The doctrine of precedent and the value of s 39(2) of the Constitution

April 1st, 2017

By Bayethe Maswazi

The principle of stare decisis is a juridical command to the courts to respect decision already made in a given area of the law. The practical application of the principle of stare decisis is that courts are bound by their previous judicial decisions, as well as decisions of the courts superior to them. In other words a court must follow the decisions of the courts superior to it even if such decisions are clearly wrong. The importance of this principle is best illustrated by the words of Brand AJ, as he then was, in the case of Camps Bay Ratepayers’ and Resident Association and Another v Harrison and Another 2011 (4) SA 42 (CC), when he said: ‘Stare decisis is therefore not simply a matter of respect for courts of higher authority. It is a manifestation of the rule of law itself, which in turn is a founding value of our Constitution.’ Clearly the above dictum does give the doctrine of precedent a constitutional flavour, but whether the doctrine ought always to be subject to the Constitution or vice versa, Brand AJ did not deal with that, opining as he did that the issue was not relevant in the instant matter since he was dealing with post constitutional precedent. That observation illustrates the complexity of the issue, at least when a pre-constitutional precedent is relevant and binding. The issue though does not only pertain to pre-constitutional precedents, even post constitutional precedent may sometimes present problems.

In this article I examine whether a court in a given scenario is bound by the principle of stare decisis in circumstances where it deals with the decision or precedent set by a court superior to it, particularly, if the latter has interpreted a particular legislative provision in a manner which plainly does not accord with the command or the constitutional directive contained in s 39(2) of the Constitution. I further examine the relationship between s 39(2) of the Constitution and the doctrine of precedent with a view to determine the extent to which courts have solved the possible conflict between the two. The question then is, in the event of the conflict between the doctrine and s 39(2) of the Constitution, which of the two principles must reign? The obvious answer is that s 39(2) by virtue of the supremacy of our Constitution must reign. An excavation of various court decisions suggests that the issue is not that simple and courts have not given a clear answer or where direction has been given by the Constitutional Court (CC), lower courts have not readily followed. Is there a real conflict between the two principles? If so, can a reconciliation between them be achieved? Confronted by a binding precedent on the one hand and s 39(2) on the other in a given legal issue, where does a court go? These questions are not intended to suggest that there is an automatic conflict that arises at every given interface between the doctrine and s 39(1) of the Constitution. On the other hand, they arise because there has been a trend where the significance of s 39(2) have somehow been diminished. The survey of these cases in this article will reveal this tendency.

The meaning of s 39(2) of the Constitution

Section 39(2) directs every court or tribunal – when interpreting legislation or developing common law or customary law – to promote the object, purport and spirit of the Bill of Rights. The development of common law and customary law are beyond the scope of this article, which is concerned only with the interpretation of legislation, though s 39(2) affects the common law and customary law as well as the section suggests. There are various pertinent factors that arise out of the reading of s 39(2). Firstly, the section confronts directly and singularly every court as it interprets legislation. Secondly, it imposes a duty on courts to view every legislation through the lens of the spirit, object and purport of the Bill of Rights, by making sure that its spirit, purport and object percolate through the interpretive process. In other words, the final product of each interpretive process must exhibit proof of the promotion of the purport, spirit and object of the Bill of Rights. Section 39(2) does not necessarily imply the elevation of a particular right in the Bill of Rights, nor a transfiguration of same into spirit, purport and object of the Bill of Rights. The meaning then, I submit, of the purport, spirit and object of the Bill of Rights is not the raw collections of the rights in the Bill, it is the profound and collective message found in the values of the Constitution as encapsulated in s 1 of the Constitution. What s 39(2), therefore, asks for is that, these values must shine through in the interpretive process. I do not propose this as the best meaning of s 39(2), rather I suggest it as the most preferable approach towards the interpretation of s 39(2). No occasion has arisen, so far, for the CC to consider itself confronted by the issue as to what is the true or best meaning of s 39(2), at least not to my knowledge, nor has the CC ever been asked how courts ought to approach the interface between s 39(2) and the doctrine of precedent, an issue which makes this article all the more significant.

In Investigating Directorate: Serious Economic Offences and Others v Hyundai Motor Distributors (Pty) Ltd and Others: In re Hyundai Motor Distributors (Pty) Ltd and Others v Smit NO and Others 2001 (1) SA 545 (CC), Langa DP had an occasion to consider the meaning of s 39(2) and he opined as follows: ‘The purport and objects of the Constitution finds expression is s 1, which lays out the fundamental values which the Constitution is designed to achieve.’

The Hyundai case is not, in my view, the best example to illustrate the importance of s 39(2) because the case implicated directly various rights in the Bill of Rights, yet the provisions of s 39(2) do not demand judicial attention only when there is a constitutional issue to be considered, they seek attention of the court whenever it interprets legislation. Nonetheless, the Hyundai matter was an important foundation in this regard.

