ABSTRACT
When Parliament enacts a statute, the courts interpret it, leading to the creation of Case Law. This is often called ‘judge-made’ law. Yet some, at least, of the judges claim that they do not make the law – they only interpret it. ‘My function’, said Wessels J in Seluka v. Suskin & Salkow1 ‘is jus dicere not jus facere’. Yet the great American judge Oliver Wendell Holmes, in a dissenting opinion, recognised ‘without hesitation that judges do and must legislate, but they do so interstitially; they are confined from molar to molecular motions.’2
