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Proposals for
a Dharmesh Bhula and
Adelene Africa Occasional Paper Series 3-95 Foreword Allowing the
COMMUNITY Many arguments have been presented for the need to establish a basic and simple mechanism which provides access to justice for ordinary, underprivileged South Africans. We have moved from organising people's power structures in the mid-1980's, to launching the paralegal movement later in the same decade, to the possibility of creating a "type" of community court in the new dispensation. Perhaps we are just talking at the moment of a "type" and not a model: many voices are currently making a contribution to what should constitute a model for community courts. Community activists affiliated with the South African National Civic Organisation (SANCO), traditional academic intellectuals and legal practitioners are all voicing their views. What these voices recognise is that there is a need to establish community courts which create a model of (state) justice dispensation that reconciles African (rural and urban) traditions with more Western traditions (epitomised by Roman Dutch Law) of justice. The discussion about community courts attempts to reconcile different legal traditions whilst providing a model of simple access to justice to the majority of the population. The two articles included in this paper are part of a new generation (or emerging voices) who want to make a contribution to the debate on community courts. Dharmesh Bhula and Adelene Africa, Masters and Honours students at the Institute of Criminology, provide interesting and innovative arguments for the regulation and establishment of community courts. In their distinctive and critical way the contributors provide different arguments for and against the launching of community courts. What makes their contribution valuable, is the genuine attempts and honesty to provide a solution to the crisis of legitimacy of South Africa's justice system and in particular to the lack of access to justice in the country. The reader is invited to engage in arguments with the three writers so that we can all "make" the community and then "establish" the court. Daniel Nina |
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1. Introduction Access to justice has, and continues to be, a serious problem in South Africa as in many other countries. In recent years the state has acknowledged that there are problems related to access to justice and has therefore taken steps in an attempt to remedy the existing system. For example the promulgation of the Small Claims Court Act 61 of 1984 and the Short Process Courts and Mediation in Certain Civil Cases Act 103 of 1991 shows an awareness by the state that access to justice is not satisfactory and new measures are needed. The most notable defect of the existing system of justice is that the majority of South Africans were (and still are) alienated from the court system due to the apartheid nature of the courts combined together with language and cultural differences. As South Africa enters a new democratic dispensation under the government of National Unity, attempts must be made to ensure that access to justice is a reality rather than a fiction for the majority of South Africans. Indeed this is no small task but there does exist the possibility of giving established systems of dispute resolution a degree of official recognition. As with all alternative remedies to a problem each should be carefully analysed so as to formulate the best practical solution. The aim of this paper will be to examine the feasibility of granting established dispute resolution mechanisms a degree of official recognition by developing an officially recognised system of community courts. This will necessarily entail a brief historical outline of popular dispute resolution mechanisms, their advantages and disadvantages as well as proposals for a future constitutional, democratic South Africa. 2. Informal Justice1 Ever since the arrival of the Europeans in South Africa "...a variety of legal modes have co-existed..."2 with the central judicial system. This was due to both practical and ideological considerations. Practical in the sense that for the majority of South Africans the present legal system was inaccessible due to financial constraints, language and cultural barriers. The ideological consideration was that the existing legal system was perceived as merely another organ of the apartheid state and therefore had no legitimacy. As a result a number of informal dispute resolution forums sprung up with a twofold purpose. Firstly, such structures were aimed to "prefigure a legal system for a future South Africa"3 in that they would serve to lead by example and build a future with which the people could identify4. In other words these structures served to create a sense of solidarity among the oppressed people as well as creating a political consciousness of their plight. It is beyond the scope of this paper to dwell in detail on the historical development of informal justice, but it must be said that as state repression increased5 these informal structures subsequently became more aggressive in nature and as youth involvement increased a "persecutory impulse ... (became) ... prevalent"6. Consequently these structures came to be viewed with a great deal of disapproval both by the state and even the elders within these communities. This was compounded by the unfavourable media reports on the excesses perpetrated by the youth, evidenced by their severe sentencing. Despite the turmoil of the 1980s these informal structures were not terminated and their "... survival - and, indeed, regeneration - provides a useful illustration of how complex ... its sphere of authority"7. Their survival seems to indicate that there is still a need for this informal justice and the merits and disadvantages of these structures will be examined before proposals for the future are suggested. 