1 Murray, C “Litigating in the public interest: Intervention and the amicus curiae” (1994) South African Journal on Human Rights 240CrossRefGoogle Scholar at 242.

2 Mubangizi, JC and Mbazira, C “Constructing the amicus curiae procedure in human rights litigation: What Uganda can learn from South Africa” (2012) 16 Law, Democracy & Development 199Google Scholar at 200.

3 For parity of reasoning see Mubangizi and Mbazira, ibid.

4 Botswana is the longest relatively stable African democracy, having become a constitutional democracy in 1966. South Africa is a relatively new entrant to democracy. It became democratic in 1990 with the dissolution of the apartheid system. It held its first democratic elections in 1994 and in 1996 adopted a constitution that is hailed the world over as a very ambitious legal instrument. Sunstein has described it as “the most admirable constitution in the history of the world”; see Sunstein, CRDesigning Democracy: What Constitutions Do (2001, Oxford University Press)CrossRefGoogle Scholar at 261.

5 See for instance the recent judgment of the Botswana Court of Appeal in Molefi Selabo Ramantele v Edith Modipane Mmusi MAHLB -000836-10, where the Court of Appeal held that it was possible, without regard to the constitution, to determine the fairness of the rule of customary law that states that a last born male son is entitled to inherit the dwelling house of his parents at the exclusion of his female siblings.

6 Mubangizi and Mbazira “Constructing the amicus curiae procedure”, above at note 2 at 200.

7 Ibid.

8 Bellhouse, J and Lavers, A “The modern amicus curiae: A role in arbitration?” (2004) 23 Civil Justice Quarterly 156Google Scholar at 187.

9 Mohan, SC “The amicus curiae: Friends no more?” (Research Collection School of Law (open access) paper 975) (2010) Singapore Journal of Legal Studies 352Google Scholar, available at: <http://ink.library.smu.edu.sg/cgi/viewcontent.cgi?article=2927&context=sol_research> (last accessed 12 May 2015).

10 Khan, SAP Ramanatha Aiyar's the Law Lexicon (2nd ed, 2012, Lexis Nexis)Google Scholar at 102.

11 Garner, BGarner's Dictionary of Modern Legal Usage (3rd ed, 1998, Oxford University Press)Google Scholar at 40.

12 Thomson, HCorpus Juris Secundum (vol 3B, 2003, West Publishing Company)Google Scholar at 170.

13 592 F 2D 1196, 1198 (1st cir 1979) at 386.

14 Allen, RE (ed) Concise Oxford Dictionary (8th ed, 1990, Oxford University Press)Google Scholar at 35.

15 See Garner, BBlack's Law Dictionary (7th ed, 1999, Deluxe)Google Scholar at 83.

16 See Meriam-Webster Dictionary at: <http://www.merriam-webster.com/dictionary/amicus%20curiae> (last accessed 10 September 2013).

17 Lowman, MK “The litigating amicus curiae: When does the party begin after the friends leave?” (1992) 41 The American University Law Review 1243Google Scholar at 1244.

18 Mohan “The amicus curiae”, above at note 9 at 3.

19 378 US 184 (1964) at 197.

20 Covey, FM Jr “Amicus curiae: Friend of the court” (1959 – 1960) 9 De Paul Law Review 30Google Scholar at 34–35.

21 See Beckwith, ER and Sobernheim, R “Amicus curiae: Minister of justice” (1948) 17 Fordham Law Review 38Google Scholar.

22 Mohan “The amicus curiae”, above at note 9 at 5.

23 See RWM Simpson and M Vasaly “The amicus brief: How to write it and use it effectively” (3rd ed, 2011, American Bar Association) at 97. See also Angell, E “The amicus curiae: American development of English institutions” (1967) 16 International & Comparative Law Quarterly 1017CrossRefGoogle Scholar at 1017, dealing with the admission of amici curiae in Roman law.

24 Mohan “The amicus curiae”, above at note 9 at 4.

25 Gao, HS “Amicus curiae in WTO dispute settlement: Theory and practice”(2006) 1 China Rights Forum 51Google Scholar at 51.”

26 Lowman “The litigating amicus curiae”, above at note 17 at 1244.

27 Krislov, S “The amicus curiae brief: From friendship to advocacy” (1963) 72 Yale Law Journal 694CrossRefGoogle Scholar at 694–95.

28 Mubangizi and Mbazira “Constructing the amicus curiae procedure”, above at note 2 at 201.

29 US (3 Cranch) 267 (1806).

30 Mubangizi and Mbazira “Constructing the amicus curiae procedure”, above at note 2 at 201.

31 21 US 1 (1823). See also ibid.

32 Mubangizi and Mbazira, ibid.

33 The common law of Botswana and South Africa is Roman-Dutch common law with heavy infusions of English common law via colonial heritage.

