IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG

CASE NO: 2020/32777
Reportable: No
Of interest to other Judges: No
Revised: No
25/11/2022

In the application for admission as amicus curiae of:

HUMAN RIGHTS WATCH	Applicant for admission as amicus curiae

and

In the application for admission as amicus curiae of:

THE UNITED NATIONS SPECIAL RAPPORTEUR	Third Applicant for admission
ON TOXICS AND HUMAN RIGHTS	as amicus curiae

THE UNITED NATIONS SPECIAL RAPPORTEUR	Fourth Applicant for admission
ON EXTREME POVERTY AND HUMAN RIGHTS	 as amicus curiae

THE UNITED NATIONS SPECIAL RAPPORTEUR	Fifth Applicant for admission
ON THE RIGHTS OF PERSONS WITH 	 as amicus curiae
DISABILITIES

THE UNITIED NATIONS WORKING GROUP	Sixth Applicant for admission
ON BUSINESS AND HUMAN RIGHTS	as amicus curiae

THE UNITIED NATIONS WORKING GROUP	Seventh Applicant for admission
ON DISCRIMINATION AGAINST WOMEN	as amicus curiae
AND GIRLS

In re the matter between:

VARIOUS PARTIES ON BEHALF OF MINORS	First to twelfth Applicants
Thirteenth applicant

and

ANGLO AMERICAN SOUTH AFRICA LIMITED	Respondent

with

AMNESTY INTERNATIONAL	First amicus curiae 

THE SOUTHERN AFRICAN LITIGATION CENTRE	 Second amicus curiae

J U D G M E N T

MAIER-FRAWLEY J:

1.	This matter concerns two separate applications for the admission of amici curiae in an application for certification of a class action that is pending in this court. The respective applicants are:

1.1.	Three UN Special Rapporteurs and two UN working groups (‘the UN bodies’) and 

1.2.	Human Rights Watch (‘HRW’).

2.	The present applications are opposed by the respondent, Anglo American South Africa Limited (‘Anglo’).

3.	Adv K. Hofmeyer SC (assisted by two junior counsel) appeared for the UN bodies at the hearing of the matter. Adv K. Hardy (assisted by junior counsel) appeared for HRW, whilst Adv S. Budlender SC (assisted by two junior counsel) appeared for Anglo. 

4.	On 11 August 2022, an order by consent between the parties was granted in this court in terms of which two other institutions were admitted as amici curiae in the pending certification application, being Amnesty International (First amicus curiae applicant) and The Southern Africa Litigation Centre (second amicus curiae applicant).

5.	Heads of argument exceeding 700 pages have already been filed by the certification applicants, the respondent and the admitted amici curiae in the pending certification application, which has been set down for hearing before Windell J for a period of eight days from 20 to 31 January 2023. The current pleadings (including annexures) run in excess of 10,000 pages.

6.	In terms of a directive issued by the Deputy Judge President of this court, the present amici curiae applicants, if admitted, are to file their heads of argument by 24 November 2022. The matter was argued as a special motion before me on Thursday the 10th November 2022, on which day I informed counsel that I would be commencing duties in the urgent court on Friday the 11th November 2022 until 18th November 2022 and that I would in all probability lack the time or have the capacity to pen this judgment during that period. Cognizant of the looming date for the filing of the heads, I do not intend to deal exhaustively in the judgment with all the extensive submissions of the parties, however, I will refer to salient aspects which I consider to be relevant and cogent in arriving at the decision in this matter. 

