Barry Streek
The South African Law Commission has recommended that community-based dispute resolution structures, normally known as “community courts” be recognised and supported by law.
In a discussion paper on community dispute resolution structures, the commission says these structures serve a useful purpose in meeting the needs of the majority of South Africans for accessible justice, and should therefore be recognised and supported by law.
The commission suggests that these structures could in future be called “community forums” and they “should not be considered to be courts but dispute- resolution and peacemaking structures which provide justice for local communities.
“To call them courts confuses the issue because it pre-empts many questions, including those of jurisdiction, training of personnel, voluntariness of participation and the binding nature of decisions.
“Recognition of these community structures should be based on an Act of Parliament setting out their status, role, function, jurisdiction, procedure and other related matters.”
Any legislation should be drafted only after careful investigation and consultation and should take the form of creating a broad framework flexible enough to accommodate the different kinds of community structures that already exist while setting out minimum standards for the operation of these structures.
“Decisions at any community forum [should be] binding on the parties only if they have agreed beforehand to be bound by such decisions. Certain levels of community forum should not have decision-making powers, their task being mainly to facilitate reconciliation between the disputants,” according to the commission.
When a community forum reaches a decision, the role of the law should be to ensure that the agreement or settlement is respected.
“Care must be taken to ensure that community forums remain informal and flexible in their procedures, inexpensive in their operations, and accessible, non- alienating and responsive to the needs of the communities in which they operate.”
It is suggested that “since community forums do not stand in a hierarchical relationship to the formal courts, there should be no question of appeal from these structures to the formal courts. If the matter remains unresolved, the parties [should] retain their rights as citizens to pursue the dispute in any other form of their choice.
“Separation from the formal justice system should not mean the insulation of community courts from supervision or accountability. A system of regional or provincial ombudsmen should be established to oversee the work of community forums and to enforce uniform standards.”
Community forums should function at all times within the laws and the Constitution. Where there is a functioning customary court in a rural area, a community forum should not be introduced.
Training in various aspects of leadership, mediation and the ideas of restorative justice should be given to the individuals who operate community forums.
The commission says that South Africa’s formal legal system is perceived by certain sections of the population, notably black South Africans, as illegitimate, repressive or too expensive a process.
It is seen as alien, inaccessible and inappropriate for dealing with conflict which most South Africans experience in their daily lives.
The inability to meet the needs of ordinary citizens was not merely because of the content of the substantive law, but also because the structure and procedural requirements of the courts mean that many black people are denied access to the courts.
“Community courts should be distinguished from the kangaroo courts which existed within a political context in the 1980s, when ‘mob justice’ was meted out by people who did not represent structures which ordinarily would deal with justice issues in those communities, and which earned popular justice an unsavoury reputation.
“Effective government is largely dependent on a legal system that is respected by those it is intended to serve. The challenge facing the democratic state is therefore to ensure that the justice system is acceptable and accessible to the larger community,” the commission says.