34 See Kearney, J and Merril, T “The influence of amicus curiae briefs on the Supreme Court” (2000 ) 148 University of Pennsylvania Law Review 743CrossRefGoogle Scholar at 743. See also Kelly, LJ “Best friends? Supreme Court law clerks on effective amicus curiae briefs” (2004) 20 Journal of Law and Politics 33Google Scholar at 34.

35 See Collins, PFriends of the Supreme Court: Interest Groups and Judicial Decision Making (2008, Oxford University Press)CrossRefGoogle Scholar at 3, quoted in Mubangizi and Mbazira “Constructing the amicus curiae procedure”, above at note 2 at 201.

36 Id at 202.

37 In Mapp v Ohio 367 US 643 (1961), the court adopted the course suggested by the amicus, overruled its previous decision and held, as urged by the amicus, that the rule prohibiting the admissibility of illegally obtained evidence must be applied in relation to both state governments and the federal government.

38 Mubangizi and Mbazira “Constructing the amicus curiae procedure”, above at note 2 at 202.

39 Lowman “The litigating amicus curiae”, above at note 17 at 1244.

40 Ibid.

41 Ibid.

42 Jonas, O “Human rights enforcement and the question of standing before the High Court of Botswana: A comparative analysis” (2012) 2 East African Journal of Peace and Human Rights 387Google Scholar at 410.

43 Ibid.

44 Ibid.

45 See Mohamed, A “Individual and NGO participation in human rights litigation before the African Court of Human and Peoples' Rights: Lessons from the European and inter-American courts of human rights” (1999) 43 Journal of African Law 201CrossRefGoogle Scholar at 205.

46 Id at 213.

47 See Kearney and Merril “The influence of amicus curiae briefs”, above at note 34 at 744.

48 Viljoen, F and Abebe, AK “Amicus curiae participation before regional human rights bodies in Africa” (2014) 58/1 Journal of African Law 22CrossRefGoogle Scholar at 24.

49 Krislov “The amicus curiae brief”, above at note 27 at 695.

50 Viljoen and Abebe “Amicus curiae participation”, above at note 48 at 25.

51 See the speech of former Justice Sandra Day O'Connor delivered on the occasion of her acceptance of the Henry Clay Medallion from the Henry Clay Memorial Foundation on 4 October 1996, available at: <http://henryclay.org/?page_id=372> (last accessed 4 September 2013).

52 Ibid.

53 2002 (5) SA 713, para 5.

54 (CCT17/00) [2000] ZACC 17; 2001 (1) SA 1; 2000 (11) BCLR 1235; [2000] 12 BLLR 1365.

55 Id, para 63.

56 Viljoen and Abebe “Amicus curiae participation”, above at note 48 at 25. See also Steffek, J and Ferretti, M “Accountability or ‘good decisions’? The competing goals of civil society participation in international governance” (2009) 23/1 Global Society 1Google Scholar at 37.

57 Caldeira, GA and Wright, JR “Organized interests and agenda-setting in the US Supreme Court” (1988) 82 American Political Science Review 1109CrossRefGoogle Scholar at 1111.

58 Id at 1112.

59 Collins, P Jr “Friends of the court: Examining the influence of amicus curiae participation in the US Supreme Court litigation” (2004) 38/4 Law and Society Review 807CrossRefGoogle Scholar at 807.

60 Mohamed “Individual and NGO participation”, above at note 45 at 205.

61 Spriggs, JF II and Wahlbeck, PJ “Amicus curiae and the role of information at the Supreme Court” (1997) 50 Political Research Quarterly 365CrossRefGoogle Scholar at 372.

62 Koch, J “Making room: New directions in third party intervention” (1990) 48 University of Toronto Faculty of Law Review 151Google Scholar at 152.

63 Ibid.

64 Spriggs and Wahlbeck “Amicus curiae and the role of information”, above at note 61 at 385.

65 Lynch, KJ “Best friends? Supreme Court law clerks on effective amicus curiae briefs” (2004) 20 Journal of Law & Politics 33Google Scholar at 40.

66 Id at 42.

67 Viljoen and Abebe “Amicus curiae participation”, above at note 48 at 25.

68 See Jonas “Human rights enforcement”, above at note 42 at 411.

69 Viljoen and Abebe “Amicus curiae participation”, above at note 48 at 25.

70 Viljoen and Abebe, ibid. See also Simmons, O “Picking friends from the crowd: Amicus participation as political symbolism” (2009) 42/1 Connecticut Law Review 187Google Scholar at 233.

