South Africa as in most countries in the world is still applying a retributive (punitive) justice system whereby the accused is in the centre of interrogation and there is no or little concern regarding the victim of crime. The post ’94 RSA Truth and Reconciliation Commission (TRC) enabled the resurfacing of Restorative Justice Philosophy which has always been part of the African indigenous justice system. Punishing people for crimes committed seems to have only limited success, hence the need for a different approach and response.
RESTORATIVE JUSTICE – the road to healing
Restorative Justice aims to include everyone involved in a dispute and others affected by the harm (victims, offenders, families concerned and community members) in collectively identifying harms, needs and obligations through accepting responsibilities, making restitution, and taking measures to prevent a recurrence of the incident and promoting reconciliation.
Restorative Justice sees crime as an act against the victim and shifts the focus to repairing the harm that has been committed against the victim and community. It believes that the offender also needs assistance and seeks to identify what needs to change to prevent future re-offending. The victim and offender are part of the process/programme and the key decisions that are taken are influenced by them.
Restorative Justice processes comply with the rule of law, human rights principles and the rights provided in the South African Constitution; promote the dignity of victims and offenders, and ensure that there is no domination or discrimination.
Everyone involved receives complete information as to the purpose, their rights and the possible outcomes of the process; and is carefully prepared in processes and programmes, including the legal representatives, so the trial is balanced and fair, and promotes healing and restitution.
Department of Justice and Constitutional Development
Full Text: RESTORATIVE JUSTICE – The road to healing
Alternative Dispute Resolution
What is Alternative Dispute Resolution (ADR)?
Dispute resolution is, quite simply, the process of resolving a dispute between parties. Dispute resolution is also often referred to as “conflict resolution.” There are a number of processes that can be used to resolve conflicts, claims, and disputes.
Alternative dispute resolution, or ADR, refers to ways of addressing and settling disputes outside of court and its traditional, adversarial atmosphere.
The Bill of Rights Section 34 states:
- Access to courts
Everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum.
These processes can be used to solve any type of dispute, such as:
- Family Law Disputes: such as child custody, divorce proceedings, and child support order modifications;
- Neighbour Disputes: such as often disturbing the peace and issues with Homeowners’ Associations;
- Workplace or Employment Disputes: such as wage and hour disputes, and workplace harassment;
- Business Disputes: such as contract disputes and business debt;
- Housing Disputes: such as a landlord failing to maintain a habitable residence and housing discrimination;
- Physical Injury Disputes: such as medical malpractice cases and motor vehicle collision cases;
- Consumer Contract Disputes: such as product liability and warranty claims; or
- Environmental Disputes: such as toxic waste dumping and air pollution.
Alternative dispute resolutions are the ideal in a truly free, fair, just moral and ethical society; instead of pitting a battle, first seek to understand.
SA Jural Assembly and the SA People’s Courts will encourage people to use ADR as a first step, over going to court to order a resolution.
Further, many BAR courts actually require alternative dispute resolutions to be pursued before they will begin litigation, such as mediation and arbitration. Settling disputes outside of courts can save time and money, and often the processes are less formal and more flexible than those in the trial court.
Another advantage is the cooperation and creativity of the parties involved; due to the collaborative nature of ADR, each party may come to better understand the other’s position, and solutions that the court cannot legally impose may be implemented.
What Are the Different Types of Alternative Dispute Resolution (ADR)?
There are several types of alternative dispute resolution methods, and each process has its advantages. Some are court ordered, and not all require the presence of a counsellor in law (attorney).
However, many parties still opt to have their attorney represent them at ADR proceedings.
Some alternative dispute resolution methods are binding, meaning that the parties cannot ignore the ruling based on whether or not they agree with decision. Other ADR methods are non-binding, meaning the ruling can be ignored.
