These are not the Decisions you are Looking For—The Courts’ Duty to Follow Binding Precedent

• Jurisdiction: South Africa
• Date: 01 June 2023
• Pages: 1-22
• Published date: 01 June 2023
• DOI: 10.25159/2522-6800/13164

Article

Southern African Public Law

https://doi.org/10.25159/2522-68 00/13164

https://unisapressjournals.co.za/index.php/SAPL

ISSN 2522-6800 (Online ), 2219-6412 (Print)

Volume 38 | Number 1 | 2023 | #13164 | 22 pages

© Unisa Press 2023

These are not the Decisions you are Looking

For—The Courts’ Duty to Follow Binding

Precedent

Arthur van Coller

https://orcid.org/0000-0003-3362-6707

University of Fort Hare

vancollerarthur@gmail.com

Abstract

The doctrine of judicial precedent directs courts to use past hierarchically

binding decisions as settled points for determining current disputes. The

inherent nature and application of the doctrine, as an intrinsic part of the

common law, continued after th e advent of the Cons titution of the

Republic of South Africa in 1996. The Constitutional Court and the

Supreme Court of Appeal acknowledged the val ue of the doctrine in the

South African constitutional democracy. At the same time, numerous

other scholars commented on the doctrine’s merits, benefits, and failures.

The endorsement of the doctrine as an established fundamental source of

law should imply that its application is understood and generally

accepted in practice. However, the virtues of the doctrine are not always

self-evident to a judicial officer constrained by a precedent perceived as

incorrect or inappropriate. This article deals with the apparent failure of

the High Court in specific judgments to follow binding precedent. The

article accordingly evaluates three recent judgments of the Constitutional

Court wherein that court expressed its concern with the lower courts’

perceived failure to follow precedents or explain why they are

distinguishable. The article also comments on the doctrine’s historical

application and current justifications.

Keywords: precedent; stare decisis; judicial reasoning; obiter dicta; ratio

decidendi

Van Coller

2

Introduction

Swift, in Gulliver’s Travels, commented on the institutions of English law by

stating:

[I]t is a maxim among these lawyers that whatever has been done before, may

legally be done again: and therefore, they take special care to record all the

decisions formerly made against common justice, and the general reason of

mankind. These, under the name of precedents, they produce as authorities to

justify the most iniquitous opinions; and the judges never fail of directing

accordingly.1

Swift imagined that the meaning, function, application, and exceptions to the

doctrine of judicial precedent (the doctrine)2 are generally understood and

consistently applied by judicial officers. However, judicial officers and

academics have regularly commented on three challenges associated with the

doctrine. The first challenge relates to the arduous consequentialist responsibility

of judicial officers to commit to decisions with future implications.3 Second, the

virtues of those hierarchically binding decisions to operate as settled points for

determining current disputes are not always self-evident to a judicial officer

constrained by a precedent. The third issue concerns the application of the

doctrine, which has been interpreted in various ways. Some argue that the

doctrine requires ‘slavish adherence to precedents’,4 which leaves the courts

‘shackled to the past’ based on ‘a rigid and mechanical observance of the

decisions of the past’ without considering the impact of social, economic, and

political changes.5 Others have claimed it is beneficial to ‘cast the courts

completely adrift from the moorings provided by the wisdom and experience of

those who preceded us.’6 A more flexible application of the doctrine has been

proposed wherein the courts are ‘free to apply the decisions and their underlying

1 Jonathan Swift, Gulliver’s Travels (Benj. Motte 1726) pt IV ch 5.

2 See the Latin maxim stare decisis et non quieta movere—translated as ‘one stands by

decisions and does not disturb settled points’—Turnbull-Jackson v Hibiscus Coast

Municipality 2014 (11) BCLR 1310 (CC) (11 September 2014) fn 100. Hereafter ‘Turnbull-

Jackson’.

3 Frederick Schauer, ‘Precedent’ (1987) 39(3) Stanford LR 573; Neil MacCormick, ‘Why

Cases Have Rationes and What These Are’ in L Goldstein (ed), Precedent in Law (Clarendon

Press 1987) 155–182, 160–161.

4 John T John, ‘Loughran Some Reflections on the Role of Judicial Precedent’ (1953) 22(1)

Fordham LR1.

5 John (n 4) 1.

6 Schauer (n 3).