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 traditional 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.
It was my fortune to be well versed in the fundamentals of what is called Native Law and Custom, so I was able to take up my court work with no great difficulty. But my main pleasure in this activity came from the rewarding attempt to reconcile people who were at variance, and from the debate involved. I love the impact of mind upon mind, and I love thrashing things out in the attempt to get at the truth. The procedures of the court give these things orderliness, and getting at the truth is worth while for its own sake. The dying arts of exposition hold great attraction for me. (Luthuli 1962:56) 1. Introduction The use of alternative methods of conflict resolution by the traditional societies of South Africa is deeply rooted in the customs and traditions of the various tribes of the sub-continent. These range from the fairly rudimentary processes of the Khoisan of the remote Northern Cape to the sophisticated traditional courts of the Zulu in KwaZulu-Natal. Some methods of conflict resolution as practised by traditional societies of South Africa, which are representative of the main tribal affiliations in the region, will be considered here. Reference will be made to the provisions of the Constitution and Bill of Rights that will play an important role in the development of South African jurisprudence, especially in respect to customary law, and to the central role of chiefs and headmen in the conflict resolution process (Hammond-Tooke 1993:65). 2. Western and African court processes of dispute settlement Bennett reflects on the judicial process in an African context and compares it with its western counterpart. The essence of the African process was reconciliation of the parties in an environment quite the opposite of the western model, which seems designed to alienate and confuse the litigant (Bennett 1993:32). Gluckman, in similar vein, points out that in the case of western judges there is some judicial intervention in divorce cases and family disputes designed to getting the parties to settle their differences. He illustrates the point by referring to marriage guidance councillors who work on disputing parties as Lovedu and Tiv judges do, without authority to lay down decisions or enforce verdicts . For, in the end, though the
Traditions of Conﬂict Resolution in South Africa
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...