Tutorial M3 Precedent

SCHOOL OF LAW
LAWS 1014: INTRODUCTION TO LAW
TUTORIAL 3: PRECEDENT
3.1 Write a short summary of the stare decisis doctrine.
Stare decisis also known as Doctrine of judicial precedent, means ‘to stand by
previous decisions.’ According to this doctrine, previous judgments
create (binding) precedents which must be followed. This doctrine comes
from English law. The underlying principle of the doctrine is that the law which
was applied to a specific factual situation should be applied to all similar
situations.
in practice, the law must be applied to similar factual situations as the

previous decision - FACTS MATERIALLY THE SAME to those of an existing
precedent. Also referred to as ANALOGOUS FACTS. If the facts are not
materially the same then the cases have - DISTINGUISHABLE FACTS –
precedent does not apply (but previous case can still have persuasive value).
3.2 Can you think of circumstances where a lower court will not have to follow an
existing precedent set by the High Court?
Yes when the high court violates one’s humans right, when the high court
is not in district of the lower court. The lower court is bond is by its
provincial high court. For example if a judgement is made based on a
ruling in KZN and the case is heard in Gauteng, by following the
precedent in KZN high court a wrong has been made.
3.4 Do you think it is possible for a judge to come to an incorrect conclusion in a

case?
Yes
3.4.1 What happens if this occurs?
The “losing” party can appeal the judgement. The judgement can still stand, even
when it is disagreed upon.
3.4.2 If the incorrect decision stands, are other courts bound by it?
Yes, it can only change if the constitutional court made another ruling that is
different.
3.5 Explain in your own words the difference in meaning between:
a) Appeal
An appeal is lodged when the court has allegedly erred in its decision. On appeal,
the court does not listen to oral evidence about the facts of the case. The court
only studies the typed record of the court of first instance, in which all the
evidence is documented, and listens to argument by the legal representatives.
When an appeal is upheld, the decision of the court of first instance is set aside.
However, when the appeal is dismissed, the decision of the court of first instance
remains in force. Appeals are made to courts higher in the hierarchy than the court
of first instance. For example, a decision by the Supreme Court of Appeal could be
appealed to the Constitutional Court. Appeals are a statutory right ,
applied for at a higher court
b) Review
Review takes place in the case of a possible irregularity in the proceedings. For
example, if the judge was biased or did not afford one party a fair opportunity
to present their case, then a review would be the appropriate remedy. Certain
criminal cases heard by Magistrate’s Court, in which heavy sentences were
imposed, are automatically reviewed by the High Court. In other cases, an
application must be brought to the High Court for review. The High Court can also
review decisions of quasi-judicial tribunals. Applied for in the same court not a
higher court, courts can choose the cases that they want to review
3.6 Discuss the advantages and disadvantages of the doctrine of precedent.
Disadvantage:
 A precedent may have been decided incorrectly and thus does not portray the
best legal position. However, because of the doctrine, it must be followed.
 Seeing that courts are bound by their previous decisions; it becomes difficult
to depart from them. Therefore, courts cannot strongly influence legal reform.
It takes a long time for the courts to change the law and to adapt it to new
circumstances and needs. In this regard legislation is a much more effective
source of law.
 It creates inflexibility of the law, as the lower courts are sometimes bond by
judgement that were made in past (10-20 years), as there are no new
judgements setting aside the old one.
 Courts cannot change the law, as the constitutional court case does not allow
for it.
Advantages:
 Legal uniformity: The fact that all courts are bound by the judgments of
the highest courts ensures to a great extent that law is applied uniformly
(in the same manner) throughout the country.
 This principle gives effect to the right to equality guaranteed in section
9(1) the 1996 Constitution which says: ‘Everyone is equal before the law
and has the right to equal protection and benefit of the law.’ In the
absence of an applicable judgment by the Supreme Court of Appeal or
Constitutional Court on a specific issue, the law could differ from province to
province. This is because, as we have mentioned above, there is some
uncertainty about whether the High Courts of the different provinces are
bound by each other’s judgments after the 17th Constitutional Amendment.
 Legal certainty: The doctrine of precedent ensures that a court will be
fairly consistent in its decisions in similar cases. Corresponding cases
are to be treated equally. The law, therefore, becomes predictable and people
can plan their lives and business activities accordingly.
 Reduces the need for litigation. Basically reduces the number of cases that
are taken to court

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SCHOOL OF LAW

LAWS 1014: INTRODUCTION TO LAW

3.1 Write a short summary of the stare decisis doctrine.

in practice, the law must be applied to similar factual situations as the

3.4 Do you think it is possible for a judge to come to an incorrect conclusion in a

3.4.1 What happens if this occurs?

3.5 Explain in your own words the difference in meaning between:

3.6 Discuss the advantages and disadvantages of the doctrine of precedent.

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