Stare decisis

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. What concerns us here is the rule stare decisis.

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 Savvas 1931 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 Venter case, 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. (see for instance the Bhe case referred to supra - Editor

Republished with permission