NGCOBO J
court.
In Zuma,104 the Court examined the constitutionality of the presumption
relating to the admissibility of confessions in criminal trials. Kentridge J stated that
“[t]he presumption of innocence [in section 35(3)(h) of the Constitution] cannot
depend on the exercise of discretion.”105 On the other hand, the Court has often
endorsed the exercise of discretion by judicial officers as compatible with the
applicable constitutional obligation at issue.106
[120] The importance of judicial discretion cannot be gainsaid. Discretion permits
judicial officers to take into account the need for tailoring their decisions to the unique
facts and circumstances of particular cases. There are many circumstances where the
mechanical application of a rule may result in an injustice. What is required is
individualised justice, that is, justice which is appropriately tailored to the needs of the
individual case. It is only through discretion that the goal of individualised justice can
be achieved. Individualised justice is essential to the proper administration of justice.
As Dean Pound pointed out some fifty years ago:
“in no legal system, however minute and detailed its body of rules, is justice
administered wholly by rule and without any recourse to the will of the judge and his
personal sense of what should be done to achieve a just result in the case before
him.”107
104
S v Zuma and Others [1995] ZACC 1; 1995 (2) SA 642 (CC); 1995 (4) BCLR 401 (CC).
105
Id at para 28.
106
See for example S v Dlamini; S v Dladla and Others; S v Joubert; S v Schietekat [1999] ZACC 8; 1999 (4)
SA 623 (CC); 1999 (7) BCLR 771 (CC) at para 50; Sanderson v Attorney-General, Eastern Cape [1997] ZACC
18; 1998 (2) SA 38 (CC); 1997 (12) BCLR 1675 (CC) at para 30; and Shabalala and Others v Attorney-General
of the Transvaal and Another [1995] ZACC 12; 1996 (1) SA 725 (CC); 1995 (12) BCLR 1593 (CC) at para 55.
107
Cited in Davis Discretionary Justice: A Preliminary Inquiry (Louisiana State University Press, Baton Rouge
1969) at 17.
63
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents