Some of the challenges that have faced many countries in Sub-Saharan Africa in the administration of justice can be attributed to the over-reliance on the courts in the resolution of all forms of disputes, even where other forms of dispute resolution would have been more appropriate. South Africa has one of the fastest developing alternative dispute resolution (ADR) systems in Africa. This can be partly credited to the numerous NGOs financed by donors who undertook ADR efforts throughout South Africa before the transition of government during apartheid. One of the most notable NGOs that facilitated ADR mechanisms, is the Independent Mediation Service of South Africa (IMSSA).
After the transition of power from the apartheid government to the democratic government, ADR has continued to be effective in addressing labour disputes, family disputes and land claims. Consequently, the South African government established various dispute resolution centres like the Commission for Conciliation, Mediation and Arbitration (CCMA) for the resolution of labour disputes, the National Land Reform Mediation Panel for land disputes, family mediation boards, local community courts and several other state agencies. The modes of dispute resolution in South Africa include; conciliation, mediation, fact-finding, arbitration and a combination of conciliation and arbitration (con-arb). The most utilised forms being arbitration and conciliation.
Providing an alternative
The use of ADR in South Africa demonstrates an opportunity to substitute poorly functioning formal dispute resolution systems with more flexible and easily accessible processes of fostering peace as a part of a widespread reform process. The government has embarked on a strategy to sensitise communities on ADR options in order to increase awareness on the alternatives to litigation. Furthermore, the South African Arbitration Act empowers courts to refer cases to ADR where they see fit – this in turn lessens the burden of the courts.
Today ADR has emerged as a way to avoid court litigation processes in that litigation would be the last resort and only used in cases where it was absolutely necessary. There is a clear framework for mediation and conciliation which eases and legitimises the process through the Act. It has been successful in managing tensions and conflicts in communities, especially post-apartheid. In addition, ADR has been utilised by the National Land Reform Mediation Panel with a focus on resolving land dispute claims, which have been known to threaten the social and economic stability of the country.
Access to justice
In South Africa, ADR has developed as a way to facilitate access to justice for all. The structure of ADR in South Africa has enabled greater access to justice for the poor, the illiterate and in particular rural communities who often have difficulty navigating court proceedings, and may not trust the formal court system. It has the support of the government, multiple donors and NGOs and most importantly, the people’s trust. South Africa’s ADR system serves as a model for many African states who are still struggling with ADR in their legal systems like Sudan, Ghana, Malawi and Democratic Republic of Congo.
Notwithstanding, South Africa’s Arbitration Act is not perfect. It has yet to make adjustments to suit the recommendations of the United Nations Commission on International Trade Law (UNCITRAL) being adopted by many countries like Kenya, Uganda, Burundi, Nigeria, Namibia, and Zimbabwe. These recommendations would among other things broaden the scope of application of the Act to include international disputes. Because of this, multinational companies wishing to solve their disputes must look to other jurisdictions like Mauritius to do so.
South Africa therefore lags behind in this aspect and it also does not help that in South Africa, ADR is costly and time consuming. Despite these shortcomings, there is still strong support for the advantages of ADR in South Africa evidenced by the increasing number of people resorting to mediation, arbitration and conciliation. This goes to show that ADR is not only useful in solving disputes but can make a big impact on social-economic growth which is very critical in many African states.
Written by Petrina Ampeire.
Petrina Ampeire Bireije is a writer by day and reader by night. She is also an LLM candidate at the University of Kent (Brussels School of International Studies) in Human Rights Law with a secondary spécialisation in International Law, and has a bachelors degree in law from Uganda. She is passionate about promoting access to justice and problem solving in contemporary Africa, having worked at the Ministry of Justice and Constitutional Affairs in Uganda. Petrina is currently an editorial intern for the International Mediation Institute, she mainly writes on mediation and the process of conflict resolution in Africa.