CASE LAW - THE STARE DECISIS PRINCIPLE

CASE LAW

THE STARE DECISIS PRINCIPLE

Stes de Necker

Principle

Stare decisis (Anglo-Latin pronunciation: /ˈstɛəriː dᵻˈsaɪsᵻs/) is a legal principle by which judges are obligated to respect the precedent established by prior decisions.

The words originate from the phrasing of the principle in the Latin maxim Stare decisis et non quieta movere: "to stand by decisions and not disturb the undisturbed." 

In a legal context, this is understood to mean that courts should generally abide by precedent and not disturb settled matters.

The principle of stare decisis can be divided into two components.

The first is the rule that a decision made by a superior court, or by the same court in an earlier decision, is binding precedent that the court itself and all its inferior courts are obligated to follow.

The second is the principle that a court should not overturn its own precedent unless there is a strong reason to do so and should be guided by principles from lateral and inferior courts. 

Case law in common law systems

In the common law tradition, courts decide the law applicable to a case by interpreting statutes and applying precedent which record how and why prior cases have been decided.

Unlike most civil law systems, common law systems follow the doctrine of stare decisis, by which most courts are bound by their own previous decisions in similar cases, and all lower courts should make decisions consistent with previous decisions of higher courts.

For example, in England, the High Court and the Court of Appeal are each bound by their own previous decisions, but the Supreme Court of the United Kingdom is able to deviate from its earlier decisions, although in practice it rarely does so.

The legal system in South Africa is founded almost entirely upon a system of law known as the Roman Dutch law. In general this is referred to as the "common law" of South Africa.

Laws can be described in simple terms as rules of action. This may include all kinds of law, e.g. laws of mechanics, chemistry, science etc.

What we are concerned with here is National Law, being rules which regulate the conduct of persons on a large scale to ensure that peace and order is kept in the country.

There are several ways in which national law is made. These include, inter alia, legislation, judicial decisions, custom, legal treaties etc.

To understand the operation of the rule it is necessary to understand the ranking of the courts in South Africa.

The Appellate Division of the High Court is the highest court of appeal (except in constitutional matters, in which case the Constitutional Court is the highest authority) and is bound by its own previous decisions (R v Nxumalo 1939 AD 232).

If, however, it is convinced that such a decision was wrong due to some manifest oversight or mistake, it will not follow such a previous decision (Bloemfontein Town Council v Richter 1938 AD 232).

A decision by the Appellate Division is binding upon all subordinate courts in South Africa (see Collett V Priest 1931 AD 298).

A provincial division of the High Court is bound by its own decisions (R v Manasewitz 1933 AD 170), unless clearly a mistake was made (R v Philips Dairy (Pty) Ltd 1955 (4) SA 122 (T)).

Such decisions are also binding upon a local division of the High Court (Hughes v Savvas1931 WLD 237), and on a single judge in the same province (SA Farmers Representatives v Bonthuys 1930 CPD 135).

A single judge in a province is bound by a decision of a single judge in the same province unless he is completely satisfied that the former decision was incorrect (see Ex Parte Hansman 1938 WLD 90). A provincial division is not bound by the decision of another provincial division (Lobley v Lobley 1940 CPD 434) and a single judge in one province is not bound by the decision of a division in another province (Levitt v Schwartz 1938 CPD 47).

Local Divisions have concurrent jurisdiction with the provincial divisions within defined areas. All divisions of the High Court, except local divisions, have appellate and review jurisdiction in respect of inferior courts within their territorial areas. Such decisions therefore become law.

Inferior courts, such as Magistrate's Courts, have limited jurisdiction and are bound by decisions of any division of the High Court. A magistrate's court must therefore adhere to decisions made by the High Court for the province in which the particular magistrate's court is situated.

If no relevant decision exists as regards a specific circumstance, and a decision regarding such a circumstance was made by a High Court in another province, the magistrate will then follow that decision.

