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1
van der Waal, C. S. "Formal and informal dispute resolution in the Limpopo Province, South Africa." Anthropology Southern Africa 27, no. 3-4 (January 2004): 111–21. http://dx.doi.org/10.1080/23323256.2004.11499906.
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Rantsane, Ditaba Petrus. "The Origin of Arbitration Law in South Africa." Potchefstroom Electronic Law Journal 23 (November 3, 2020): 1–27. http://dx.doi.org/10.17159/1727-3781/2020/v23i0a8963.
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This article seeks to trace the historical origin of arbitration as it is currently practised in South Africa. The resort to alternative dispute resolution methods has existed since time immemorial. The practice of arbitration was identified in the Bible when it was practised by King Solomon. South African traditional communities practised arbitration before the arrival of Western nations in South Africa, who brought with them their norms and practices. The community entrusted the responsibility of resolving disputes amicably to the headman, the Chief or the King. The practice of traditional alternative disputes resolution was disrupted by colonialism, which introduced Roman-Dutch law and subsequently English law influences. The aim of the parties under both Roman-Dutch law and English law was to steer their disputes away from courtrooms with their rigid rules and procedures. Hence the resort to arbitration. Through the passage of time, the parties lost respect for arbitration. Judicial intervention became a necessary tool to enforce the agreement to arbitrate or the subsequent award.
A concern was raised in some quarters regarding the South African arbitration legislation that stagnated in 1965 when it was enacted. The sophisticated legal system and the impartial and independent judiciary, provided a strong support to arbitration and its autonomy. The firm judicial support did not detract from the necessity for a complete overhaul of the arbitration prescript, which might position South Africa as the hub of commercial arbitration in Africa and globally. The enactment of the International Arbitration Act, 2017 marked a great milestone towards achieving that goal. Arbitration is embedded in the fabric of South African commercial dispute resolution.
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McQuoid-Mason, David. "TEACHING ASPECTS OF ALTERNATIVE DISPUTE RESOLUTION TO CANDIDATE ATTORNEYS IN SOUTH AFRICA." Journal of Commonwealth Law and Legal Education 4, no. 2 (October 2006): 157–70. http://dx.doi.org/10.1080/14760400601115176.
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Gordon, Diana R. "Deepening democracy through community dispute resolution: problems and prospects in South Africa and Chile." Contemporary Justice Review 14, no. 3 (September 2011): 291–305. http://dx.doi.org/10.1080/10282580.2011.589667.
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Schlemmer, Engela C. "Dispute Settlement in Investment-Related Matters: South Africa and the BRICS." AJIL Unbound 112 (2018): 212–16. http://dx.doi.org/10.1017/aju.2018.63.
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Many states use investment treaties to spur economic development by granting legal protections to foreign investors and providing for direct enforcement before international arbitral tribunals. Yet South Africa has taken a different course. As explained below, South Africa originally signed onto a number of investment treaties despite barely considering how the resulting obligations would affect its constitutional commitments and the authority of its domestic courts. After the shock of losing its first two treaty-based investment disputes, the country shifted from avidly entering into bilateral investment treaties (BITs) to opposing BITs absent compelling economic and political reasons to conclude them. Today South Africa seeks to replace investment treaties and investor-state arbitration with protections under domestic legislation, along with mediation and dispute resolution before domestic courts. In this essay, I describe this shift and explore three difficult and yet-to-be-resolved questions that it presents: (1) Will foreign investors still be able to rely on protections under international law when bringing domestic cases? (2) If so, will the South African Constitution, as a matter of domestic law, displace any relevant commitments under international law? And (3) is the new South African approach consistent with international law?
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Diedrich, Frank. "The TRC’s Balancing of Law, Religion and Economics in South Africa – A Model for Alternative Dispute Resolution?" Verfassung in Recht und Übersee 40, no. 1 (2007): 5–22. http://dx.doi.org/10.5771/0506-7286-2007-1-5.