3. Merits of Informal Justice It must be stressed from the outset that although these informal structures took various forms their aims and operations were remarkably similar and therefore will be analysed as a composite entity, disregarding minor regional variations. The merits of these structures will now be analysed under various classifications: a) Accessibility The most notable feature of these informal structures is that they are very accessible to members of the community over which the particular structure has jurisdiction. Accessibility refers to many factors and with regard to informal structures, means, that to the concerned people these informal courts are located within the community, close to where they live and they therefore do not have to travel great distances to avail themselves of the services of these informal courts. Another facet of accessibility is that these informal courts normally sit in the evenings and at weekends thereby causing minimum inconvenience to the participants. Probably the most striking feature of these informal courts is that they cost very little, as those who serve on these informal structures are volunteers8. Also in relation to accessibility is the fact that the proceedings are very informal, conducted in the local language of the participants and above all the values and customs of the community are generally adhered to. This marks a definite contrast to the existing state legal system where court proceedings are culturally alienating and many accused have to rely on interpreters "...whose accuracy cannot be guaranteed, to the detriment of the accused"9. These are factors which are considered to be important by those who decide to utilise these informal structures rather than the state structure. b) Practice of the Informal Structures The aims of these informal structures differs considerably from that of the state in that the emphasis here is on reconciliation rather than punishment. This can be attributed to the fact that within African societies "...legal proceedings are community affairs, aimed at reconciling the parties and restoring harmonious relations within the community"10. The dispute resolution process therefore tends to focus more on the relationship between the parties than the actual event complained of because the underlying objective is to restore harmony within the community. This is not to say that the actual event is ignored and normally the parties are, as far as possible, restored to the status quo ante. This means that if possible stolen goods will have to be returned to the aggrieved party. Akin to the state structure, the normal rules of natural justice as prescribed by the state are observed, particularly the audi alteram partem rule except that here the field of enquiry is not limited to the legal issue raised by the parties. More often than not, the members of the informal structures consider the history of the parties prior to the conflict. This means that the judge's role is more pronounced than those presiding in a formal court, i.e. the informal court proceedings are inquisitorial rather than adversarial in nature which has its many advantages. Paramount here is that parental respect is adhered to and proceedings remain informal. This could possibly be due to the fact that "... the ideological foundation of the inquisitorial procedure can described as parental"11. The lack of formality also has the advantage of allowing community participation and once both parties to the dispute are heard, the issue is discussed in open debate permitting various views to be aired and the community members may also question the parties on any aspect that may be considered relevant to the dispute. However, any solution reached depends ultimately on consensus between the conflicting parties12. Often this may include consensus on the issue of sentencing but more often than not, this is a collectively reached decision as the ultimate objective is to restore harmony within the community by effecting a compromise13. However, it must be noted that sentencing is not analogous to that adopted by the formal state structures and this will now be discussed in more detail. c) Sentencing As with the final verdict, the appropriate sentence is determined in accordance with the majority vote of the tribunal and sentences are implemented with the aim of reconciliation and re-education14. It cannot be denied that in the past, whilst the youth involvement in informal structures persisted, sentences were harsh and inappropriate but this did result in the elders withdrawing their support from such youth dominated structures with the effect that such punitive structures lost legitimacy within the community they served15. These excesses should not however, blind one to the merits of these informal structures and it should also be contextualised within the political climate of that period (the 1980s) which no doubt had an influence on the youth organisations and this eventually filtered down into their informal court structures. Sentencing did not however, mean imprisonment, and depending on the crime, entailed varying degrees of community work ranging from cleaning the neighbour's yards to assisting with distribution of pamphlets. In certain instances however, the wrongdoer is obliged to pay the victim the equivalent of the goods stolen which cannot be returned. In cases of assault the aggressor is often compelled to pay the medical expenses incurred by the victim16. For many township residents, the state penal system of imprisoning offenders is regarded as not being very rehabilitative since they feel that imprisonment only serves to worsen the characteristics of the individual rather than to reform him/her17. Another factor is that many feel that the likelihood of African persons being sent to prison is much higher than that of other races, i.e. that there are racial impropriety regarding state