7.	By way of brief background, the applicants in the certification proceedings seek certification of a class action against Anglo. The purpose of the class action is to claim damages from Anglo on behalf of two proposed classes who reside in the Kabwe district, Zambia, and who have suffered injury as a result of exposure to lead. The applicants’ cause of action is grounded in the Zambian law of tort. The applicants allege that Anglo, through its mining activities conducted at a mine in Kabwe during the period 1925 to 1974, both caused and materially contributed to the ongoing harm suffered by children and women of child-bearing age in Kabwe as a result of their exposure to lead pollution deposited in the vicinity of the mine and its surrounds. Anglo avers that it did not cause the present state of uncontrolled and polluted conditions in Kabwe and that it is not liable for any harm caused to the applicants by the current state, nor is it liable to remedy it. It alleges, amongst others, that Zambian Consolidated Copper Mines Limited (’ZMCC’) caused the failed state of the mine and concomitant environmental contamination in Kabwe and that ZMCC remains liable today for the rehabilitation and remediation of lead emissions in Kabwe. 

8.	The parties are in agreement as to the legal principles governing the admission of an applicant as amicus curiae. Such an applicant must, in terms of Rule 16 A of the Uniform Rules, satisfy the court that its submissions are (i) new, i.e., different from the existing submissions before the court; (ii) that they are relevant; and (iii) that they will be helpful to the court. 

9.	Useful guidelines as to the approach to be adopted in adjudicating applications for admission as amici are provided, amongst others, in cases such as SALC and Treatment Action Campaign, Children’s Institute, and Outa. 

10.	Anglo does not take issue with the fact that both the UN bodies and HRW have indeed motivated their legitimate interest in the certification proceedings. It opposed both applications in its papers and written argument on grounds that the submissions of the respective applicants are not new, and, in any event, are not helpful or relevant. However, during presentation of oral argument, Mr Budlender fairly and properly conceded that the UN bodies’ submissions, as expounded upon during oral argument, are new in the sense that that they have not hitherto been raised or canvassed by any of the parties in the certification proceedings. Anglo however persisted in its opposition to the admission of the UN bodies as amici curiae on the basis that their submissions were neither relevant nor helpful.

11.	I turn now to address the respective applications brought by the UN bodies and HRW in the light of the relevant legal principles alluded to above. 

Application by the UN bodies

12.	If admitted, the UN bodies intend to make submissions regarding the impact that Anglo’s own stated commitment to a particular set of international standards for corporate conduct - the Guiding Principles on Business and Human Rights - has for the court’s assessment of whether it is in the interests of justice for the class action to be certified. 

13.	The UN bodies submit that the Guiding Principles incorporate various international human rights principles, including the rights of victims of human rights violations to have access to justice and the right to a remedy.  They further submit that the Guiding Principles commit Anglo, amongst others, to respect the rule of law and to address adverse human rights impacts which it may have caused or contributed to through its business endeavours. They seek to present argument to the certification court as to the effect that Anglo’s election to assent to the Guiding Principles that commit Anglo to respect the rule of law and to promote the provision of remedies for adverse human rights impacts, is fundamentally incompatible with its election to resist certification of a class action that is designed to provide access to courts in order to pursue a remedy for the class members. 

14.	Thus, If admitted as amici curiae, the UN bodies will argue that the conflicted position in which Anglo has put itself in, should weigh in the court’s analysis of where the interests of justice lie. This is an important and relevant consideration, so say the UN bodies, because, whilst Anglo does not dispute that in the absence of certification of a class action, which is to be pursued in South Africa, prospective class members will be denied any access to justice at all, because (i) they cannot pursue their claims in Zambia in any meaningful way and (ii) in the absence of a class action procedure, individual claimants will be unable to pursue their claims in South Africa, it nonetheless elected to oppose certification, knowing and accepting that if it succeeds in its opposition, the result will be that prospective class members will have no prospect of advancing their case for a remedy before a court of law.

15.	During oral argument presented on behalf of the UN bodies at the hearing of this application, reliance was place on the case of Njongi. The UN bodies seek to argue that the principle to be extracted from that case, which the Constitutional Court recognised, is that in certain circumstances, litigants attract heightened obligations or responsibilities when litigating because of the position they hold and the obligations they are duty bound to fulfil, more specifically, in certain situations there will be a particular election that a party has to make about how it approaches the litigation that it faces. In Njongi, the court stated that the provincial government, as state respondent, was obligated to respect, protect, promote and fulfil the rights and values of the Constitution. 