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Crous, AJ. "Keuringspanele ("Screening Panels") as Gepaste Geskilbeslegtingsmetode ter Oplossing van Mediese Wanpraktyks-geskille." Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad 12, no. 3 (June 26, 2017): 97. http://dx.doi.org/10.17159/1727-3781/2009/v12i3a2735.
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A right only has any value if there is a remedy providing for the acknowledgement and enforcement thereof. An increase in medical malpractice claims can be expected in South Africa in view of the fact that the public is becoming more and more aware of its rights in respect of health services and health care. The public opinion calls for development of dispute resolution proceedings. The fact that the law is not accessible to everyone in South Africa is a matter of concern. High litigation costs, coupled with the time consuming protracted, formal and complicated process, call for a transformation towards an alternative, non-judicial process that is suitable for a particular dispute and apposite to the parties involved. Selection panels, the medical ombudsperson and arbitration clauses incorporated in doctor/patient agreements, are ADR mechanisms that have been proved by American law as suitable for resolution of medical malpractice claims. In this particular article attention is paid to screening panels as pre-trial mechanism with the exclusive purpose to select malpractice disputes, discourage unfounded disputes and to encourage an early settlement in case of a prima facie case.Several objections have been raised by critics in this regard, for instance, a screening panel infringes on: the right of equal protection/the right of access to the courts/the right to a jury trial/the right to a due process as well as on the trias politica doctrine. These so-called infringements are attended to and eventually a positive conclusion regarding screening panels is made: medical screening panels (consisting generally of a medical doctor, a lawyer and a member of public), based on the American experience, is indeed an appropriate dispute resolution method.
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Olivier, Marius, and Avinash Govindjee. "The Inter-Relationship between Administrative Law and Labour Law: Public Sector Employment Perspectives from South Africa." Southern African Public Law 30, no. 2 (December 1, 2017): 319–46. http://dx.doi.org/10.25159/2522-6800/3583.
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The legal position of public sector employees who challenge employment decisions taken by the state or organs of state in its/their capacity as employer in South Africa has long been problematic. Even though at least four judgments by the Constitutional Court of South Africa have considered whether employment-related decisions in the public sector domain do or could amount to administrative action and whether administrative law and/or labour law should be applicable for purposes of dispute resolution, legal uncertainty remains the order of the day due to a combination of factors. The authors assess whether (and to what extent) the rich South African administrative-law jurisprudence remains of importance in relation to the public employment relationship, bearing in mind the applicable legal considerations, including the inter-relatedness, interdependence and indivisibility of the range of applicable fundamental constitutional rights. Considering the debate in other jurisdictions on this issue, the authors develop a paradigm for situating different employment-related disputes as matters to be decided on labour and/or administrative-law principles in South Africa. This requires an appreciation, to the extent relevant, of the unique nature public sector employment relationships and a detailed investigation of the applicable legal sources and precise parameters of the cases already decided in the country. The position of employees deliberately excluded from the scope of labour legislation is analysed, for example, as is the legal position of high-ranking public sector employees. The outcome of the investigation is important for determining the legal principles to be applied in cases involving public sector employees in their employment relationship, and for purposes of determining the question of jurisdiction. Recent cases, for example where the courts have permitted the state, as employer, to review its own disciplinary decision (via a state-appointed chairperson of a disciplinary hearing) on the basis that this amounts to administrative action which is reviewable, are also examined in the light of the uncertainty regarding the precise nature and scope of the review.
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De Jong, M. "Arbitration of family separation issues – a useful adjunct to mediation and the court process." Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad 17, no. 6 (November 14, 2014): 2356. http://dx.doi.org/10.4314/pelj.v17i6.04.
