1/13/2023 0 Comments Gijima hig court zaccSee 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. 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”. Time limits are usually laid down to ensure that the hearing of the matter is not unnecessarily prolonged.” Google Scholarġ19 1 BLR 22 at 23. 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. ![]() The test is therefore whether it is ‘just and expedient’ to permit the amicus curiae to present oral argument. 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 learned author argues that “the power to permit the amicus to offer oral argument would appear to be derived from rule 32(2). (eds) Constitutional Law of South Africa ( 2d ed, 2006, Juta and Co) 1 at 8–10. This article argues that, to enhance amicus participation in litigation, thereby enhancing the epistemological quality of its public law jurisprudence, Botswana must pay close attention to the practices and experiences of South Africa where amicus participation has resulted in the phenomenal growth of constitutional jurisprudence.Ĩ7 See Budlender, G “ Amicus curiae” in Woolman et al. This is largely due to inflexible rules of standing and the general lack of knowledge of the potential usefulness of the institution by the judiciary. In Botswana, amicus curiae participation is still at a nascent stage. They have done this through the submission of briefs that seek to broaden perspectives of cases and by advancing innovative legal and factual viewpoints, thus assisting the courts in reaching appropriate conclusions. Their appearance has thus contributed to the promotion and protection of human rights before municipal courts and international tribunals. It has become a standard feature of litigation for amici to appear before courts, acting as the vindicator of rights for the politically powerless and marginalized.
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