Can courts choose between the law and its consequences?

‘Hard cases make bad law” is an old saying. Should courts consider the possible disastrous practical consequences of an order that results from thorough and proper constitutional and legal reasoning? Must a “safer” but legally imperfect route sometimes rather be followed? 

Awaiting the supreme court of appeal judgment on former president Jacob Zuma’s parole, Mail & Guardian journalist Emsie Ferreira reminded me of this question. Might the man’s age and health and the expected reaction of his supporters outweigh a strictly legal conclusion that he should return to prison, if that is what the court arrives at? 

The question is not new. I remember well the dilemma of the independent panel of so-called recognised constitutional experts when tricky questions urgently required definitive answers during tense moments in the rainy Cape Town nights of the Constitution-drafting process. A correct but insensitive answer could cause political agreements to collapse and hell to break loose.