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For over half a century now, section 2(a) of the Arbitration Act 42 of 1965 has prohibited arbitration in respect of matrimonial and related matters. In this article it will be illustrated that this prohibition is clearly incompatible with present-day demands. Today there is a strong tendency in public policy towards alternative dispute resolution processes such as arbitration. As any recommendations that arbitration should be applied to family law disputes must be anchored in an analysis of the specific character of the arbitral remedy, the article begins by giving a broad overview of the nature of arbitration. This is followed by a discussion of the present-day demand for family arbitration, which examines the problems experienced with the adversarial system of litigation in resolving family law disputes, party autonomy, the development of alternative dispute resolution processes such as mediation and arbitration, the special synergy between mediation and arbitration, the success of arbitration in other fields of law and possible forerunners for family arbitration in South Africa. Inherent in the demand for family law arbitration are the many advantages of arbitration, which are also touched upon. Thirdly, current trends in England, Australia, the United States of America, Canada and India are analysed so as to identify a suitable family law arbitration model for South Africa. Special attention is paid to the matters that should be referred to arbitration – for example, should it be confined to matrimonial property and financial disputes or extended to all matters incidental to divorce or family breakdown, including children's issues? Other questions examined include whether family arbitration should comply with substantive law only, who should act as arbitrators, whether family arbitration should be voluntary or compulsory, what the court's role in the family arbitration process should be, and whether family law arbitration should be regulated by the existing Arbitration Act or by a separate statute with specialised rules for family matters. Lastly, it is concluded that although family arbitration will not have universal appeal or common application, it should be encouraged and enforceable for those who choose this private alternative dispute settlement technique to resolve their family disputes.
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Fourie, Elmarie. "CONSTITUTIONAL VALUES, THERAPEUTIC JURISPRUDENCE AND LEGAL EDUCATION IN SOUTH AFRICA: SHAPING OUR LEGAL ORDER." Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad 19 (May 5, 2016): 1. http://dx.doi.org/10.17159/1727-3781/2016/v19i0a732.
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Law schools have a responsibility to remind law students that by studying law they have the power to transform thoughts, policies and lives, and that practising law is not just about financial rewards, but that its greatest reward is contributing to the betterment of society and ultimately to social change. The values and philosophies that law lecturers instil in law students can contribute to the legal order of the future; a legal order that supports a transformative South Africa. A need exists to bring legal education closer to the values enshrined in our Constitution. In addition to an extensive knowledge of legal principles, critical thinking and research skills, law students should critically engage with our constitutional values. The question remains: How do we transform legal education in South Africa? How do we change the way we teach law students? The introduction of concepts such as therapeutic jurisprudence enhanced by our constitutional values will ensure that we deliver graduates that display a commitment to our constitutional vales and an ability to engage critically with these values. It is important to establish a professional legal identity amongst students from their first year as this will assist in the development of a well-rounded graduate that can contribute to the legal order of the future. Letter writing and drafting skills, the value of plain language, moot court activities, alternative dispute resolution and clinical legal education provide opportunities to integrate valuable therapeutic jurisprudence principles into the curriculum and can allow students to critically engage with our constitutional values. By embodying these values they can improve the legal system, shape our legal order and promote progress toward an equal and free democratic society as envisaged by the Constitution.
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Cohen, Tamara, and Letlhogonolo Matee. "Public Servants' Right to Strike in Lesotho, Botswana and South Africa – A Comparative Study." Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad 17, no. 4 (April 11, 2017): 1658. http://dx.doi.org/10.17159/1727-3781/2014/v17i4a2175.
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Restrictions on the rights of public officers to strike are permitted by the Constitutions of Lesotho, Botswana and South Africa, where such limitations are reasonable, necessary and justifiable in a democratic society. The limitation of this right in the context of public servants is endorsed by the ILO in the Freedom of Association Digest of Decisions and Principles which holds that "[t]he right to strike can be restricted or even prohibited in the public service or in essential services in so far as a strike there could cause serious hardship to the national community and provided that these limitations are accompanied by certain compensatory guarantees".[1]Public officers in Lesotho are deprived of the right to join trade unions or to strike, without exception or justification. Furthermore in Lesotho no dispute resolution mechanism exists to effectively facilitate the final resolution of disputes of interest in the public sector.This paper considers whether the limitations imposed on the freedom and right to strike of public officers in Lesotho are in breach of international obligations and are reasonable and justifiable in a free and democratic society committed to the rule of law. In so doing a comparative analysis of the jurisdictions of South Africa and Botswana is undertaken. It concludes that Lesotho is in breach of its obligations as a member state of the ILO and its constitutional commitment to freedom of association and needs to be urgently addressed.
