Transcript Slide 1

Promoting Socio-Economic Rights Litigation in
South Africa and Uganda: The Amicus
Machinery
Christopher Mbazira,
Associate Professor
School of Law, Makerere University
Outline
Concept of amicus
ESCR in South Africa
ESCR in Uganda
Amicus in South Africa
Amicus in Uganda
Way forward
ESCRs in South Africa
26. Housing
Everyone has the right to have access to adequate housing.
The state must take reasonable legislative and other
measures, within its available resources, to achieve the
progressive realisation of this right.
No one may be evicted from their home, or have their home
demolished, without an order of court made after
considering all the relevant circumstances. No legislation
may permit arbitrary evictions.
ESCRs in South Africa
27. Health care, food, water and social security
Everyone has the right to have access to
 health care services, including reproductive health care;
 sufficient food and water; and
 social security, including, if they are unable to support
themselves and their dependants, appropriate social
assistance.
The state must take reasonable legislative and other measures,
within its available resources, to achieve the progressive
realisation of each of these rights.
No one may be refused emergency medical treatment.
ESCR in Uganda

Some rights in Bill of Rights, others in NODPSP
 Education,
Art. 30
 Rights of the family, Art. 31
 Rights of women, Art. 33
 Rights of children, Art. 34
 Rights of PWDs, Art. 35
 Rights of minorities, Art. 36
 Right to culture, Art. 37
 Clean and healthy environment, Art. 39
 Economic rights, Art. 40
Article 8A
8A National Interest
(1) Uganda shall be governed based on principles of
national interest and common good enshrined in
the national objectives and directive principles of
state policy
(1)
Parliament shall make relevant laws for the
purposes of giving full effect to clause (1) of this
Article
Concept of Amicus Curiae
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“Friend of court”? – simplistic
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Black’s Law Dictionary
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A person who is not party to a law suit but who petitions the
court or is requested by the court to file a brief in the action
because that person has a strong interest in the subject matter
Meriam-Webster Dictionary

A professional person or organisation that is permitted by the
court to advise it in respect to some matter of law that directly
affects the case in question
Concept of Amicus
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Procedure has evolved and gained acceptance from courts
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1946 – 2001, US Supreme Court received 15,214 briefs
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International/regional tribunals now allowing amicus
Amicus in SA
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Judicial endorsed can be traced to case of
Connock’s (SA) Motor Co Ltd v Pretorius (1939)
TPD 355
The definition of the term is to be found in several legal
dictionaries [that] speak of an amicus as a bystander –
someone who is present in court and not concerned with
the matter in hand, who may be counsel or not … if he
observes that judge in doubt about something … asks leave
to come to his assistance … and help the judge by pointing
out what appears to be in danger of being overlooked
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Amicus role is now legislated in the rules of court
Rule 10 of the Rules of the Con Court
(1)
(2)
(3)
(4)
Subject to these rules, any person interested in any matter
before the Court may, with the written consent of all parties in
the matter before the Court, … be admitted therein as amicus
curiae ….
…
…
If written consent referred to in subrule (1)has not been secured,
any person who has interest in any matter … may apply to the
Chief Justice to be admitted as amicus curae
Constitutional Court appreciating amicus in
Grootboom case
I might mention that we were helped at the hearing in a
most considerable way by the participation of the Human
Rights Commission and the Community Law Centre of the
University of the Western Cape. Counsel for the Legal
Resources Centre appeared on their behalf and succeeded
in broadening the debate so as to require the Court to
consider the right of all South Africans to shelter, whether
they had children or not. .... The case showed the extent to
which lawyers can help the poor to secure their basic rights
Justice Sachs
In Re: Certain Amicus Curiae Applications; Minister of Health
and Others v Treatment Action Campaign and Others
The role of an amicus is to draw the attention of the court to
relevant matters of law and fact to which attention would not
otherwise be drawn. In return for the privilege of participating in
the proceedings without having to qualify as a party, an amicus
has a special duty to the court. That duty is to provide cogent and
helpful submissions that assist the court. The amicus must not
repeat arguments already made but must raise new contentions;
and generally these new contentions must be raised on the data
already before the court. Ordinarily it is inappropriate for an
amicus to try to introduce new contentions based on fresh
evidence
Amicus Curiae in Uganda??
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No legislation on subject of amicus common law position
considers amicus friend of court
an amicus curiae is invited by the Court and he should be an
independent person without proprietary interest in the case
IGG & Anor v Blessed Constructors Limited (1992) VI KALR 160
[F]or orderly conduct of litigation, parties must have the authority to
summon their witnesses. One cannot simply walk into a court room
and announces himself as a witness unsolicited. Secondly, amicus
curiae means a friend of court. Therefore court should be left to
choose or approve its friends. To ensure orderly proceedings
witnesses must be summoned by parties to the suit or
court. Amuzata cannot qualify to be amicus curiae
Oboth Marksons v NRM CA No. 21 of 2009
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The Uganda Law Society has argued for the
amendment of the Civil Procedure Rules to include
the subject of amicus:
We recommend that the principles governing
applications for recusal of a judicial officer and amicus
curiae be incorporated in to the Civil Procedure Rules.
The committee also recommends that a set of rules be
formulated and incorporated in the rules for instances
where a person wishes to submit an amicus brief for
an unrepresented party in a suit
Way Forward
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Role of amicus needs to be appreciated and
expressly legislated
Proposed amendments to CP Rules need to be
comprehensive
Law Clinics have a role to play in nurturing the
procedure