- Title
- An Unprecedented 'Precedent'?: Phodiclinics (Pty) Ltd v Pinehaven Private Hospital (Pty) Ltd (594/2010)[2011] ZASCA163 (28 September 2011); 2011 4 All SA 331 (SCA)
- Creator
- Glover, Graham B
- Date
- 2013
- Type
- text
- Type
- article
- Identifier
- http://hdl.handle.net/10962/69950
- Identifier
- vital:29598
- Identifier
- https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2364288
- Description
- There are some fundamental underlying requirements that need to be in place for a system of precedent to operate. Of these I wish to isolate two that are germane to this note. The first is that court decisions (especially those in which a written judgment is handed down) need to be clearly reasoned and logically articulated to be understandable, effective and to have value in a system of precedent that finds its ultimate lodestar in the rule of law. There is no constitutional or statutory requirement that a court in all cases must furnish reasons, or even written reasons, for its decision But the practice of doing so, the Constitutional Court has said, supports the rule of law, ensuring that judicial decision-making does not occur in a manner that is arbitrary, and ensures that judges may be held accountable for their decisions. The second requirement is a technical rule – the rule of majority: if the case is heard by a full bench, and where differing opinions are handed down by the judges hearing the case, the ratio decidendi can only be identified from those judges whose reasoning is in the majority.
- Format
- 11 pages, pdf
- Language
- English
- Relation
- Journal of Contemporary Roman-Dutch Law, Glover, G., 2013. An Unprecedented'Precedent'? Phodiclinics (Pty) Ltd v Pinehaven Private Hospital (Pty) Ltd (594/2010)[2011] ZASCA163 (28 September 2011); 2011 4 All SA 331 (SCA)., Journal of Contemporary Roman-Dutch Law volume 76 302 312 2013 9780409079241
- Rights
- SSRN
- Rights
- The use of this resource is governed by the terms and conditions of the SSRN Copyright and Intellectual Property Policy (https://www.ssrn.com/en/index.cfm/dmca-notice-policy/)
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Glover, Graham (Prof)
RU Department of Law
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