The person who listens to both sides of the case in the court, and who then decides which side is right and which side is wrong, is called the judge or magistrate. The decision of the judge or the magistrate is called a judgment.

A judgment can be made in one of 3 ways:

• The judge or magistrate looks to see if there is a rule in law which fits the case. If there is already a rule, then the judge or magistrate must use it.
• Sometimes there is no rule to fit the case. The judge or magistrate must now make his or her own judgment. If the judgment sets a new rule of law, this creates a PRECEDENT. In other words, the judge sets a new standard.

Example:
Imagine the law says that you must rest on Sundays. You go to a film one Sunday and you are accused of breaking the law because you are not ‘resting’. In court, you tell the magistrate that you were not breaking the law because watching a film is the same as resting for you. The magistrate decides that this is correct and so a precedent is set that you can now watch films on Sundays.

• Sometimes there is a rule which covers the facts of the case but it has always been applied in a particular way. A person may argue that the rule can be applied in a different way. If the judge or magistrate decides that the rule can be used in a new way, then the judge or magistrate gives a new interpretation or explanation of that law. This judgment can also be called a PRECEDENT.

A precedent becomes the law, unless it is rejected or changed by a higher court. A precedent is important because it becomes the new law and so will be used in future judgments.

The Constitution requires all courts to develop the law in line with the Constitution before finding it unconstitutional. If a court finds the law unconstitutional it must be referred to the Constitutional Court to confirm that finding.

In constitutional cases, the precedent of the Constitutional Court must be followed by all courts. In other cases, the precedents of the Supreme Court of Appeal must be followed by the courts below it, namely, the high courts and magistrates’ courts.

In the same way, the precedents of the high court (provincial and local courts) must be followed by all magistrates’ courts.

Parliament can change a precedent by making a new law.