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Spijker, Arda, and Madelene De Jong. "Family Conferencing: Responsibility at Grassroots Level – A Comparative Analysis between the Netherlands and South Africa." Potchefstroom Electronic Law Journal 24 (April 22, 2021): 1–32. http://dx.doi.org/10.17159/1727-3781/2021/v24i0a9325.
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As family group conferencing is gaining world-wide recognition as an alternative dispute resolution process, this article aims to outline the origin and relevance of this process, which promotes solution-finding to family problems by the family themselves and/or the social network and usually results in a plan or agreement that will be implemented collaboratively by the people involved. Although it was originally used in child protection matters, the process is now used for a wide range of problems pertaining to families and individual family members, including divorce matters, the illness or death of a family member, the care of the elderly, family financial problems, bullying, addiction cases, domestic violence and child justice matters. The process is also suitable for application in problems concerning any group, neighbourhood or school. Next, the application of family group conferencing in both the Netherlands and South Africa is first examined and then briefly compared. It appears that family group conferencing through Eigen Kracht in the Netherlands is an established practice which consists of a relatively simple and quick process and yields positive results for families/communities experiencing problems. Recently the Dutch Youth Act of 2015 (Jeugdwet) made legislative provision inter alia for a family group plan to be drafted by parents, in conjunction with next-of-kin or others who are part of the social environment of a youth/juvenile person. On the other hand, although extensive legislative provision is made for family group conferencing by the Children's Act 38 of 2005 in children's court proceedings and by the Child Justice Act 75 of 2008 in the child justice system in South Africa, the process has not yet reached its potential in terms of the implementation of the concept. Lastly, some recommendations are made which mainly aim to contribute to the implementation of the concept in South Africa, in that the model will eventually be fully developed and utilised for the benefit of individuals, children, their families and/or social network.
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Widner, Jennifer. "Courts and Democracy in Postconflict Transitions: A Social Scientist’s Perspective on the African Case." American Journal of International Law 95, no. 1 (January 2001): 64–75. http://dx.doi.org/10.2307/2642037.
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A “second liberation” swept the African continent beginning in 1989. In many places, multiparty elections and a measured optimism gained ground. Yet during the 1990s, the spirit of moderation and tolerance typical of the early independence movements began to fray. The recent armed conflicts of Central and West Africa and the columns of refugees crossing borders have served as a blunt reminder of the fragility of many of the continent’s democratic experiments.In this new era, law plays a central, visible, yet delicate role in many peace settlements and democratic transitions, from South Africa to Ghana. Africa’s courts have been challenged to provide the kinds of basic dispute resolution that lie at the core of what it means to be a “government.” At the same time, Africanjudges are mindful of Learned Hand’s caution in The Spirit of Liberty, taped above a secretary’s desk in Uganda. “Liberty lies in the hearts of men and women,” Hand wrote. “[W]hen it dies there, no constitution, no law, no court can save it; no constitution, no law, no court can even do much to help it.” The success of a postconflict transition will depend, in part, on the role of courts in sustaining a spirit of liberty and tolerance in their societies.
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Selala, Koboro J. "Constitutionalising The Right to Legal Representation at CCMA Arbitration Proceedings: Law Society of the Northern Provinces v Minister of Labour 2013 1 SA 468 (GNP)." Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad 16, no. 4 (May 17, 2017): 396. http://dx.doi.org/10.17159/1727-3781/2013/v16i4a2425.