The rule stare decisis thus applies to the judicial decisions made by the courts and implies that the decision made by a court is binding upon the court which actually pronounced the judgement as well as on all courts subordinate to that court.

The deeds registries, similarly, are also bound by that rule.

If two provincial divisions of the High Court made conflicting decisions on the same issue, the inferior courts in each province must follow the decision made by its division of the High Court. If conflicting decisions exist, a deeds registry will have no choice but to follow the decision made by the division of the High Court that has jurisdiction in the area where the deeds registry is situated.

The situation regarding the application of Section 80 of the Administration of Estates Act, 66 of 1965 in the case where a minor inherits property and the heirs, including the minor, wish to enter into a redistribution agreement, is a case in point. The court ruled in the unreported case (now Gauteng case) Boedel wyle P M Venter (case no 6647/1984) that Section 80 of Act 66/1965 must find application in such an instance.

In the Cape however, the court ruled in the unreported case Ex parte Fuard Tofie (case no 11191/1989) that Section 80 will not find application.

The situation now exists that is a general practice in deeds registries, as confirmed by Conference, that Section 80 of Act 66/1965 must be enforced in cases such as set out above. With respect, it would appear that the Cape Town deeds registry cannot follow the Ventercase, and must as required by the stare decisis rule, follow the Tofie case. That is the law as far as the area of jurisdiction of the Cape Town deeds registry is concerned.

It is a fact that some Estate Examiners at the office of the Master of the High Court, Cape Town will in fact comply with a request for a Section 80 consent in a case where a minor is party to a redistribution agreement, while others refuse to do so on the basis of the Tofie case. This practice of refusing a Section 80 consent was confirmed by the Master to be the correct practice, which should be followed in both the office of the Master as well as in the deeds registry. Similarly, in Gauteng, the Venter case must be followed for exactly the same reasons.

Although it is a perfectly commendably goal to strive for uniform practice in the different deeds registries, this is not a case of uniform practice, but a matter of complying with the law as it applies to set circumstances in the deeds registry concerned. A practice in a deeds registry cannot supersede the decision of a court of law, or any other law (see Kriel v Terblanche NO en Andere 2002 (6) SA 132 at A on page 144 where the judge remarks: "Die geldende reg swig nie voor prosedure nie.").

This may be an area of the law where there may be a lack of sufficient training or understanding in the deeds registries setup.

Deeds registries are part and parcel of the Legal Administration in the RSA and should adhere to the law as it applies in their areas or jurisdiction, even if it appears to create different practices in the various offices.

Section 172(2)(a) of the Constitution of the Republic of South Africa, Act 108 of 1996, provides that any order made by a high court relating to Provincial or National legislation or the conduct of the President, must be confirmed by the Constitutional Court, before it has any force and effect.

Generally speaking, higher courts do not have direct oversight over day-to-day proceedings in lower courts, in that they cannot reach out on their own initiative (sua sponte) at any time to reverse or overrule judgments of the lower courts. Normally, the burden rests with litigants to appeal rulings (including those in clear violation of established case law) to the higher courts.

If a judge acts against precedent and the case is not appealed, the decision will stand.

A lower court may not rule against a binding precedent, even if the lower court feels that the precedent is unjust; the lower court may only express the hope that a higher court or the legislature will reform the rule in question.

If the court believes that developments or trends in legal reasoning render the precedent unhelpful, and wishes to evade it and help the law evolve, the court may either hold that the precedent is inconsistent with subsequent authority, or that the precedent should be distinguished by some material difference between the facts of the cases.

If that judgment goes to appeal, the appellate court will have the opportunity to review both the precedent and the case under appeal, perhaps overruling the previous case law by setting a new precedent of higher authority. This may happen several times as the case works its way through successive appeals. 