imprisonment procedures18. Given these mixed emotions regarding imprisonment it seems apparent that for most township residents, imprisonment is not a viable solution - and considering the overcrowding in existing state prisons this is not an entirely bad assessment. Nonetheless, most township residents concede that in certain circumstances such as crimes of rape or murder19, the state system is best equipped to deal with such offenders and this could be interpreted as an implicit endorsement of imprisonment for those crimes. Indeed most informal court structures within the townships acknowledge that they are unwilling to resolve certain disputes and this will now be analysed under the heading of jurisdiction. d) Jurisdiction Generally the informal court structures limit themselves to civil disputes only but do hear a limited number of criminal matters. However, as already stated most of these informal courts are not willing to hear disputes involving serious criminal offences such as murder or rape. Research has shown that township residents do tend to prefer that the state deal with such offences19. There does however appear to be a tendency to adjudicate disputes involving burglary and petty theft and often the informal courts strive to determine why the perpetrator committed theft with the result that social factors are also considered, both in attempting to solve the dispute as well as in formulating a proper sentence21. Apart from civil and limited criminal jurisdiction the informal court structures tend to shy away from domestic disputes as it is felt that family members (including extended family) are better equipped to solve the matter and it also has the advantage that the dispute is kept relatively confidential. Failing this the informal courts will attempt to resolve the dispute but many still feel that a social worker would be more qualified to deal with the matter. Considering all these advantages when viewed from the perspective of the community members, it is not surprising that they regard these informal structures as legitimate and accessible. That is not to say that there are inherent problems with such informal dispute resolution mechanisms and these problems or disadvantages will now be discussed. 4. Disadvantages of Informal Court Structures There are disadvantages common to most informal court structures and evidence of this can be found in the history of these structures in South Africa. As a result of the turmoils of the 1980s, most of these informal structures have come to be associated with certain evils e.g. excessive punishments such as "necklacing". This paper will not analyse these evils in great detail as recent research22 suggests that most of these have been overcome as the elders once again preside over and control these informal structures. What is of importance at present is to examine defects that still persist since it these defects that have to be ironed out in attempting to formulate a recognised system of informal court structures. These existing defects will now be analysed under various classifications: a) Lack of Objectivity The most vociferous objection to these informal court structures is that they lack objectivity since the arbiters of the dispute become enmeshed within the dispute, increasing the risk of personal biases and prejudices proliferating the proceedings. There is some validity to this argument given the history of informal court structures but it must be remembered that the inquisitorial system followed by these structures is the same as that followed in other Western legal systems. One need not even venture out of South Africa's boundaries to evidence this and the increasing use of arbitration and mediation or a combination of both (especially within the labour law context) bears witness to this23. It must also be remembered that even within the adversarial system of justice there is the possibility of bias and prejudice infiltrating the judge's views and the several executive minded decisions24 handed down by the South African courts is evidence of this phenomenon. Furthermore, the decisions handed down by these informal court structures are collective in nature and function according to majority vote25 which ensures a degree of accountability not evident in the state legal system. b) Potential for Abuse Functioning according to majority vote has the potential that certain groups will dominate the process with the result that "power and patronage...may accumulate...in the hands of a small elite..." 26 who will then dominate the informal system and dispense justice according to their beliefs. Although there is validity to this argument it is a problem that can be overcome. Regular democratic elections within these communities will help to "...ensure that genuinely trusted community leaders are elected and their performance monitored"27. The history of these informal courts dominated by the youth demonstrates the success that such a proposal may have. For example, once the youth courts became persecutory they lost support and legitimacy within the community and there appears to be no logical reason why a similar situation could not prevail in the event of a powerful, albeit unpopular, group dominating the informal court structure system. c) Effectiveness of Informal Courts' Sanctions A real problem associated with these informal court structures is that they rely entirely on community ethics to enforce their sanctions. In effect this means that for any court sanction to be effective the litigant must be a member of that community or closely affiliated to it28. Since the aims of these informal court structures is primarily to maintain harmonious relations among inhabitants, if the litigant is not a local inhabitant, how is the sanction to be enforced? Perhaps the most obvious solution to this is found in the whole concept of community ethics. It could be suggested that if a litigant fails to honour