient features.

An amicus curiae, for those not familiar with this legal term, is, nothing more than a 'friend of the court'. As 'friend of the court', the amicus has to walk the thin line and remain alive to the fact that they cannot ever be a friend or be seen to be a friend of the parties to the litigation as well. So, what is it that these prospective friends of the court must advance in their applications for admission as amicus?

The test for admission as amicus curiae, at its most fundamental level (albeit the Constitutional Court has added a few more requirements), is a direct and substantial interest in the subject matter of litigation. However, it has been held to be more appropriate, in certain instances, for parties to apply to intervene as parties, rather than to apply to be admitted as amici.

An important role which is played by an amicus therefore is that they must assist (through specialized knowledge and experience gained on a subject matter) by highlighting aspects which the Court, in their absence, would be the poorer without. This means that nothing which is obvious, nothing which is common cause, nothing which is easily discernible or readily understood, can or should be advanced by these 'friends' and impartial advisers as that would serve no purpose other than to waste the Court's valuable time. Therefore, after the amicus have made their submissions, everyone, especially the Court (but also the litigants), must be wiser on that particular aspect or subject. The amicus can thus never be admitted to merely bolster the case of one or other litigant or intervening or joining party.
My curiosity then led me to the Notion of Motion and the Founding Affidavit filed by Corruption Watch. What I did discern from these papers is exactly who Corruption Watch is, what it is that they do and why they argued they should be admitted as friends of the Court. At the heart of their application is providing guidance on the correct interpretation of the powers and functions of the Public Protector, especially the effect of her recommendations and suggested remedial action. This is in my view was superfluous and I say so for the reasons here under.

The Doctrine of Separation of Powers finds application in South Africa. In terms of this doctrine, the three spheres (albeit I prefer to call them arms to avoid the confusion with the national, provincial and local spheres) of government, being the Executive, the Legislature and the Judiciary with their respective duties and responsibilities must ( as far as practically possible), remain distinct, independent and separate, with one arm cautious not to encroach upon the area of responsibility of another (others). The Executive, as we all know, must execute the policies of government in compliance with the laws. The Legislature on the other hand, must make the laws, as well as amend and repeal those laws where necessary. The Judiciary in turn, must, when there is a dispute about either the interpretation of a law(s), the constitutional validity of a law(s) or the conduct of a person (natural or juristic) or an institution and/or when there is a dispute about the correct application of a law, determine what the law is, what the law means, how the law is to be applied and where whether or not conduct or law is constitutionally valid. It cannot therefore be that the Judiciary (read Constitutional Court Justices), who are capable, would need an amicus to assist them in the performance of their role of interpreting and applying legislation. For that, in a nutshell, is what Corruption Watch sought to do.
Corruption Watch argue in their papers (supported by statistics) that they assist certain persons (who for one reason or the other cannot do so themselves), in lodging complaints with the Office of the Public Protector and that in certain instances, they (Corruption Watch) work with the Office of the Public Protector and certain Agencies in their fight against corruption. I must hastily add that they play a critical role. Corruption Watch further cites the incidence of public-sector corruption and the adverse effect disregarding the findings of the Public Protector might have, or in fact, has. On the incidence of public sector corruption in South Africa, we have another performing Chapter 9 institution, being the Office of the Auditor General which makes these stats on the levels of corruption available on at least an annual basis. The number of complaints from members of the public is thus representative of a sub-category of the levels of wide-spread corruption and thus not uniquely helpful nor novel. The statistics from the Office of the Public Protector itself, would be a more accurate reflection of complaints lodged both through Corruption Watch and by members of the public independently.

Corruption Watch then argues (as they did in the matter of the Democratic Alliance v The SABC and Others, that the powers of the Public Protector ought to be affirmed (or reaffirmed). This in my view was adequately encapsulated and argued in the respective applications of the Economic Freedom Fighters and the Democratic Alliance. I have long held that the manner in which the President (and for this I laid and continue to lay the blame squarely at the door of his legal advisors) and by implication, the National Assembly, dealt with the Public Protector's report (Secure in Comfort), in a legally flawed manner. Ultimately, it is the role of the Courts to interpret and apply legislation. The case before the Constitutional Court (even prior to certain concessions having been made by the President) was and remains clear cut. We should not, as a nation, have gotten to that stage. But, the fact that we are, does not make the case a complicated matter at all. All-important yes, complicated, no.

So, do I think that Corruption Watch ought to have been admitted as amicus? In my personal opinion, a big, resounding, no. As an institution which, by their own admission collaborated with or worked with the Office of the Public Protector on certain matters, they were and are too close to the bone not to be friends of litigants or joiners. Does Corruption Watch shed any specialist knowledge and light on the subject matter of the litigation and do they assist the Court? Again, in my humble opinion (and it might be a worthless opinion), a resounding, no. Do they have a substantial interest in the subject matter of the litigation? Yes, they absolutely do. But, they are a party with a material interest in the outcome of the litigation, too close to be impartial and objective (not that objectivity is relevant in this argument), but, they ought to have been requested to intervene or join as parties.

The one aspect I did not mention, was the fact that public interest in a matter of this magnitude, is critical. I cannot, however, conclude that Corruption Watch were joining as amicus for greater public good. That fine line, for me, was too blurred.