Discussing the results of a gruelling midyear contract law test during my third year of studies at Stellenbosch University, our much-admired lecturer, Prof Gerhard Lubbe, noted that some of us answered a question by writing “the Appeal Court said this, Prof Lubbe said the opposite, the Appeal Court is wrong”.
The SCA and Constitutional Court’s decisions are the law. Lower courts have to follow them, and it is difficult — nigh on impossible — for these apex courts to reverse their own decisions. There must be compelling reasons before a court will tamper with precedent. When it does, it is more likely to expand a previous decision than to limit or revoke it. Without precedent, legal systems collapse.
The problem with this draft opinion is the reasoning used by Samuel Alito, writing for a majority of the judges, as to why the court is not bound by precedent that had been accepted as settled law for half a century.
In SA, the constitutional rights to privacy and dignity have similarly been used to protect diverse rights such as same-sex marriage and the right to antiretroviral drugs — rights that brought positive change to millions even though they are not expressly mentioned in the constitution. Even the famous Makwanyane decision that outlawed the death penalty is based, in part, on the constitutional right to dignity.
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