71 Bryden, P “Public interest intervention in the courts” (1987) 66 Canadian Bar Review 490Google Scholar at 508–09; Schacter, J “The confounding common law originalism in recent Supreme Court statutory interpretation: Implications for the legislative history debate and beyond” (1998) 51/1 Stanford Law Review 1CrossRefGoogle Scholar at 47.

72 Viljoen and Abebe “Amicus curiae participation”, above at note 48 at 26.

73 Jeebhai v Minister of Home Affairs 2009 (5) SA 54 (SCA).

74 Van Der Merwe and Another v The Magistrate 2005 JDR 0072 (T), para 19.

75 Shelton, D “The participation of nongovernmental organizations in international judicial proceedings” (1994) 88/4 American Journal of International Law 611CrossRefGoogle Scholar at 612.

76 Tobias, C “Standing to intervene” (1991) Wisconsin Law Review 415Google Scholar at 415.

77 Brickhill, J and du Plessis, M “Two's company. Three's a crowd in investor-state arbitration (Piero v South Africa)” (2011) 27(1) South African Journal on Human Rights 152CrossRefGoogle Scholar at 152.

78 Ibid. The learned judge stated at para 52: ‘‘The amicus contended that the respondents ought to pay their costs for having unreasonably opposed their application to be admitted as amicus curiae in this court. In this matter the submissions of the amicus were of considerable assistance to the court. There were no proper grounds for opposing its application and I agree that it is appropriate that the respondents pay such costs.”

79 Mubangizi and Mbazira “Constructing the amicus curiae procedure”, above at note 2 at 203.

80 1939 TPD 355 at 356.

81 Id at 357.

82 Amici participation was originally provided for under rule 9 of the Constitutional Court Rules of 1995, now rule 10 of the Constitutional Court Rules of 2003.

83 Rule 16A of the Rules Regulating the Conduct of Proceedings of the Several Provincial and Local Divisions of the Supreme Court of South Africa 1965 was introduced by GN 849 of 25 August 2000.

84 Constitutional Court Rules, 2003, rule 10(4).

85 2006 (6) SA 195 (CC), paras 6 and 9. In this case, the Constitutional Court departed from its own decision in Re Certain Amicus (above at note 53) where it had held that, where the parties' consent was sought and obtained by an amicus, it stood excused from seeking leave to intervene from the chief justice. For the process of admission as an amicus curiae in South Africa, see du Plessis, M et al. Constitutional Litigation (2013, Juta and Co)Google Scholar at 53.

86 M du Plessis et al, ibid.

87 See Budlender, G “Amicus curiae” in Woolman et al. (eds) Constitutional Law of South Africa (2d ed, 2006, Juta and Co)Google Scholar 1 at 8–10. The learned author argues that “the power to permit the amicus to offer oral argument would appear to be derived from rule 32(2). Rule 32(3) states that the court or the chief justice may give such directions in matters of practice, procedure and the disposal of any appeal, application or other matter as the court or chief justice may consider just and expedient. The test is therefore whether it is ‘just and expedient’ to permit the amicus curiae to present oral argument. Given the Court's reliance on oral argument as an opportunity for members of the Court to debate issues raised in heads of argument, it is easy to understand why the Court will ordinarily allow a person who has been admitted as an amicus – and whose submissions by definition are different from those of the parties and may be useful to the court – to submit oral argument. Time limits are usually laid down to ensure that the hearing of the matter is not unnecessarily prolonged.”

88 Id at 8.

89 Ibid.

90 De Beer NO v North Central Local Council and South Central Local Council and Others (Umhlatuzana Civic Association intervening) 2001 (2) SA 429 (CC), para 31.

91 See for example Government of the Republic of South Africa and Others v Grootboom and Others 2001 (1) SA 46 (CC), para 37.

92 Rules Regulating the Conduct of the Proceedings of the Supreme Court of Appeal of South Africa, rule 16(1).

93 Id, rule 16(4).

94 Id, rule 16A(1)(c).

95 Id, rule 16A(2).

96 [2012] ZACC 25.

97 Id, para 26.

98 Id, para 31.

99 Id, para 33.

100 Mubangizi and Mbazira “Constructing the amicus curiae procedure”, above at note 2 at 204.

101 Ibid.

102 Sachs, A “The judicial enforcement of socio-economic rights: The Grootboom case” in Jones, P and Stokke, KDemocratising Development: The Politics of Socio-Economic Rights in South Africa (2005, Brill Academic Publishers) 119Google Scholar at 131.

103 (CCT 69/12) [2012] ZACC 25 (9 October 2012), para 15.

104 2010 (3) BCLR 239 (CC); 2010 (4) SA 1 (CC).

105 2002 (5) SA 713 (CC).

106 2006 (2) BCLR 253 (CC); 2006 (2) SA 289 (CC).