16.	In essence, in Njongi, the Constitutional Court recognised that state respondents (or defendants), because of certain constitutional duties that attach to them, have a heightened obligation to think carefully, exercise a moral choice when deciding to make one or another election in the course of litigation in which they are involved. In Njongi, the election was whether or not to pursue a defence of prescription. The court found that the respondent was under not only a moral duty but a legal duty to make an election to plead prescription, which it had failed to do, instead seeking to raise the issue belatedly (and irregularly) by way of a notice. The UN bodies seek to persuade the certification court that the Njongi principle should be extended to the private sphere and applied, by analogy, to the facts of this matter, in circumstances where Anglo elected to oppose the certification of the class action - aimed at addressing human rights impacts - ostensibly in an effort to cut the litigation off before it begins, in juxtaposition to its publically professed commitment to respect and protect human rights, to be accountable for and to redress adverse impacts in which it may be found to have been involved. 

17.	The UN bodies’ argument, as I understand it, entails consideration of a narrow point by the certifying court. At the risk of being repetitive, the argument boils down to this: private parties such as Anglo can also attract heightened duties in litigation. They do so when they elect to commit themselves to certain values and principles, which require certain conduct from them when they become defendants in litigation designed to vindicate those very principles. Anglo’s election to commit itself to the Guiding Principles includes a commitment to support access to justice where human rights impacts have occurred. It also includes the commitment to co-operate in processes designed to establish whether there is culpability for those human rights impacts. Having elected to commit itself to these principles, Anglo must then bear a heightened duty when it considers whether to oppose certification. Its decision to oppose certification put it in an intractably conflicted position and this is a factor that should weigh in the interests of justice debate which the certification court will undertake. Stated differently, Anglo’s approach in opposing certification, which is incompatible with its professed commitment to the Guiding Principles and is tantamount to unconscionable conduct, is therefore a relevant consideration which the certification court ought to take into account when it considers the interests of justice test for certification. 

18.	On behalf of Anglo, Mr Budlender submits that the submissions that the UN bodies intend to make, whilst new, will not be helpful to the certification court and are not relevant to the questions the certification court will be tasked to decide. In this regard, he stressed that the debate about whether Anglo has misconducted itself in the certification proceedings (or, for that matter, in its conduct at the Kabwe mine) or whether it breached certain heightened obligations it may have attracted by committing to the Guidelines, is not relevant to certification because certification does not depend on the stance that Anglo adopts. Certification, so it was submitted, is not about the interests of the respondent but concerns the interests of justice. The certification applicants accept that they require certification from a court before they can proceed with a class action, and even had Anglo filed a notice to abide, the certification court would still have to satisfy itself that certification is consistent with the interests of justice. The 7 requirements set out in Children’s Resource Centre that the certification court will have to consider, do not concern the conduct of a respondent and will remain unaffected by a debate about whether Anglo has acted in an inappropriate matter by opposing certification. 

19.	It was further submitted that the remarks in par 85 of Njongi were made in relation to the court’s consideration of the issue of costs and not in relation to the merits of the appeal, and Njongi is therefore not authority for the proposition that where the respondent behaves unconscionably by exercising a moral choice in taking a decision to oppose certification, that is somehow something to weigh in the balance on the merits.

