156 RELEVANCE AND IMPORTANCE OF THE AMICUS CURIAE PARTICIPATION IN MAYELANE V NGWENYAMA [DISCUSSION OF MAYELANE V NGWENYAMA 2013 4 SA 415 (CC)] Amanda Spies LLB LLM (UP) PHD (WITS) Senior Lecturer, Department Public, Constitutional and International Law, University of South Africa* 1 Introduction An amicus curiae (“friend of the court”) is a non-litigious party to litigation that assists courts to reach a decision on areas of the law it regards as complex and beyond its expertise. 1 Over the years, amicus curiae participation has evolved and today, it enables courts to understand the point of view of those who will be affected by their decisions, recognising that the public has a legitimate interest in infuencing the way in which law is made. 2 Amicus curiae participation lies solely within the discretion of a court and, organisations or individuals wanting to participate as such have to approach a relevant court for permission to do so. The Constitutional Court has set the benchmark for amicus curiae participation in South African law, as it was the frst court to offcially adopt rules that regulated this form of participation. 3 In terms of these rules, a party wishing to participate as amicus curiae needs to lodge an application clearly setting out its interest in the matter, the position it plans to adopt and indicate that its submissions would be relevant and different from those of the litigating parties. 4 Although the Constitutional Court rule suggests that admission as amicus curiae can be sought with the * This case note is based on a case study that formed part of my PHD study entitled Amicus Curiae Participation, Gender Equality and the South African Constitutional Court. 1 M Lowman “The Litigating amicus curiae: When Does the Party Begin After the Friends Leave” (1992) 41 Am U L Rev 1243 1244. 2 C Murray “Litigating in the Public Interest: Intervention and the amicus curiae” (1994) 10 SAJHR 240 246; P Bryden “Public Interest Intervention in the Courts” (1987) 66 Can BR 490 513. 3 Rule 10 of the Constitutional Court Rules GN R 1675 in GG 25726 of 31-10- 2003. Other courts have adopted similar rules see for example rule 16A of the Uniform Court Rules first promulgated under GN 315 in GG 19834 of 12-03-1999; rule 16 of the Supreme Court of Appeal Rules first promulgated under GN 1523 in GG 19507 of 27-11-1998; rule 7 of the Labour Court Rules first promulgated under GN 1665 in GG 17495 of 14-11-1996; rule 7 of the Labour Appeal Court Rules first promulgated under GN 1666 in GG 17495 of 14-10-1996; rule 14 of the Land Claims Court Rules first promulgated under GN 300 in GG 17804 of 21-02-1997. 4 Rule 10(6) of the Constitutional Court Rules; G Budlender “Amicus Curiae” in S Woolman, T Roux, M Bishop (eds) Constitutional Law of South Africa 2 ed (OS 7 2006) 8-1. 156 RELEVANCE AND IMPORTANCE OF THE AMICUS CURIAE PARTICIPATION IN MAYELANE V NGWENYAMA [DISCUSSION OF MAYELANE V NGWENYAMA 2013 4 SA 415 (CC)] Amanda Spies LLB LLM (UP) PHD (WITS) Senior Lecturer, Department Public, Constitutional and International Law, University of South Africa* 1 Introduction An amicus curiae (“friend of the court”) is a non-litigious party to litigation that assists courts to reach a decision on areas of the law it regards as complex and beyond its expertise. 1 Over the years, amicus curiae participation has evolved and today, it enables courts to understand the point of view of those who will be affected by their decisions, recognising that the public has a legitimate interest in infuencing the way in which law is made. 2 Amicus curiae participation lies solely within the discretion of a court and, organisations or individuals wanting to participate as such have to approach a relevant court for permission to do so. The Constitutional Court has set the benchmark for amicus curiae participation in South African law, as it was the frst court to offcially adopt rules that regulated this form of participation. 3 In terms of these rules, a party wishing to participate as amicus curiae needs to lodge an application clearly setting out its interest in the matter, the position it plans to adopt and indicate that its submissions would be relevant and different from those of the litigating parties. 4 Although the Constitutional Court rule suggests that admission as amicus curiae can be sought with the * This case note is based on a case study that formed part of my PHD study entitled Amicus Curiae Participation, Gender Equality and the South African Constitutional Court. 1 M Lowman “The Litigating amicus curiae: When Does the Party Begin After the Friends Leave” (1992) 41 Am U L Rev 1243 1244. 2 C Murray “Litigating in the Public Interest: Intervention and the amicus curiae” (1994) 10 SAJHR 240 246; P Bryden “Public Interest Intervention in the Courts” (1987) 66 Can BR 490 513. 3 Rule 10 of the Constitutional Court Rules GN R 1675 in GG 25726 of 31-10- 2003. Other courts have adopted similar rules see for example rule 16A of the Uniform Court Rules first promulgated under GN 315 in GG 19834 of 12-03-1999; rule 16 of the Supreme Court of Appeal Rules first promulgated under GN 1523 in GG 19507 of 27-11-1998; rule 7 of the Labour Court Rules first promulgated under GN 1665 in GG 17495 of 14-11-1996; rule 7 of the Labour Appeal Court Rules first promulgated under GN 1666 in GG 17495 of 14-10-1996; rule 14 of the Land Claims Court Rules first promulgated under GN 300 in GG 17804 of 21-02-1997. 4 Rule 10(6) of the Constitutional Court Rules; G Budlender “Amicus Curiae” in S Woolman, T Roux, M Bishop (eds) Constitutional Law of South Africa 2 ed (OS 7 2006) 8-1. 2015 (1) StellLR 156 © Juta and Company (Pty) Ltd