107 Act no 116 of 1998.

108 2001 (4) SA 938 (CC); 2001 (10) BCLR 995 (CC).

109 1995 (3) SA 391 (CC).

110 2008 (9) BCLR 914 (CC).

111 See YM Badwaza “Public interest litigation as practiced by South African NGOs: Any Lessons for Ethiopia?” (unpublished LLM thesis, University of Western Cape, 2005) at 36.

112 Cap 01:01, Laws of Botswana 1966.

113 Cap 04:04, SI No 13 of 2011, as amended.

114 Cap 04:02, SI No 1 of 2011, as amended.

115 Cap 04:01, SI No 53 of 1975, as amended.

116 See Jonas “Human rights enforcement”, above at note 42 at 411.

117 Kgosikgolo Kgafela II Kgafela and Another v Attorney General and Others, case no CLCGB-027-12 (unreported) at 53.

118 Ibid.

119 [2006] 1 BLR 22 at 23. As regards other cases where courts adopted similar approaches, see, among others, Sete v Director of Public Prosecutions 2010 (3) BLR 234 where Motswagole J requested the late Phazha Kgalemang, a senior attorney, to illuminate the court on the scope, import and application of sec 150(1) of the Criminal and Evidence Act, cap 08:02, which requires the magistrate to refer a matter to the High Court if “in the course of trial or preparatory examination” the magistrate forms the opinion that the accused person “may be of unsound mind and consequently incapable of making his defence”. See also the case of Keakae v The State; Zhola v The State 2006 (2) BLR 406 where Chinhengo J also requested Phazha Kgalemang to appear before him at the hearing of the case to argue a question relating to the appropriate interpretation to be annexed to sec 133(1) and (2) of the Criminal and Evidence Act dealing with bail implications of an accused person who has been committed to trial and where the prosecutor has decided to try him before the High Court. See also Director of Public Prosecutions v Mahupela 2006 (1) BLR 236 where the Court of Appeal requested Mr Sifelani Thapelo “to present the contrary view” in the case. Before this case, the law under the Road Traffic Act (cap 69:01) was that a motorist could not commit an offence of driving under the influence of alcohol if his driving ability was not impaired although he had consumed alcohol beyond the prescribed limit. Following the Court of Appeal decision in this case, the Road Traffic Act was amended to criminalize drunken driving although the person's ability to drive was not impaired.

120 In this connection, see July v The State 2006 (1) BLR 496 where Mosojane J requested the attorney, Mr Tlage, to represent a defendant accused of armed robbery. See also the case of Tlhwabiwa and Another v The State 2003(2) BLR 39, dealing with the constitutionality of minimum mandatory sentences contained in sec 3(5) of the Stock Theft Act (cap 09:01).

121 For instance, see the case of the Petition of Ahulu 2010 (1) BLR 440 in which Walia J requested the Attorney General to delegate a member of its chamber at the hearing. The learned judge sought argument on the reciprocity clause of Ghana's Legal Profession Act No 32 of 1960, as amended. Judge Walia adopted the same course in the Petition of Gijima (2010) when he requested the Attorney General or her delegate to appear at court on the hearing for admission of the attorney, Gijima. See also Secretary, Law Society and Others v Sibanda (2005) (2) BLR 291.

122 Cap 61:01, Laws of Botswana.

123 See Ex parte Garekwe 2004 (2) 396. See also Mutemachimwe v The Law Society of Botswana (2001) (2) BLR 712; Bayford v The Law Society of Botswana 2001 (1) BLR 350.

124 Bayford, id at 352.

125 See Botswana Railway's Organisation v Setsogo and Others (1996) BLR 763 at 807, where the constitutionality of the Industrial Court of Botswana was challenged.

126 See note 5 above.

127 2005 (2) BLR 333 CA.

128 Above at note 15.

129 See Kgafela, above at note 117 at 53.

130 This is a Setswana word for paramount chief.

131 See Kgafela, above at note 117 at 53.

132 Mubangizi and Mbazira “Constructing the amicus curiae procedure”, above at note 2 at 214.

133 Ibid.

134 Ibid.

135 Ibid.

136 Ibid.

137 [2006] 2 BLR 633.

138 See the judgment of Dow J, id, para 26.

139 S v Zemburuka 2003 (2) NR 112, para 117.

140 du Plessis et al Constitutional Litigation, above at note 85 at 52.

141 Mubangizi and Mbazira “Constructing the amicus curiae procedure”, above at note 2 at 215.

142 Mahomed, I “Welcoming address at the first orientation course for new judges” (1998) 115 South African Law Journal 1Google Scholar at 1.

143 Y Mokgoro “Judicial appointments” (December 2010) The Advocate at 46.

144 Mubangizi and Mbazira “Constructing the amicus curiae procedure”, above at note 2 at 216.