Some types of alternative dispute resolution are case evaluation, collaborative law, divorce coaching, and private judging. The two most common types are arbitration and mediation, both of which can be broken down further into different variations:
- Arbitration: Arbitration utilizes the help of a neutral third party, and is similar to an informal trial. After hearing each side, the third party issues a decision that the disputing parties may have agreed to be binding or non-binding. When binding, the decision can be enforced by a court and is considered final. Although the arbiter is an active facilitator and will pronounce a decision, the arbitration process is still less formal than an outright trial due to many of the rules of evidence not applying;
- Mediation: At first glance, mediation and arbitration are incredibly similar. One of the main differences is that a mediator, or impartial third party, cannot force the parties to agree and is not allowed to decide the outcome of the dispute. The mediator works with the parties to come to a solution that is made mutually, and the agreements are generally non-binding. Courts can mandate that mediation be required, but the process itself is still voluntary, therefore allowing the parties to refuse to come to an agreement. While in mediation, the parties maintain significant control over the process. Mediation is completely confidential and, since it is non-binding, parties retain the right to pursue litigation following the mediation process;
- Med-Arb: This form of ADR in one in which the arbiter starts as a mediator, but, should the mediation fail, the arbiter will impose a binding decision. Med-arb is a mixture of mediation and arbitration that pulls from the benefits of the two;
- Mini Trial: A mini trial is not so much a trial as it is a settlement process. Each party presents their highly summarized case. At the end of the mini trial, the representatives attempt to settle the issue. If they cannot, an impartial advisor can act as a mediator, or declare a non-binding opinion regarding the likely outcome of the issue going to trial. Mini trial is a unique ADR method, as it often comes after formal litigation, as opposed to before;
- Summary Jury Trial (SJT): An SJT is similar to a mini trial. However, the case is presented to a mock jury. The mock jury produces an advisory verdict. Additionally, it is order by the court rather than the parties. After the hearing the verdict, the court usually requires the parties to at least attempt to settle before litigation; or
- Negotiation: This form of ADR is often overlooked because of how obvious it is. In negotiation, there is no impartial third party to assist the parties in their negotiation, so the parties work together to come to a compromise. The parties may choose to be represented by their counsellors in law (attorneys) during negotiations.
Do I Need an Attorney for Assistance with Alternative Dispute Resolution (ADR)?
You should nearly always consider ADR prior to initiating formal litigation. Although one of the major benefits of alternative dispute resolution is reduced costs and time, an arbitration attorney could be worth using in commercial matters and dealing with RSA Inc.
One advantage is their ability to help you decide which form of ADR is right for your case. They can provide representation during ADR proceedings, but they can also provide consultations and strategy meetings beforehand.
In some cases, ADR may occur during litigation preparation, after parties have already secured their attorneys. And, some types of ADR require attorney presence. You should hire a knowledgeable and skilled attorney in the type of dispute you are facing.
We have the power to impact our future, and we’re doing something about it.
Alternative methods in Dispute Resolution are potentially better platforms for Access to Justice. We teach, develop, promote and practice non-adversarial and non-exclusionary methods of dispute resolution, less encumbered by over-regulation and the complex and artificial rules of litigation that have high potential to damage and, in some cases, destroy lives.
Mediation and Arbitration taught and practised through the lens of Restorative Justice can get us closer to a peace that arises out of the work of true justice.
Access to Justice is a Jurisprudential Principal that underpins the notion that all should have access to justice regardless of race, gender, religion, creed, ability or economic prowess or lack thereof. We have established the Access to Justice foundation to enable activism and advocacy in the world of Alternative Dispute Resolution and Peacemaking.
Alternative Dispute Resolution
Alternative Dispute Resolution methods are used to resolve and settle disputes without resorting to more adversarial, costly and cumbersome methods such as litigation. Negotiation, Conciliation, Mediation and Arbitration are all ADR methods.
Restorative Justice is an approach to the work of justice that seeks to make things right again. Punitive Justice seeks to find who committed a wrong and then figure out how to punish them. Restorative justice seeks to identify the harm, engage with all those affected and establish an approach that will bring about restoration for all involved including those who have harmed and those who have been harmed.
Seek first to understand:
Commercial Mediation and Arbitration
Labour and Employment Mediation and Arbitration
Chairing of Dismissal Processes
Medical Negligence Mediation and Arbitration
Chairing of High Conflict Board Meetings, Bodies Corporate Meetings, AGMs and Dialogue Processes
Restorative Justice in Schools, Workplaces and Criminal Matters
Property and Land Disputes
Victim-centric and child centric Restorative Justice
Preparation of witness statements and watching briefs on behalf of victims in criminal processes
Representation at Arbitration Proceedings
Contact us: http://www.adr-networksa.co.za/contact/
International Commercial Arbitration
Act No. 15 of 2017: International Arbitration Act, 2017
To provide for the incorporation of the Model Law on International Commercial
Arbitration, as adopted by the United Nations Commission on International Trade
Law, into South African law; to provide anew for the recognition and enforcement
of foreign arbitral awards; to repeal the Recognition and Enforcement of Foreign
Arbitral Awards Act, 1977; to amend the Protection of Businesses Act, 1978, so as to delete an expression; and to provide for matters connected therewith.
