The facts about the amicus curiae application in the Zuma trial

On 25 March, three South African organisations representing the rights of women, particularly those affected by gender based violence, applied to the High Court to urgently intervene in the criminal trial of the State v Jacob Zuma. The three organisations, the Centre for the Study of Violence and Reconciliation, the Centre for Applied Legal Studies and Tshwaranang Legal Advocacy Centre, applied to be admitted as amici curiae, or friends of the court. 

 

The amicus curiae is no stranger to South African courts and it traditionally fulfils a number of important functions. An amicus may be asked by the court to assist a person who has no legal representation, usually because they cannot afford it, on complex legal issues. Amici also provide assistance to the court on important issues that the court needs to decide during legal proceedings. Finally, amici also intervene in cases when they have an interest in the case that is not addressed by any of the other parties to the case. 

 

It was on the basis of the second type of amicus application that the three organisations sought to intervene in the Zuma trial. The three organisations believed that on the basis of their expertise, they could assist the court to better contextualise the evidence that was before it. This particular type of amicus has been a time honoured part of public interest and human rights litigation and has been used effectively by many civil society organisations to educate courts about important issues such as HIV/AIDS, reproductive rights and freedom of expression.

 

The Zuma case has raised and will no doubt continue to raise, many difficult issues, and this application was no exception. In preparing for it, the amici were confronted by the competing rights of the accused to a fair trial and to know in advance what case he must prepare for, and the wider public interest in advancing and protecting the rights of women. Although the amici did not represent the complainant or seek to present her views to the court, its intervention raised ethical issues concerning the delay that would be created by the application and potential intervention, and the possibility that the complainant might be recalled to the witness stand and exposed to further cross-examination. The attitude of the prosecution was also a concern, especially that the prosecution may view the application as a “vote of no confidence”, rather than as a legitimate attempt to assist the court.

 

Weighing up all these considerations, the amici decided that it must be better to enter the fray, rather than remain on the sidelines. It had little doubt that important legal arguments needed to be made to place the evidence that had been led in the proper context, namely the lived reality of women’s lives. There was a need to ensure that all appropriate evidence concerning rape and its many and varied consequences on the lives of women were put before the court. The intervention would have offered the court an opportunity to look at the version of events and rape law through a different lens, from the perspective of women who have been raped and whose voices have been historically marginalised in the law.

 

The court rejected the application on two main grounds. The first was that expert evidence would have resulted in the proceedings being delayed, causing distress to the complainant. There is no doubt that this was, and should have been, an important consideration for the court. The second reason advanced by the court was that the amici would essentially not bring anything of value to the case as he was of the view that much of the evidence was already before the court.  Although the amici did not agree with the judge in this respect, it is significant to note that he did not dispute the importance of the evidence that the amici wanted to lead.

 

Although the application was ultimately unsuccessful, it did achieve several important things: the first was that despite vehement argument from the prosecution that the application amounted to a gross interference with the prosecutorial process, the judge explicitly acknowledged the applicants’ right to bring the application. This is an important point that has largely been missed in all the publicity surrounding the case and is significant since it leaves the door open for similar interventions in future cases.

 

The second benefit of the application is that the very issues that the amici wanted to put before the court are now firmly in the public domain and will hopefully continue to influence and contribute to the public debate about the case and the broader issues around gender based violence. In particular, it is hoped that application, despite its failure, will send a clear message of support and encouragement to other rape survivors.