In federal or multi-jurisdictional law systems there may exist conflicts between the various lower appellate courts. Sometimes these differences may not be resolved and it may be necessary to distinguish how the law is applied in one district, province, division or appellate department. Usually only an appeal accepted by the court of last resort will resolve such differences and, for many reasons, such appeals are often not granted.

Any court may seek to distinguish its present case from that of a binding precedent, in order to reach a different conclusion. The validity of such a distinction may or may not be accepted on appeal.

An appellate court may also propound an entirely new and different analysis from that of junior courts, and may or may not be bound by its own previous decisions, or in any case may distinguish the decisions based on significant differences in the facts applicable to each case. Or, a court may view the matter before it as one of "first impression," not governed by any controlling precedent.

Where there are several members of a court, there may be one or more judgments given; only the ratio decidendi of the majority can constitute a binding precedent, but all may be cited as persuasive, or their reasoning may be adopted in argument. Quite apart from the rules of precedent, the weight actually given to any reported judgment may depend on the reputation of both the court and the judges.

It is no secret to observe that lawyers have their own unique discipline and approach to the resolution of legal problems. Not surprisingly, there are laws about determining the law. One of the most important of these laws is the law of precedent or stare decisis.

What the doctrine of precedent declares is that cases must be decided the same way when their material facts are the same. Obviously it does not require that all the facts should be the same. We know that in the flux of life all the facts of a case will never recur, but the legally material facts may recur and it is with these that the doctrine is concerned.

The ratio decidendi [reason of deciding] of a case can be defined as the material facts of the case plus the decision thereon.

Suppose that in a certain case facts A, B and C exist, and suppose that the court finds that facts B and C are material and fact A immaterial, and then reaches conclusion X (e.g. judgment for the plaintiff, or judgment for the defendant). Then the doctrine of precedent enables us to say that in any future case in which facts B and C exist, or in which facts A and B and C exist the conclusion must be X. If in a future case A, B, C, and D exist, and the fact D is held to be material, the first case will not be a direct authority, though it may be of value as an analogy.

It follows that the addition of fact D to a future case means that conclusion X may or may not follow. In other words, the presence of a new fact D may have the effect of distinguishing the future case from the precedent or conversely the precedent may be extended to apply to the future case.

There is considerable literature about whether the doctrine of stare decisis is a good or bad but, the doctrine is usually justified by arguments which focus on the desirability of stability and certainty in the law and also by notions of justice and fairness.

Benjamin Cardozo in his treatise, The Nature of the Judicial Process stated:

“It will not do to decide the same question one way between one set of litigants and the opposite way between another. “If a group of cases involves the same point, the parties expect the same decision. It would be a gross injustice to decide alternate cases on opposite principles. If a case was decided against me yesterday when I was a defendant, I shall look for the same judgment today if I am plaintiff. To decide differently would raise a feeling of resentment and wrong in my breast; it would be an infringement, material and moral, of my rights.”

 Adherence to precedent must then be the rule rather than the exception if litigants are to have faith in the even-handed administration of justice in the courts.

That the doctrine of stare decisis is related to justice and fairness may be appreciated by considering the observation of American philosopher William K. Frankena as to what constitutes injustice:

“The paradigm case of injustice is that in which there are two similar individuals in similar circumstances and one of them is treated better or worse than the other. In this case, the cry of injustice rightly goes up against the responsible agent or group; and unless that agent or group can establish that there is some relevant dissimilarity after all between the individuals concerned and their circumstances, he or they will be guilty as charged.”

If lawyers hold to their precedents too closely, forgetful of the fundamental principles of truth and justice which they should serve, they may find the whole edifice comes tumbling down about them.

Just as the scientist seeks for truth, so the lawyer should seek for justice.

Just as the scientist takes his instances and from them builds up his general propositions, so the lawyer should take his precedents and from them build up his general principles.

Just as the propositions of the scientist fail to be modified when shown not to fit all instances, or even discarded when shown in error, so the principles of the lawyer should be modified when found to be unsuited to the times or discarded when found to work injustice.