This Article tells the story of two South African Constitutional Court cases. The first dealt with minimum sentences for sixteen- and seventeen-year-olds, the second with the criminalization of consensual sex between adolescents aged twelve to sixteen years. The decision about whether to rely on neuroscientific evidence in the first case was affected by the fact that the legal team already knew that the second case would be brought.
This Article explores the considerations that were at play in deciding on a winning strategy for both cases. The author was a member of the legal team in both cases, and the Article therefore provides insights about these questions from a unique perspective. Is the kind of decision making under the spotlight in these two cases sufficiently different to warrant a different approach in each matter? Alternatively, is it the consequences of the action arising from each decision that warrant different approaches in both? What theoretical approach is sufficiently flexible to allow for different approaches in each case? These questions relating to the two South African cases are explored against the backdrop of relevant U.S. jurisprudence.