O’REGAN J provisions is to create an expressly normative legal system founded on the norms articulated in our Constitution. [16] Section 39(2) of the Constitution requires courts when developing the common law to promote the spirit, purport and objects of the Bill of Rights. In S v Thebus and Another,14 Moseneke J noted that there were at least two instances in which the need to develop the common law under section 39(2) of the Constitution could arise. “The first would be when a rule of the common law is inconsistent with a constitutional provision. Repugnancy of this kind would compel an adaptation of the common law to resolve the inconsistency. The second possibility arises even when a rule of the common law is not inconsistent with a specific constitutional provision but may fall short of its spirit, purport and objects. Then, the common law must be adapted so that it grows in harmony with the ‘objective normative value system’ found in the Constitution.” (footnotes omitted) It is necessary to consider the difficult question of what constitutes “development” of the common law for the purposes of section 39(2). In considering this, we need to bear in mind that the common law develops incrementally through the rules of precedent. The rules of precedent enshrine a fundamental principle of justice: that like cases should be determined alike. From time to time, a common-law rule is changed altogether, or a new rule is introduced, and this clearly constitutes the development of the common law. More commonly, however, courts decide cases within the framework of an existing rule. There are at least two possibilities in such cases: firstly, a court may merely have to apply the rule to a set of facts which it is clear fall 14 2003 (6) SA 505 (CC); 2003 (10) BCLR 1100 (CC) at para 28. 11