20.	It is correct that Anglo has opposed the certification application, as was its right to do, however, Ms Hofmeyer’s argument appears to me to be more nuanced. Anglo made two elections: one, to commit itself to the Guiding Principles, amongst others, to promote access to justice in respect of human rights impacts and two, to oppose certification, which, if successful, would deny victims of human rights infringements access to justice. It concerns Anglo’s election to oppose in circumstances where it had committed itself to certain values and principles but then acted in opposition thereto when exercising an election to oppose certification. It is this type of inconsistent conduct on the part of Anglo which the UN bodies submit should be taken into account as an additional factor that weighs in favour of certification in the interests of justice debate to be had before the certification court. If the argument is found to be persuasive and the additional factor considered weighty enough by the certification court, it may add to counter balance other factors suggested by Anglo in its papers that weigh against certification. To sum up: What the UN bodies seek to do before the certification court is to distil the legal significance of Anglo’s commitments to the Guiding Principles as a factor to be weighed in the balance when determining where the interests of justice lie. They seek to persuade the certification court to extend the Njongi principle so that it can apply to private parties (such as Anglo) in this litigation, based on the heightened duty that the UN bodies submit Anglo attracted in committing to the guiding principles and which the UN bodies consequently submit, enjoined Anglo not to oppose certification.

21.	Seen from this perspective, the requirement, namely, that an amicus’s submissions must be new and that ‘new contentions are those that may materially affect the outcome of the case’ has in my view been met by the UN bodies because it is an argument which, if found to be persuasive, may tilt the scale in favour of certification. 

22.	Whether or not the UN bodies’ argument in respect of the Njongi principle is correct or not is for the certification court to determine. I agree with Ms Hofmeyer that Anglo’s contentions about the import of the Njongi principle and its application to the facts of this matter is really an argument about the correctness thereof, dressed up as one concerning relevancy.

23.	As observed by the Constitutional court in Koyabe, ‘insofar as amici introduce additional, new and relevant perspectives, leading to more nuanced judicial decisions, their participation in litigation is to be welcomed and encouraged.’ 

24.	Although the list of criteria provided by the Supreme Court of Appeal in Children’s Resource Centre case does not necessarily focus on the interests of a respondent or a respondent’s conduct, it is not a closed list of factors that the certification court is bound to take into account. Unterhalter J conveniently summarised the legal position in De Bruyn as follows:

“ In Children’s Resources, the Supreme Court of Appeal set out the factors that should be weighed in deciding whether to certify a class action. These factors are as follows: the existence of a class identifiable by reference to objective criteria; the proposed class representative is suitable to conduct the action and represent the class; a cause of action raising a triable issue; the right to relief requires the determination of issues of fact or law, or both, common to all members of the class; the relief sought or damages claimed flow from the cause of action and are ascertainable and capable of determination; where damages are claimed, there is a procedure by which to allocate the damages to members of the class given the composition of the class and the nature of the proposed action; and that a class action is the most appropriate means by which the claims of the class may be determined.

Children’s Resources recognized that these factors may not be exhaustive, but required that a court should be satisfied that the factors are present before granting certification. In Mukaddam, the Constitutional Court clarified the position. The factors referenced by the Supreme Court of Appeal are not prerequisites for the grant of certification. Rather, they are considerations to be weighed under the overarching principle of what is required by the interests of justice.” (footnotes omitted) (emphasis added).

25.	Whilst the UN bodies’ submissions may support the contentions of the applicants in the certification proceedings, in my view they contribute a different perspective on the applicants’ argument. That is because, in Ms Hofmeyer’s words, the submissions of the UN bodies ‘seek to take the law where the law has not yet gone’ concerning Anglo’s elections and its conflicted position. The UN bodies seek ultimately to explain why Anglo’s election to abide human rights principles has a necessary implication for the stance it took in the certification application. If the argument is accepted and Anglo’s stance is taken into account as an additional factor to weigh in the balance of what the interests of justice require, it is axiomatic that the argument will assist the certification court in its reasoning when deciding whether or not to allow certification. It is thus relevant to the interests of justice debate.

26.	For these reasons, I am inclined to exercise my discretion in favour of granting the UN bodies leave to be admitted as the third to seventh amici curiae for purposes of presenting oral and written argument in the certification proceedings.