UNCITRAL MODEL LAW ON INTERNATIONAL COMMERCIAL ARBITRATION
UNCITRAL CONCILIATION RULES
South Africa is an arbitration-friendly jurisdiction. South African courts recognise that any party may choose arbitration as a legitimate and constitutionally permissible form of dispute resolution. Accordingly, the courts are willing to enforce any valid arbitral award on the same basis as a judgment of the High Court of South Africa, unless there is an exceptional reason for not doing so.
This note sets out the legal framework in South Africa for international arbitration, which is governed by the International Arbitration Act 2017 (IAA 2017). The note also considers relevant case law on arbitration agreements, arbitral tribunals, arbitral process, awards, challenges to awards and enforcement.
Sources of South African international arbitration law
The IAA 2017 came into force on 20 December 2017 with the aim of consolidating and updating South African law on international commercial arbitration.
The IAA 2017 applies to any international commercial dispute that the parties have agreed to submit to arbitration under an arbitration agreement and which relates to a matter that the parties are entitled to dispose of by way of arbitration, unless:
The dispute is not capable of determination by arbitration under any law of the Republic.
The arbitration agreement is contrary to the public policy of the Republic.
(Section 7, IAA 2017.)
Subject to section 13 of the Protection of Investment Act 22 of 2015, the IAA 2017 also binds public bodies and applies to any international commercial arbitration in terms of an arbitration agreement to which a public body is a party (section 5, IAA 2017).
Read more at:
George Bizos on Law, Justice and Morality: South Africa is at a crossroad -again!
At the School of Practical Philosophy Plato week held at Salisbury House, Johannesburg, in April 2013, Advocate George Bizos, lifelong friend of Nelson Mandela and renowned human rights lawyer since the apartheid era, spoke of the constant tensions between law, justice and morality in colonial, apartheid and democratic South Africa.
“Most notably, during apartheid, sophists supporting the regime would rely on what is termed Plato’s “useful falsehood.” In The Republic Plato argues that human beings (like the metals gold, silver, and iron and bronze) ‘possess different natures that fit each of them to a particular function within the operation of the society as a whole.’ It is my view that Plato was incorrect when he chose this particular metaphor. Human beings have minds, feelings; they yearn for dignity, equality and freedom-the value that each human being can make to a society cannot, and should not, be pre-determined.”
Further reading at: http://www.practicalphilosophy.org.za/
Constitution of South Africa
On 27 April 1994, a new constitutional order came into existence with a commitment to equality, freedom and dignity for the Republic of South Africa in which the welfare and rights of the entire mass of people are the main consideration, rather than the privileges of a class or the will of a monarch.
A justiciable Bill of Rights is at centre stage in this new order. The Bill of Rights affirms a fundamental right to lawful, reasonable and procedurally fair administrative action in terms of the common law, the Constitution, other jurisdictions and the Promotion of Administrative Justice Act 3 of 2000.
A requirement of section 35(3) of the interim Constitution was that the common law, customary law and other jurisdictions such as natural law and natural justice be applied and developed, with due regard to the spirit, purport and objects of the Bill of Rights.’
In the words of retired Constitutional Court judge Albie Sachs:
“We are a new Court, established in a new way, to deal with a new Constitution. We should not rush to lay down sweeping and inflexible rules governing our mode of analysis. We need to develop an appropriately South African way of dealing with our Constitution, one that starts with the Constitution itself, acknowledges the way it came into being, its language, spirit, style and inner logic, the interests it protects and the painful experiences it guards against, its place in the evolution of our country, our society and our legal system, and its existence as part of a global development of constitutionalism and human rights.” (S v Mhlungu 1995 (7) BCLR 793 (CC) at 917 per Sachs J.)
The South African legal system is based on Constitution supremacy and any law that is inconsistent with the Constitution is null and void to the extent of its inconsistency with the Constitution. It has its roots from Roman Dutch law, from the common law owing to its English colonial history, and African Customary law and African Indigenous Justice philosophy.
Southern Africa law therefore consists of legal plurism which according to Professor Chuma Himonga is:
“The various legal orders existing in a State polity, that is, State law, indigenous law, and other normative orders are not completely independent of each other; they interact in various ways and at various levels. Presumably, their respective values also interact, or in some way rub against each other, so that they influence each other. In legally pluralistic States, therefore, one may find not only one but several, even mixed, legal cultures reflecting the interacting, diverse, legal systems.”