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Recently, the issue of legal representation at internal disciplinary hearings and CCMA arbitrations has been a fervent topic of labour law discourse in South Africa. While the courts have consistently accepted the common law principle that there is no absolute right to legal representation at tribunals other than courts of law, a study of recent case law reveals that the majority of court judgments seem to be leaning in favour of granting legal representation at disciplinary hearings and CCMA arbitrations than denying it. In the recent case, Law Society of the Northern Provinces v Minister of Labour, the High Court struck down the rule of the CCMA which restricted legal representation at CCMA arbitration as unconstitutional on grounds of irrationality. The High Court considered that the impugned rule was inconsistent with section 3(3)(a) of the Promotion of Administrative Justice Act, which was specifically enacted to give effect to the right to administrative justice entrenched in the Constitution. In so deciding the High Court considered the importance of job security and the possible loss of job by an employee as a serious matter. This case note aims to analyse critically the court’s judgment in Law Society of the Northern Provinces v Minister of Labour and to consider its implications for dispute resolution in South Africa. It is asserted that although the right to legal representation is not absolute at labour proceedings, in light of the court’s decision in Law Society of the Northern Provinces v Minister of Labour it is not easy to identify the circumstances that would provide justification for the infringement of the right at CCMA arbitrations and probably at disciplinary hearings as well. Here, an argument is made suggesting that the court in the Law Society case has taken the right to legal representation too far.
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Ilias, Ibtisam @. Ilyana, Rusni Hassan, Salina Kassim, and Elistina Abu Bakar. "CONSUMER CREDIT GRIEVANCE AND REDRESS MECHANISMS: THE MALAYSIA PERSPECTIVE." UUM Journal of Legal Studies 12, Number 2 (July 5, 2021): 61–88. http://dx.doi.org/10.32890/uumjls2021.12.2.4.
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This study examines the redress mechanisms accessible to aggrieved consumers dealing with various consumer credit providers in Malaysia. The existing legal and institutional framework characterised by the piecemeal approach has led different groups of consumers to varying levels of access, which can be superior or inferior to one another. The study employs a doctrinal legal research methodology in analysing the two alternative dispute resolution bodies, namely, the Ombudsman for Financial Services, and the Tribunal for Consumer Claims. Primary sources of law, namely, the Consumer Protection Act 1999, the Financial Services Act 2013, the Financial Services (Financial Ombudsman Scheme) Regulation 2014, the Hire-Purchase Act 1967, the Moneylenders Act 1951, and the Pawnbrokers Act 1972, are meticulously analysed along with secondary sources of law that principally comprise journal articles. The study reveals disparities in terms of access to cheap and simple redress mechanisms by various categories of consumers who are aggrieved by the actions of credit providers. The position of bank consumers and those entering into credit sale is accounted for, as there are particular ADR bodies established under relevant legislations to hear their respective disputes. On the contrary, the position of those who wish to lodge claims against moneylenders, pawnbrokers or credit companies offering hire-purchase is problematic. Several recommendations are proposed to resolve this opacity inter alia by referring to the approach adopted by South Africa. This study is significant in ensuring fair access to inexpensive and hassle-free dispute resolutions for all financial consumers, irrespective of the nature of their consumer credit transactions.
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Koekemoer, Michel M. "Consumer Complaints And Complaint Forums Employed In The South African Motor Vehicle Service Industry: A Survey Of The Literature." Journal of Applied Business Research (JABR) 30, no. 3 (April 24, 2014): 659. http://dx.doi.org/10.19030/jabr.v30i3.8551.
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<p>A South African consumer who owns a motor vehicle will need to have it serviced at a motor vehicle service dealership. The level of service experienced by consumers is not always satisfactory, leaving the consumer dissatisfied and wanting to complain about the poor service. The complaint forums available to South African consumers can roughly be divided into two categories, namely those established under South African law (which include the National Consumer Tribunal; the National Consumer Commission; the Motor Industry Ombud of South Africa; a consumer court; an alternative dispute resolution agent; and an ordinary court); and other traditional complaint forums (which include complaint websites and complaints made to the dealer directly). When deciding on the most appropriate complaint forum, consumers must consider the following factors: the cost of and time spent on the complaint process; the complexity of the rules and procedures associated with each complaint forum; the effective functioning of each forum; and the relief that the consumer can expect to receive from the complaint forum. This study found that when measured against these factors, consumers are left with few viable complaint forums. The structure and functioning of the existing complaint forums remains far from perfect. However, inroads have been made to improve the current complaint forums. Further improvements will only be achieved through a concerted effort by all the industry players. Such collaboration between them will ensure that South African consumers in the motor vehicle service industry will be ranked amongst the best protected consumers in the world.</p>
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Osman, Fatima. "The Million Rand Question: Does a Civil Marriage Automatically Dissolve the Parties' Customary Marriage?" Potchefstroom Electronic Law Journal 22 (May 20, 2019): 1–25. http://dx.doi.org/10.17159/1727-3781/2019/v22i0a4337.