27.	The UN bodies also seek leave to place before the certification court more evidence about Anglo’s commitment to the guiding principles as well as its public invocation of them. They also seek leave to adduce evidence of Anglo’s own internal documents evincing its commitment to those principles. I am not inclined to grant this request. I do not think that it will be in the interests of justice to do so. As pointed out on behalf of Anglo, the record of the certification proceedings is already unduly burdened by evidence presented on this very topic by the admitted amici as well as the applicants. That Anglo committed itself to the guiding principles both publically internally is common cause between the parties in the certification proceedings. No useful purpose would therefore be served by burdening the record with more evidence on a point that is not in dispute in the certification proceedings. 

Application by Human Rights Watch (‘HRW’)

28.	HRW seeks leave to be admitted as amicus curiae in order to advance essentially two submissions. First, it wishes to address the purpose and context of its report in order to correct what it contends is a misunderstanding or misreading by Anglo of its report and its submissions to the UN Committee on the Rights of the Child (‘the CRC’). The Human Rights Watch report was put up and relied on by the certification applicants in their founding papers in support of certification. In response, Anglo explained why the report supported its contentions. Second, it wishes to make submissions on Guiding Principle 11 and the due diligence obligations imposed on corporations by vitue thereof.

29.	As regards the first submission, HRW submits in its heads of argument that “…The Respondent uses the Human Rights Watch Report and the CRC submissions to substantiate its defence against the applicants’ claim. Human Rights Watch will address the relevant facts and law omitted by the respondent in its presentation of the Human Rights Watch report and the CRC submissions. ’ HRW further submits that ‘when the Human Rights Watch report and the CRC submissions are considered in their proper context and against their intended purpose, it is clear that they do not exculpate the respondent – or any other business enterprise – for any conduct that may have caused or contributed to ‘the failed state of the Mine and its surrounds’ ”

30.	In heads of argument filed on behalf of Anglo, reference is made to the issues in dispute between the certification applicants and the respondent in the certification proceedings, as evidenced in paragraphs 748.1 and 753.1 of the replying affidavit, where the certification applicants address Anglo’s reliance on the HRW report in its answering affidavit. I do not intend to repeat the content of the pleadings, as quoted in para 14.1 of Anglo’s heads. It is however clear from the pleadings that the very issue that HRW seeks to canvass is already in dispute between the parties. 

31.	Anglo submits that any debate about the meaning of the HRW report will not be helpful to the certification court. It is trite that the interpretation of the HRW report is a matter for the court. I agree with Anglo’s submission that the HRW report is before court, which the certification court can read for itself and hear legal submissions from the certification applicants and Anglo on its effect.

32.	HRW made two important concessions in this application. First, that it does not intend to place any evidence before the certification court in order to contextualise the circumstances under which its report was prepared or for purposes of elucidating the purpose of the report. This conveys to me that HRW accepts that both context and purpose are discernible from the report itself. It follows that if the relevant context and purpose of the report is discernible from the report itself, then HRW’s input thereon will not be needed. If it is not discernible from the report itself, then HRW’s submissions are in any event unlikely to be able to assist the court as HRW has not sought to adduce additional evidence on the subject. Whilst it is correct that the certification applicants have not made written submissions in relation to the context, purpose or meaning of the HRW report, indicating instead that they will await HRW’s submissions in this regard, it remains open for them to do so in oral argument, given that they have disputed that the report corroborates Anglo’s case. The fact remains that HRW is in no better position to argue the meaning or effect of the report than the certification applicants or Anglo would be. The court will read the report and form its own view as to what it says. 

