Understanding the amicus curiae role in litigation and how it affects costs orders

June 1st, 2022
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The term amicus curiae is loosely translated from Latin as a ‘friend of the court’. This traditionally refers to a person (natural or juristic) who is admitted into litigation by a court at such court’s discretion for purposes of assisting the court on matters that are complex and beyond the court’s field of expertise (A Spies ‘The importance and relevance of amicus curiae participation in litigating on the customary law of marriage’ 2016 AHRJ at 247). Given the constitutional dispensation in South Africa, the role of an amicus curiae has developed and evolved over the years into a role of third-party representation in lieu of just a role of assisting the court in complex matters as stated above (Spies (op cit) at 248).

There have been issues in the past regarding the entitlement to costs order by friends of the court, issues that were addressed adequately by the courts in which they arose. This article seeks to provide a detailed discussion on the entitlement to a costs order by an amicus curiae.

Analysing the role of an amicus curiae in litigation

As stated previously, the role of an amicus curiae was traditionally narrowed down to the assisting of a court regarding matters that are complicated and beyond the expertise of the court. Presently the role of an amicus curiae has evolved into a role of third-party representation (Spies (op cit) at 251). It is important to note that an amicus curiae under common law is requested by a court to intervene in a matter and to fulfil its role as a friend of the court, while an amicus curiae under the constitutional dispensation is required to make an application to court. By third-party representation it is meant the representation of third parties, parties that do not have locus standi in certain legal disputes (such as the public). Certain public interest groups join litigation as friends of the court and consequently provide a new or alternative legal position and may go as far as introducing evidence to a court (Spies (op cit) at 252).

Presently, a non-party to litigation is allowed to make a written request to a court of law requesting the right to intervene in the proceedings for purposes of furthering a certain legal position, which it has chosen to advance. This form of intervention was not permitted under common law – it is a result of the country’s constitutional dispensation (G Budlender ‘Amicus Curiae’ (https://constitutionallawofsouthafrica.co.za, accessed 12-5-2022)). This form of intervention emphasises the underlying constitutional principle of participatory democracy and indicates the fact that constitutional litigation affects not only the persons already litigating before the court but also the public.

Given the fact that the role of an amicus curiae in litigation is not equivalent to that of a litigant in the ordinary sense of the word, a question of whether or not an amicus curiae is entitled to a costs order raises inherently complex issues and, therefore, ought to be dealt with effectively.

The Khaya Projects case

The question as to whether an amicus curiae is entitled to a costs order was dealt with in the case of City of Cape Town v Khaya Projects (Pty) Ltd and Others (Pty) Ltd 2016 (5) SA 579 (SCA). In the case the court referred to Hoffmann v South African Airways 2001 (1) SA 1 (CC) at para 63, where it was stated, inter alia, that the role of an amicus curiae is to assist the court by furnishing information and/or arguments regarding questions of fact or law. A friend of the court is essentially not a party to the litigation but believes the court’s verdict may have the potential to affect its interests (Hoffmann (op cit) at para 63).

An amicus curiae has no direct interest in the litigation, it joins the proceedings as a friend and not a litigant, its purpose being to assist the court in matters that may be out of the court’s field of expertise or matters that may be of interest to such a friend of the court (Khaya (op cit) at para 44). The court went as far as holding that an amicus curiae is neither a winner nor a loser in litigation and, therefore, cannot be entitled to be awarded an order for the costs of litigating (Khaya (op cit) at para 44). The court ultimately held that the order of the court of first instance that the appellant in the Supreme Court of Appeal ought to bear the costs of the amicus curiae be set aside.

The Shinga case

The judgment in Shinga and (Society of Advocates, Pietermaritzburg Bar intervening as Amicus Curiae) v S [2007] 1 All SA 113 (N) begins by providing clarification on the role of an amicus curiae (Shinga (op cit) at para 2). From reading the judgment, it is relatively evident that indeed the role of an amicus curiae is limited to assisting a court of law by the providing of information regarding a question of law or a question of fact. An amicus curiae is not a litigating party because same is not entitled to a costs order while a litigating party can be awarded an order for costs because of its direct role in the litigation proceedings as a litigant. In light of the context provided, it is safe to submit that an assertion that a friend of the court will, as a general rule, not be awarded a costs order rests with the role of such an amicus curiae and is also most certainly correct.

