UZA DIRECTIONS HEARING 3
Unified Common Law
Grand Jury of
Southern Africa
In February 2016, the Applicant UZA requested
that the Applicant be able to change the cause of
action before the ITNJ. This request, which the
Applicant (or any Party) has the right to give,
presented many issues because prior to February,
the matter was ready to proceed to a trial. Given
that the ITNJ then had to clarify UZA’s position in
the matter, another directions hearing was held on
14 April 2016.
Chief Justice Sir John Walsh of Brannagh emphasised that no Party may frivolously change the
substance of a matter before the ITNJ once it has
begun. He further highlighted that if a Party would
like any changes to be made to a matter, that Party
must first seek leave from the Tribunal to ensure
that the proposed changes are appropriate and
do not hinder the process or infringe on another
Party’s rights. Following this, His Honour asked the
Administrator of UZA, Brother Thomas, why and
how UZA would like to change the cause of action
of the matter. In response, Brother Thomas suggested that the Constitutional Court is not a “community court”, which he believes is prescribed in
the Constitution of the Republic of South Africa.
He further explained that community courts are
neighborhood-focused problem-solving courts
that apply problem-solving approaches such as
restorative justice principles to local concerns,
and that as the Constitutional Court has failed
to do this, it has been acting unconstitutionally.
Julie-Anne Pho
ITNJ Court Officer
The Applicant wanted to pursue this moving
forward, and although UZA believed that it deviated from the cause of action currently on foot, His
Honour clarified that this was not so. The allegation
that the Constitutional Court is not a “community
court” merely supports the broader allegation that
the Constitutional Court is acting outside its legal
mandate as established by the Constitution.
Evidence for the trial was also discussed at the
directions hearing. Brother Thomas required guidance as to how many witnesses UZA should call,
and what kind of evidence would be required to
argue the Applicant’s case. His Honour made clear
that the ITNJ must remain neutral and as such,
cannot help Parties in an open matter with their
respective cases. Notwithstanding, examples of
convincing evidence were given to aid UZA. Such
examples included studies conducted by experts
in the field, articles published in law magazines by
respected authorities, and expert opinion evidence.
These examples were contrasted from those not
deemed probative, including blog posts and lay
opinion evidence. His Honour clarified that anybody
may give factual evidence, for example, detailing his
or her personal experiences with the Constitutional
Court, but opinion evidence cannot be given unless
given by an expert. It was explained to Brother
Thomas that it is up to UZA to decide how it will
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