Relevance and importance of the amicus curiae participation in Mayelane v Ngwenyama [Discussion of Mayelane v Ngwenyama 2013 4 SA 415 (CC)]

Abstract

Amici curiae have for many years assisted courts to reach decisions with the Constitutional Court being the first court to acknowledge this contribution by implementing specific rules to administer amici curiae participation. Recently the participating amici curiae in Mayelane v Ngwenyama were able to establish a unique role and identity for this form of participation in litigation by assisting the Constitutional Court to determine the content of living customary law. This contribution explores the amici curiae participation in the Mayelane matter and analyses the Constitutional Court’s reliance on the amici to inform it on the content of Tsonga custom to establish if a wife’s consent is a requirement in entering into a subsequent marriage. The analysis is called for to confirm the impact amici curiae participation has in assisting courts to reach decisions conscious of the impact it has on the community it serves.