1887

n African Journal on Conflict Resolution - Traditions of conflict resolution in South Africa

Volume 1, Issue 1
  • ISSN : 1562-6997

Abstract

In the domain of law, and elsewhere, alternative dispute resolution can be used in more than one way. It may signify a recognition that there are other methods than litigation, and that these may sometimes be more appropriate. But it may also serve as a label for methods which are frowned upon as popular but amateurish. This article is written from the perspective that the deep roots and valid reasons for tradi- tional conflict resolution methods and customs should be taken seriously. They form part of time- proven social systems, in which the objective is usually more than just settling a case. Such methods, whether they include more adjudication or more mediation, are especially oriented towards reconciliation and the maintenance or even improvement of social relationships. Representative examples from a few South African societies are discussed, as well as the current situation of Western and customary law, modern courts and tribal courts, legal professionals and traditional leaders. Possibilities for the future are pointed out, in an increasingly urbanised South Africa, but a South Africa with a new Constitution..methods of tribal courts resemble in some respect those of councillors in our own society, they approximate more to the methods of our courts. They are authoritative. ( Gluckman 1965: 187) The importance of the process, therefore, lies in the goal it has set itself and that, invariably, is to restore a balance, to settle conflict and eliminate disputes. One of the most important features distinguishing between western and African processes of dispute settlement is the manner in which the social relationships between the parties involved in the respective processes are treated. Nader and Todd, referring to the analysis adopted by Gluckman, argue that these relationships are either simplex or multiplex. The relationship determines the procedural form of the attempt at settlement and thus determines the outcome of the dispute ( Nader & Todd 1978: 12- 13) . The ensuing hypothesis is that the parameters of the settlement process are determined by the nature of the relationships involved. Accordingly, multiplex relationships depend upon measures of negotiation or mediation to result in compromises, whereas simplex relationships depend upon adjudication or arbitration to end up in win or lose decisions ( Nader & Todd 1978: 13) .

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/content/accordr/1/1/EJC16225
2000-01-01
2019-10-23

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