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Why the decisions of our courts establish
our law

Eldon Ward
May 2018

“A friend of mine is studying law and he once mentioned that our courts must
always look at previous court decisions when considering a matter and in this
way our courts also create law. I find that quite strange as I always thought we
had existing laws that our courts must only apply. Can our courts really also
create law?”

Firstly, your friend is right. Our courts do create law, but not necessarily in the
way that you understand our Government to do so through the passing of
legislation. Our courts rather do so through the interpretation of our legislation
and applying and developing our common law rules.
Our courts are governed by a principle known by its Latin term “stare decisis”
which essentially means “to stand by a prior decision.” For our courts, this
principle means that a court must follow or stand by a prior court decision of
higher authority, unless that decision is clearly wrong. Our courts must therefore
rely on the decisions taken by courts of a higher jurisdiction or of the same
jurisdiction to them in respect of similar facts or legal questions. For example,
a High Court must follow the prior decision of our Supreme Court of Appeal
or Constitutional Court or even of a High Court in the same jurisdiction as it in
matters with the same facts or questions of law. In this way, ‘new law’ is essentially
created by our courts as these prior decisions must be followed. Decisions can
be referenced and researched in recorded law reports containing our court
judgments, thereby contributing to an environment of legal certainty and
consistency, very necessary to a country which prides itself on the importance
of the rule of law.

This does not however mean that previous decisions are absolute and can
never be changed. The law is and must also be organic and change with the
times and this demands that previous decisions can and must be changed
from time to time, albeit not willy nilly. Litigation

For a previous decision to be overturned however, the previous decision must
be seen to cause injustice or be inefficient or difficult to implement. Likewise, if
there has been new legal development (such as new legislation) or a previous
decision appears to be unconstitutional, a previous decision can be overturned.
But, until a court is satisfied that the previous decision is wrong, the principle of
stare decisis holds that a court cannot overturn a previous decision. A lower
court can also not overturn the decision of a higher court, to again provide
consistency and avoid arbitrariness in our law.
The principle of stare decisis is therefore vital to our law and creates consistency

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