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In 2016 the Eastern Cape Local Division in Mthata heard a claim by Mrs Winnie Madikezela-Mandela that, amongst other things, her customary marriage to former President Nelson Mandela continued to exist until his death, despite the dissolution of their civil marriage. Not long thereafter, in 2017, former President Jacob Zuma's daughter made headlines by claiming half of her soon-to-be-ex-husband's multimillion-rand estate despite the couple’s having entered into a valid ante-nuptial contract. The claim was that her preceding customary marriage had not been accompanied by an ante-nuptial contract, and therefore the marriage was in community of property. These high-profile cases raise the fundamental legal question: what effect does a civil marriage between parties have on the parties' customary marriage to each other?
Historically the subsequent civil marriage terminated the customary marriage, as such marriages were not legally recognised in South Africa. The Recognition of Customary Marriages Act 120 of 1998 allows for such dual marriages without specifying the consequences thereof. Most commentators have interpreted the provisions to perpetuate the historical position; the civil marriage terminates the customary marriage. While this appears distasteful, the rationale is legal certainty and accords with the recommendations of the South African Law Commission. Furthermore, alternative customary dispute resolution mechanisms are still available to the parties, who are unlikely to suffer prejudice under the interpretation. In addition, given the social reality in which dual marriages are conducted and how they are perceived by parties, parties should be allowed to conclude an ante-nuptial contract after their customary marriage but before their civil marriage to regulate the proprietary consequences of their marriage.
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Millard, D., and B. Kuschke. "Transparency, trust and security: An evaluation of the insurer's precontractual duties." Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad 17, no. 6 (November 14, 2014): 2412. http://dx.doi.org/10.4314/pelj.v17i6.05.
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Transparency in insurance law attaches to the rights and duties of the parties, the relationships between insurers, insurance intermediaries such as agents and brokers, insurance supervisory law and insurance dispute resolution procedures. Regarding the rights and duties of the insurer and the prospective policyholder, it requires insurers to disclose precontractual information in a timely manner that is clear, understandable, legible and unambiguous. Transparency as a value is incredibly important in insurance contracts. This contribution focuses exclusively on the insurer's duty of disclosure during precontractual negotiations. Although the insured's duty of disclosure has enjoyed more attention in the past, the duty clearly applies to the insurance proposer as well as the insurer. The purpose of this contribution is to evaluate the nature and extent of the insurer's transparency duties as informed by both common and statutory laws.The insurer's duty is derived primarily from the statutory rights of access to information in accordance with the provisions of the Constitution of the Republic of South Africa and the Promotion of Access to Information Act. It is furthermore supported by specific insurance consumer protection law found in the detailed provisions on mandatory disclosures in the Financial Advisory and Intermediary Services Act, the Long-term Insurance Act, the Short-term Insurance Act and, finally, the Policyholder Protection Rules issued in accordance with these acts. Strict rules on advertising can be found in the General Code of Conduct issued under the FAIS Act.The Act furthermore specifically targets the activities of insurance intermediaries in precontractual disclosures. The fact that insurance products and services have been exempted from the scope of the Consumer Protection Act from 28 February 2014 should not diminish the insured's right to rely on universal consumer protection principles as envisaged by South African insurance legislation. The insurer's duty to disclose is in the last instance also derived from the common law duty not to make misrepresentations by commission or omission. When negotiating an insurance contract, the insurer's duty to speak is not based on a general requirement of bona fides, but is recognised as an ex lege duty due to the involuntary reliance of the prospective insured on information supplied by insurers in the market. A lack of transparency should lead to the insurer's accountability. A failure to disclose material information or a disclosure of false information that goes to the root of the matter and that induces the prospective policyholder to buy the insurance product is recognised as an actionable misrepresentation. Statutory provisions do not diminish the common-law duty not to make misrepresentations, but provide details of the nature and extent of the information duty to provide clarity and legal certainty in the determination of the standards of transparency required in law. In addition, statutes provide for enforcement actions by regulators, orders that could affect the licence of the insurer and provide for punishable offences and penalties. In terms of common law, a misrepresentation by omission or commission renders the insurance contract wholly or in part voidable. The policyholder may decide to rescind the contract and claim restitution. He may also, in conjunction with rescission, or as an alternative when deciding to maintain the contract, claim delictual damages or even constitutional damages when judged by a court of law as appropriate relief. Statutory remedies include a monetary award by the Insurance Ombud. Even though such an award is capped at R800 000, it is submitted that it is preferred to a civil law damages claim.