33.	Mr Budlender submits that HRW really seeks to make submissions on the contents of its report in order to set the record straight, given that Anglo is accused of quoting selectively from the report and of misrepresenting what the report says. In NDPP v Zuma former President Mbeki sought leave to intervene as a party or to join the proceedings as an amicus in order to set the record straight in the appeal proceedings, as the High Court had made adverse findings against him, which he contended lacked an evidentiary basis. The Supreme Court of Appeal did not consider it apposite for the former President to join either as an intervening party (for reasons given in the judgment) or as an amicus, finding in regard to the latter, that the former President’s intervention as amicus was not required ‘since it did not add anything new.’ Mr Budlender submitted that HRW is in the same position in that, it, in effect, wants to ‘set the record straight’ regarding its report. But that does not give it a right to intervene as an amicus or make its submissions helpful to the court. I am inclined to agree. The certification court will not need to hear from HRW about the contents of its report as the report is before court, and the issue of whether or not Anglo misrepresented or misread its contents would be apparent to the court from the report itself. 

34.	HRW submits in its heads of argument that Guiding Principle 11 enjoins business enterprises to respect human rights by avoiding infringing on the human rights of others. It further enjoins businesses to address adverse human rights impacts with which they are involved. HRW submits that in order to meet the responsibility to respect human rights, business enterprises must, inter alia, exercise due diligence. Due diligence in international human rights law refers, so it submits, to the processes and activities by which businesses identify, prevent, mitigate and account for how they address their adverse human rights impacts. HRW further submits that the due diligence standard is relevant to the standard of care owed by a corporation such as Anglo. The standard imposes on business enterprises a duty of care, which includes, inter alia, the avoidance of complicity in, and profiting from, human rights violations and the responsibility to ameliorate human rights violations which may already exist when the enterprise begins its operations. Ultimately, the core submission by HRW is that ‘due diligence provides a useful framework to assist in the evaluation of the respondent’s duty of care… The international law principles also inform the nature and content of the applicable standard of care, and whether the respondent has met the relevant duty. This will assist this court in its determination of whether the class action raises triable issues.’

35.	HRW accepts that the certification applicants’ proposed claim is to be determined in accordance with the Zambian law of tort. In other words, the nature and content of the duty of care is a matter of Zambian law, to be found in Zambian sources of law. Zambian tort law has its own test for the duty of care. This brings me to the second important concession made on behalf of HRW at the hearing of the matter, namely, that HRW does not submit that that test of duty of care in Zambian law is inadequate and needs to be expanded upon or adapted with reference to the Guiding Principles. It follows, as a necessary corollary, that one does not prove the test for duty of care in Zambian tort law by reference to the Guiding Principles, unless those are part of Zambian law, which HRW does not assert. 

36.	HRW has been unable to say how the Guiding Principles will help the court apropos its application of the duty of care test under Zambian law. Instead, HRW has resorted to making generalised statements without specifying why a breach of the requirements of due diligence international standards can or will impact the duty of care test under Zambian law and if so, how. I therefore agree with MR Budlender’s submission on behalf of Anglo that there is no suggestion by HRW that the principles of due diligence in international law add anything to the test for duty of care in Zambian tort law. If that is so, then HRW’s intervention is unnecessary. If the proposition is that they add something, HRW has not said what that is. As no explanation was provided by HRW in its papers or in its written or oral argument as to the effect of international law on Zambian law or the test for the duty of care under Zambian tort law, the result is that it is unclear how the certification court will be assisted by HRW’s intervention on this score. 

37.	It follows that the HRW application does not meet the requirements for admission as an amicus curiae and therefore falls to be dismissed.

Costs

38.	The UN bodies and HRW both seek costs in the event that their applications are successful. Anglo, on the other hand, does not seek costs in the event that its opposition is successful (and the applications are dismissed), in which event, it submits that no order as to costs be made.

39.	The application of the UN bodies has been substantially successful in that they are to be joined as the third to seventh amici curiae in the certification application for purposes of presenting written and oral argument without, however, adducing further factual evidence.

40.	On behalf of the UN bodies, reliance was placed on cases such as Jheebai and Dladla in support of the contention that costs may be awarded against a litigant whose opposition is considered to have been unreasonable. 

