Makhanya v University of Zululand - LexisNexis South Africa

4[4] Whatever explanation is given invariably leads one back to thedecision of the Constitutional Court in Chirwa v Transnet Ltd, 3 in which themajority expressed the view that the high court had no jurisdiction toconsider the claim in that case. I will return to that decision in some detaillater in this judgment.[5] This case is not materially different to Chirwa – I will expand uponthat later in this judgment – and any attempt to distinguish them on theirfacts would be no more than a makeweight. That is the difficulty that nowconfronts us. On the one hand Fedlife (which seems to have had theapproval of that court) and the BCEA make it clear that the high court hasjurisdiction in this case. On the other hand if we are bound to apply the viewexpressed by the majority in Chirwa then we must reach the oppositeconclusion.[6] The doctrine of precedent, which requires courts to follow thedecisions of coordinate and higher courts, as Cameron JA said in this courtin True Motives 84 (Pty) Ltd v Mahdi, 4 is an intrinsic feature of the rule oflaw, which is in turn foundational to our Constitution. He went on to say:‘Without precedent there would be no certainty, no predictability and no coherence. Thecourts would operate in a tangle of unknowable considerations, which all too soon wouldbecome vulnerable to whim and fancy. Law would not rule. The operation of precedent,and its proper implementation, are therefore vital constitutional questions.’[7] He pointed out that ‘at this tender stage of our legal development, thedoctrine of precedent has special importance’ and warned that ‘this court32008 (4) SA 367 (CC); [2007] ZACC 23.4[2009] ZASCA 4 para 100.