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Imiera, Prince Pius. "Integrating Alternative Dispute Resolution into South African Criminal Jurisprudence: An Urgent Need for Law Reforms." Politeia 38, no. 2 (December 31, 2019). http://dx.doi.org/10.25159/2663-6689/4611.
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This article argues for the inclusion of alternative dispute resolution (ADR) into the criminal justice administration of South Africa, which will ultimately result in the comprehensive legal transformation of the country’s justice system. Non-traditional dispute resolution processes, which fall within the context of ADR, are globally accepted and have been implemented in different dispute contestations. The argument whether ADR should be applied in a criminal justice context, poses normative questions concerning the function of the justice system, and sociological questions concerning the nature of criminals and crimes. Crime rates in South Africa are high and the criminal justice system may be unable to cope with the floodgates of formal litigation. In this context the article argues for the integration of ADR into the South African criminal justice system. Two major research problems are addressed through reviewing existing literature and doing desktop research. The first aspect concerns the integration of ADR into the South African criminal justice system with a view to effecting law reforms. Second, the question regarding the roles of traditional rulers in resolving criminal disputes is explored. The conclusions reached relate to the need for law reformation in South Africa, particularly in respect of the integration of ADR into criminal jurisprudence, in order to become aligned with other jurisdictions the world over.
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Rautenbach, Christa, and Navilla Somaru. "The Indian Approach to Criminal Justice: The Role of Traditional Courts as Alternative Dispute Resolution Mechanisms." Comparative and International Law Journal of Southern Africa 53, no. 2 (January 26, 2021). http://dx.doi.org/10.25159/2522-3062/7636.
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South Africa and India both struggle with a high crime rate and case backlogs in the mainstream courts. Both countries have a pluralistic system where state law consists of formal law and customary law. Both have mainstream and traditional courts following dispute resolution based on traditional values and principles. The panchayat system in India is comparable to traditional authorities in South Africa. The panchayat system performs judicial-like functions, and traditional courts operate at informal (nyaya panchayat) and formal (gram nyayalayas) levels in the rural areas. The lok adalat system is an alternative dispute resolution mechanism employed by the Indian government to address the high crime rate and court backlogs. Statistics reveal that these alternative justice mechanisms based on traditional values and principles have successfully cleared some backlogs. South Africa is in the process of adopting legislation on traditional courts, and it is envisaged that the Traditional Courts Bill [B1-2017] will soon be transformed into law. In reconsidering traditional courts’ role in the South African criminal justice system, it is worthwhile to explore what the Indian government has been doing in this regard. The main aim is to analyse the Indian approach to criminal justice regarding dispute resolution examples based on traditional laws, namely the panchayat system (nyaya panchayats and gram nyayalayas) and also lok adalats in a comparative context.
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Thaldar, Donrich W., Marietjie Botes, and Annelize Nienaber. "South Africa’s new standard material transfer agreement: proposals for improvement and pointers for implementation." BMC Medical Ethics 21, no. 1 (September 3, 2020). http://dx.doi.org/10.1186/s12910-020-00526-x.