41.	Ms Hofmeyer submits that Anglo’s opposition to the application for admission as amici was unreasonable for two reasons. The first is that the premise of the opposition, namely, that the UN bodies have nothing new or useful to contribute to the certification court, was unfounded, a point aptly (albeit partly) illustrated by the abandonment of Anglo’s opposition, on grounds that the UN bodies’ submissions are not new, at the hearing of the matter. The second is that Anglo did not miss the opportunity in its answering affidavit (filed in these proceedings) to make a serious allegation of bias by the UN bodies against Anglo, which entirely lacked factual foundation. 

42.	As to the first, it remains unrefuted that the UN bodies’ argument is novel and if found to be persuasive, it will develop the law on existing heightened duties beyond where it currently is. The argument seeks to explain how the acquisition of a heightened duty, because of Anglo’s prior conduct, is a factor that should weigh in the interests of justice balance for purposes of certification. In my view, the contribution to be made by the UN bodies in this regard goes beyond the existing submissions in the certification proceedings, and will be of value to the court apropos the interests of justice enquiry, which renders it relevant. Although Anglo’s opposition to the UN bodies’ application was unsuccessful, that does not imply that it was therefore unreasonable. Njongi was not mentioned in the UN bodies’ heads of argument and argument based on the Njongi principle was only elucidated at the hearing of the matter. I do however accept that the argument premised upon Njongi was foreshadowed in the UN bodies’ papers, however, the fact remains that it became illuminated during oral argument. 

43.	As to the second, allegations of bias are by their nature serious. In Knoop, Wallis JA cautioned that:

“…It should not be necessary to remind legal professionals who draft affidavits for their clients that they bear a responsibility for the contents of those documents and may not use them for the purpose of abusing their client's opponents. Such allegations should only be made after due consideration of their relevance and whether there is a tenable factual basis for them…”

44.	In my view, no proper foundation was laid in the answering affidavit for maligning the integrity of five UN bodies. It was a gratuitous averment, which was irrelevant to whether or not the requirements for certification were met by the UN bodies in their application.

45.	In my view, fairness and justice dictates that Anglo should pay the costs of the application brought by the UN bodies. All parties involved in this matter employed the services of more than one counsel, which in my view, was warranted, given the seriousness of the matter to all parties concerned and the complexity of the issues involved. Costs payable by Anglo in respect of the UN bodies’ application should therefore include the costs of both senior and junior counsel. 

46.	Accordingly, the following order is granted:

ORDER

1.	The third to seventh applicants for admission as amici curiae are admitted as the third to seventh amici curiae.

2.	The third to seventh amici curiae are granted the right to file written submissions and present oral argument at the hearing of the certification application.

3.	The respondent is to pay the costs of the application brought by the third to seventh applicants, which will include the costs of one senior and two junior counsel.

4.	The application by Human Rights Watch for admission as amicus curiae is dismissed.

AVRILLE MAIER-FRAWLEY 
JUDGE OF THE HIGH COURT,
GAUTENG DIVISION, JOHANNESBURG

Date of hearing: 	10 November 2022

Judgment delivered	25 November 2022

This judgment was handed down electronically by circulation to the parties’ legal representatives by email, publication on Caselines and release to SAFLII. The date and time for hand-down is deemed to be have been at 10h00 on 25 November 2022.

APPEARANCES:

Counsel for 3rd to 7th applicants:	Adv K. Hofmeyer SC together with

(UN bodies)	Adv M Mbikiwa & Adv I. Cloete

Instructed by:	Legal Resources Centre

Counsel for Human Rights Watch:	Adv K Hardy together with Adv BC Meyersfeld

Instructed by:	Lawyers for Human Rights

Counsel for the respondent:	Adv S. Budlender SC together with
Adv L. Sisilana & Adv D. Smit

Instructed by:	Webber Wentzel Attorneys