Role of an amicus curiae

10 Sep 2021 4:02 pm by Merilyn Kader

In Helen Suzman Foundation v McBride and Others [2021] 2 All SA 727 (SCA), amici have a rightful role to play provided their participation is kept within appropriate bounds and they don’t depart from the basis on which they seek to be admitted.

By Merilyn Rowena Kader LLB (Unisa), Legal Editor at LexisNexis South Africa.

Civil procedure - Role of amicus curiae: The first respondent (Mr McBride) in Helen Suzman Foundation v McBride and Others [2021] 2 All SA 727 (SCA) was the executive director of the Independent Police Investigative Directorate (IPID), appointed to that position on 1 March 2014, in terms of s 6 of the Independent Police Investigative Directorate Act 1 of 2011 (the Act). Section 6 provides for the appointment of the executive director of IPID, and for the renewal of the incumbent’s tenure after the expiry of the first five years in office. Shortly before Mr McBride’s five-year term of office ended, he engaged the minister about its renewal and was informed that his contract would not be renewed. He challenged the minister’s right to unilaterally make such a decision and demanded that the matter be referred to the Parliamentary Committee on Policing (the PCP) for its decision.

After discussions appeared to be futile, Mr McBride approached the High Court for relief. In his founding affidavit, he accepted that he had no right to be re-appointed but wished to ensure that the proper process in relation to his possible re-appointment or rejection thereof, be followed. Before the matter was heard, the appellant, the Helen Suzman Foundation (the HSF) successfully applied to the court below to be admitted as an amicus. It stated that its aim was to show that neither of the parties’ interpretation of s 6(3)(b) of the Act was correct. It sought to advance an alternative interpretation to the effect that the appointment of the Executive Director of IPID was renewable at his instance and not at the instance of either of the respondents.

After the admission of the amici, the main parties settled the matter, and the settlement agreement was made an order of court. The HSF obtained leave to appeal from the present court.

The court, per Navsa ADP and Plasket JA (Dambuza, Schippers JJA and Goosen AJA concurring), held that the central issue in the appeal was whether s 6(3) of the Act could be construed in the way that the HSF contended.

The interpretation eventually agreed on by Mr McBride, the PCP and the Minister was that the power to extend the incumbent’s tenure for a second term was vested in the PCP. However, the HSF contended that the incumbent had an unfettered option to continue in office for a second term. The foundation of the HSF’s interpretation of s 6(3) was that because the PCP had the power to renew undermined IPID’s independence, it was necessary to interpret the section in a different way that was purportedly constitutionally compatible. The court referred to a series of cases, which served to refute that premise. It held that there was no need for the HSF’s type of interpretation in order to save s 6(3) from constitutional invalidity because the PCP’s powers were not in conflict with IPID’s independence. In any event, the said interpretation was untenable and could lead to absurd results.

Commenting on the role of an amicus, the court highlighted the importance of amici playing their rightful role while their participation is kept within appropriate bounds. In this case, the HSF departed from the basis on which it had sought to be admitted and attempted to broaden the scope of the challenge to include the lack of guidelines in the processes of the PCP. That was impermissible.

The appeal was dismissed.

Merilyn Rowena Kader
Legal Editor at LexisNexis