“A friend of mine is studying law and he 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 it quite strange as I always thought we have existing laws that our courts merely 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. Rather, our courts do so through the interpretation of our legislation and by 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.” 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, in matters with the same facts or questions of law a High Court must follow the prior decision of the Supreme Court of Appeal or Constitutional Court or even of a High Court in the same jurisdiction. 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, thus contributing to an environment of legal certainty and consistency, which is very necessary for a country which prides itself on the importance of the rule of law.

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

However, for a previous decision to be overturned  it 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. It should be noted that until a court is satisfied that  a 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 as this would cause  inconsistency and arbitrariness in our law.

The principle of stare decisis is therefore vital to our law and creates consistency and transparency in our legal system. At the same time our law has the ability to evolve to enable it to remain relevant as our society grows and places new demands on our legal system.