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

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 the advent of the Constitution of the Republic of South Africa in 1996. The Constitutional Court and the Supreme Court of Appeal acknowledged the value 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.