Rule 10 of the Rules of the Constitutional Court

Rule 10 of the Rules of the Constitutional Court (the Rules) is titled ‘Amici curiae’ and provides the guidelines and other miscellaneous issues pertaining to an amicus curiae within the Constitutional Court (CC). Rule 10(1) of the Rules clearly states that for an amicus curiae to be admitted into litigation, such friend of the court needs to have an interest in the matter and must also seek written consent from the litigating parties. The Rules go on to further provide that if a written consent has not been secured then any person having an interest in a matter before the court is allowed to apply to the Chief Justice to be admitted into the proceedings as an amicus curiae and the Chief Justice may grant such request if deemed fit (r 10(4)). In this context, the refusal by the litigating parties to provide the consent required for an interested party to be admitted into litigation proceedings as an amicus curiae does not necessarily mean that the application for admission into the proceedings will be unsuccessful, this is because the court to which the application is made to has a discretion to admit a party into the proceedings despite the required consent not being acquired.

Sub-rule 6 of r 10 goes on further to provide that before an amicus curiae can be allowed to intervene in the proceedings, same shall be required to briefly describe, in the application for admission, its interest in the matter, briefly identify the position it will adopt in the litigation proceedings and finally, set out the submissions to be made by such an amicus curiae, the relevance of such submissions to the proceedings, as well as the reasons for believing that such submissions will be useful to the court and different from the submissions of other litigating parties.

From what has been stated regarding r 10, it is clear that an amicus curiae that has been requested to join litigation proceedings in terms of the traditional meaning of an amicus curiae is not an amicus curiae in terms of r 10 of the Rules – the important difference rests in the application made (in terms of the Rules), as well as the request made by a court of law (in terms of the common law). A party requested by a court to join litigation as an amicus curiae is not a friend of the court for purposes of r 10 and, therefore, is not expected to follow the procedures mentioned in the rule, the terms and conditions of such an amicus’ role and/or participation are determined by the invitation or request made by the particular court.

The most important rule, which is highly relevant to this research contribution, is r 10(10), which states unequivocally that an order of a court of law (meaning the CC) dealing with costs may make provision for the payment of costs incurred as a result of an intervening amicus curiae or by such an amicus curiae itself. This rule places focus on the meaning of an amicus curiae under the constitutional dispensation.

In para 63 of the Hoffmann case (op cit) the court stated succinctly that a friend of the court, regardless of the side it joins, is neither a winner nor is it a loser hence it is generally not entitled to be awarded costs. The court went on to further hold that whether there may be circumstances calling for the departure from the general rule, it was not necessary to be decided in the case – meaning that the departure from the general rule referred to was not warranted. This submission by the court clearly indicates that generally an amicus curiae is not entitled to a costs order, however, if a court deems it fit to grant such order because of the existence of exceptional circumstances then it has the discretion to do so (as stated in the Rules).

One important case worth mentioning in relation to the exceptional circumstances referred to above is the landmark decision in Fourie and Another v Minister of Home Affairs and Others 2005 (3) SA 429 (SCA). In that matter, the court found that the conduct of an amicus curiae that was admitted into the proceedings was well beyond the proper conduct required from an amicus curiae and consequently ordered that the amicus pay the costs of litigation of the respondents jointly and severally with the appellants. This is a clear indication and support of the notion that if there exists an exceptional circumstance then a court has the discretion to grant an order, which makes provision for the payment of costs incurred by or as a result of the intervention of an amicus curiae.

Conclusion

There exists a difference between an amicus curiae in terms of common law and in terms of our constitutional dispensation. A friend of the court is traditionally requested by a court to join the litigation proceedings to assist the court with complex issues but can also represent and protect the interests of an unrepresented party. A friend of the court in the new constitutional order makes an application to court seeking to be admitted as an amicus curiae, the court does not make a request to such party and also, such an amicus is required to seek written consent from all the parties involved in the litigation proceedings. In making the distinction between the two, the request made by a court (under common law) and the application made by a person who has an interest in a matter before a court under the constitutional order) must be considered. Additionally, the consent required also emphasises the difference between an amicus curiae under common law and one under the constitutional order because it is not a general rule under common law.

Under common law, an amicus curiae is merely a friend of the court and not a litigating party, hence such party is generally not entitled to an order for the costs of litigation. Under the constitutional dispensation, a court can make an order dealing with costs, such order may make provision for the payment of costs incurred by or as a result of an intervention by an amicus curiae.

Mpho Adam Titong LLB (NWU) is an LLM graduate at the North-West University in Potchefstroom.

This article was first published in De Rebus in 2022 (June) DR 12.

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