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Abstract Background Whenever South African (SA) research institutions share human biological material and associated data for health research or clinical trials they are legally compelled to have a material transfer agreement (MTA) in place that uses as framework the standard MTA newly gazetted by the South African Minister of Health (SA MTA). Main body The article offers a legal analysis of the SA MTA and focuses on its substantive fit with the broader legal environment in South Africa, and the clarity and practicality of its terms. The following problematic aspects of the SA MTA are highlighted: (a) Where only data and no human biological material are transferred, the SA MTA does not apply, leaving a lacuna; (b) Health Research Ethics Committees are required to be parties to a MTA despite it being outside their legal mandate and undermining their oversight function; (c) the SA MTA’s consent provisions are not aligned with extant law; and, similarly, (d) its provision on donor ownership is misaligned with extant law; (e) its creation of fictitious performance can only cause frustration on the part of an injured party; (f) its benefit-sharing provision is vague and will have little practical effect; (g) its dispute-resolution provisions fail to adequately protect South African research institutions and research participants; (h) it fails to provide substantive guidance regarding intellectual property as its provisions relating to intellectual property may cause practical problems; and, finally, (i) its data privacy provision is insufficiently specific, is overbroad, and fails to provide terms that in general would facilitate the international sharing of human biological material and associated data in terms of existing privacy law. Conclusions While some of the problematic aspects of the SA MTA are intricate and require consultative processes with stakeholders and others, to develop comprehensive solutions, most of the problematic aspects can be resolved immediately through amendments by the South African Minister of Health. The formulation of such amendments is proposed and, where possible, interim measures are suggested that may ameliorate the problems presented by the SA MTA.
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Rautenbach, Christa. "Editorial." Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad 18, no. 2 (March 31, 2016). http://dx.doi.org/10.17159/1727-3781/2015/v18i2a495.
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This issue of PER consists of 11 articles and one case note dealing with a wide range of topics in the global legal landscape. Monray Botha analyses the responsibility of South African companies towards their employees for achieving social justice in the corporate world. Fawzia Cassim examines how identity thieves use the personal information of individuals to commit identity fraud and theft, and looks at legislative solutions introduced in South Africa, the United States of America, the United Kingdom and India to combat identity theft crimes. Howard Chitimira discusses the regulation of market manipulation in Australia with the purpose of assessing if lessons can be learnt from it for South Africa. Leentjie de Jong deals with parenting coordination, a new alternative dispute resolution process to alleviate the negative effects of high-conflict co-parenting cases on the South African court system and the children of divorce. Yvonne Donders investigates the cultural dimensions of the right to health endorsed by several treaty provisions and treaty monitoring bodies and comes to the conclusion that states can implement the right to the enjoyment of the highest attainable standard of health in a culturally sensitive and responsible way by consulting cultural communities and individuals. Joel Modiri reflects on the development of a radical democratic political theory that shifts analytical and conceptual registers in which the relationship between law and poverty is conventionally addressed and argues for the creation of a radical alternative that defatalizes the present. Stephen Peté's unconventional historical examination of the Barberton Prison Complex during the 1980s is published in two parts. The first part deals with the deaths of three prisoners and the injury of many others during a day of violence at the Barberton prison farm on 29 December 1982 and the second part examines a string of violent incidents which occurred within the Barberton Prison Complex during the course of 1983, leading to nine inmate deaths. Robbie Robinson raises the question of whether or not the constitutionally entrenched right to make decisions concerning reproduction may be limited, as the continued existence of the State may ultimately be jeopardised if the size of the population is not limited to the available levels of subsistence. Olufemi Soyejudiscusses the incapacity of low-income countries to realise the Millennium Development Goals and seeks to make a case for the adoption of a development-driven approach to law as a linchpin for the post-2015 development agenda. Carmel van Niekerk considers the constitutionality of section 294 of the Children's Act 38 of 2005, which permits commissioning parents to engage in surrogacy arrangements only in instances where they are able to provide a genetic link to their future offspring. In the only case note, Salona Lutchman evaluates the implications ofSS v Litako 2014 SACR 431 (SCA): A Clarification on Extra Curial Statements and Hearsay.