The pertinent precedent on s 39(2) and stare decisis

In S v Walters and Another 2001 (10) BCLR 1088 (TK) Jafta AJP was confronted with a question of whether s 49 of the Criminal Procedure Act 51 of 1977 (CPA) in sanctioning a peace officer to kill a fleeing suspect who is suspected of committing a schedule 1 offence, was constitutional. Having examined the applicable precedent including the decision of the Supreme Court of Appeal (SCA) in Govender v Minister of Safety and Security 2001 (4) SA 273 (SCA), he came to the conclusion that the section was unconstitutional. Of interest in the case is that even though the court in the Walters matter had a wide opportunity to consider whether to avoid the applicable judicial precedent, which was binding on it through s 39(2) of the Constitution, the court chose not to refer to the section at all. In the result Jafta AJP lost an opportunity to define the relationship between s 39(2) and the doctrine of precedent, even though he grappled with the question whether he was bound by the SCA decision in the Govender matter.

In Minister of Safety and Security v Sekhoto and Another 2011 (5) SA 367 (SCA), Harms DP in a unanimous decision, took the opportunity to consider whether a peace officer – when considering the arrest of a suspect under s 40 of the CPA – must also additionally consider whether there are other less restrictive means of securing the attendance of the suspect at court. This was in the context of the decisions of the various High Courts, which had held that arrest must be a last resort, in other words, a peace officer must consider alternative to arrest before actually effecting the arrest. Harms DP issued a stern rebuke of the High Courts and held that this was not necessary since the jurisdictional requisites of an arrest are contained is s 40 of the CPA, no more is needed by the peace officer other than the factors set out in s 40. Of s 39(2) he merely held that it was not suggested in what way s 40 of the CPA may be interpreted to promote the purport, spirit and objects of the Bill of Rights. In other words he was not convinced that as he was interpreting s 40 of the CPA, he had to consider s 39(2) of the Constitution in interpreting s 40 of the CPA.

In Makate v Vodacom Ltd 2016 (4) SA 121 (CC), the CC had to consider the provisions of the Prescription Act 68 of 1969. Jafta J recognised the significance of s 39(2) when dealing with pre-constitutional precedent. However, this recognition was somehow dampened by the observation Jafta J made when he said at para 90: ‘The Constitution in plain terms mandates courts to invoke the section [s 39(2)] when discharging their judicial function of interpreting legislation. The duty is triggered as soon as the provision under interpretation affects the rights in the Bill of Rights.’

Section 39(2) on its plain wording seems applicable every time a court interprets legislation not only when that legislation affects the Bill of Rights. Therefore, with respect, the last sentence of the above passage is not necessarily the correct interpretation of
s 39(2). The interpretation attached to the section by Jafta J in the above dictum illustrates the complexity surrounding this section. But, the Makate case was not dealing with the interface between s 39(2) and doctrine of precedent, accordingly, while it is important for the definition of the section, it bears less relevance to the theme of this discussion.

In Turnbull-Jackson v Hibiscus Coast Municipality and Others 2014 (6) 592 (CC) the CC was confronted with the argument that the decision of the CC in Walele v City of Cape Town and Others 2008 (6) SA 129 (CC) was more in accordance with the provisions of s 39(2) than the SCA decision in True Motives 84 (Pty) Ltd v Mahdi and Another 2009 (4) 153 (SCA) concerning the meaning of s 7(1)(b) of the National Building Regulations and Building Standards Act 103 of 1977. The pity though is that s 39(2) did not play as significant a role as expected in the overall decision in the Turnbull-Jackson case.

Overall these cases illustrate the complex role that s 39(2) of the Constitution has played so far in our jurisprudence, particularly with the inconsistent recognition that the section has been accorded by our courts. The fact that no case has considered pertinently, which direction our jurisprudence must take in the relationship between s 39(2) and the doctrine of precedent, is an illustration of the fact that this section has not been given as much recognition in our jurisprudence as one would expect.


Section 39(2) has had a difficult journey within the South African jurisprudence, from its inception its interface with judicial precedent has made the journey all the more complex. The voice of the CC as the guide to the SCA and the various High Courts is needed. Regardless of this situation, it is unlikely that the section will be subordinated to judicial precedent given the supremacy of the Constitution. It is the doctrine that should be subordinated to the Constitution and not the Constitution to the doctrine. The common law must develop in consonant to the Constitution. Section 39(2) is equally an important mechanism of building a solid human rights jurisprudence demanded by s 1 of the Constitution, the sooner our courts realise this, the better. There is a need to give meaning to the relationship between s 39(2) and the judicial precedent, our courts must be urged to define this relationship, it is important for the survival of the nascent human rights culture that we have built since 1994.

Bayethe Maswazi BProc (UNITRA) LLB (Fort Hare) is an attorney at Mbubane and Sokutu Inc in East London.

This article was first published in De Rebus in 2017 (April) DR 28.