The Judges and judicial choice: some thoughts on the appellate division of the supreme court of South Africa since 1950

Abstract

To study judicial choice implies that it is significant, so perhaps I should begin by explaining why I think that it is important. There are two reasons. First, the analysis of judicial choice enables one to chart in as precise a manner as possible the changes in judicial attitudes over time. And, secondly, the study of judicial choice enables one to identify those areas of law in which the judges rather than the legislature must bear part of the responsibility for baleful developments in the law. What I have said so far reveals my rejection of those jurisprudential theories which would deny, in either theory or practice, the reality or significance of the judges' individual role. One theory that I have particularly in mind is the vulgar austinianism that is the orthodoxy of the South African judiciary. 1 This view of law denies that the interpretations of statutes is ever more than a mechanical task; all that the judges do is to search for the intention of the legislature. The reproach for unjust or repressive laws should be directed, so these theorists hold, at the legislature rather than the judges who have done no more than search for and apply the will of the legislature. Instead of following an such jurisprudential approach, I intend to analyse the law closely in a number of crucial cases and reveal the points at which the judges for one reason or another chose to decide a particular case in the way that they did. 2 Judicial choice should not, however, be over-estimated. There are cases in which the judges have very little choice and must apply the clear words of an applicable statute even if