a certain sanction s/he will not be welcome in the community and the entire community should disassociate themselves from that individual, i.e. a policy of social ostracism. Coupled to this the community member who allowed that individual to reside within the community should also be warned against the repetition of allowing persons of dubious character within the community again. Another alternative, working on the assumption that these informal court structures are given official recognition, is that if the offender's place of employment is known, a garnishee order could be issued against that individual to compel him/her to pay a fine to the community court. d) Gender Discrimination and Human Rights Informal court structures have been criticised for abusing the human rights of individuals as well as for enforcing gender discrimination. Whilst there is an element of truth to the former allegation it must be noted that the excessive sentences imposed by these informal court structures appears to have been the exception rather than the norm and to equate necklacing with popular justice is a gross distortion. Having survived the political upheaval of the 1980s the existing informal court structures are once again functioning as before and are once again dominated by the elders with the result that sentences are more moderate but lashings are still administered but mainly to the youth, with parental consent29. However, with the Interim Constitution now in force and the inevitability of a final Constitution these policies will have to be reconsidered and it will be necessary for these informal court structures to abide by the rights entrenched in Chapter 3 of the present constitution - the Bill of Rights chapter. With regard to the allegation of gender discrimination there appears to have been a distortion of reality. It was only in the application of indigenous African law that discrimination was observed. In the informal court structures no discrimination is practised and all members of the community are free to participate and there are both male and female adjudicators in these informal justice structures. Under certain circumstances female adjudicators are required, particularly if the nature of the compliant is of a delicate, feminine nature30. 5. Proposals for the Future Having analysed the merits and disadvantages of informal court structures the important question that remains to be answered is what to do with these structures in a new South Africa. Although the ideological significance has now disappeared to the extent that the state is no longer viewed as illegitimate, there still remains the unsolved issue of access to justice. It is evident that for the majority of South Africans the existing state legal system is still culturally and intellectually alienating. Considering the state's limited ability to effectively deal with these issues and noting the success of informal court structures (despite historical disasters), it would be both impractical and absurd to ignore the possibility of granting these informal court structures limited official recognition and support. An attempt will now be made to suggest what can be done in the near future regarding these informal mechanisms of dispute resolution. 6. Official Recognition and Funding From the above analysis it is evident that until the state can discover new methods of making access to justice a reality rather than a myth, these informal court structures should be retained. This immediately raises the problem of how this is to be done and it is suggested that rather than attempting to incorporate these structures within the existing legal system, these structures should continue to operate but under state regulation. The state should grant these informal court structures official recognition and this could be done on a geographical basis taking into account important regional variations. Official recognition in this context means that, like the Small Claims Court, these structures will work independently with their own rules and procedures but under the watchful eye of the organs of the state. This could be done by passing an Act of Parliament establishing Community Courts in the same manner as that in which the Small Claims Courts were established. The rules and procedures of each geographical community court will have to be decided through intensive consultation and negotiation with existing informal court structure participants. Moreover, civil and criminal jurisdiction will have to be clearly defined as well as the courts' powers with regard to non-residents, e.g. the power to issue garnishee orders. Similar to the Small Claims Court there should be an established procedure that people can use to avail themselves of the services of the court including the requirement that some administrative forms be completed by potential litigants. It could be said that this is inappropriate considering that most township residents are illiterate but one must not lose sight of the fact that this will hopefully be remedied in the future. Until then use of the existing expertise and knowledge of the universities and schools can be utilised. For example, a course could be introduced into the current LLB (Bachelor of Laws) curriculum requiring students to participate actively in community courts by educating community members on their rights and interests as protected by the constitution. This could be implemented following the example of the University of the Western Cape where legal aid is offered on a credit basis meaning that law students provide legal advice to the public and their performance is rated. Introducing a similar course but in relation to community courts will allow students to assist township residents as well as allowing the students to learn and experience more about their fellow South Africans. Senior school students could also participate in assisting with the completion of forms and other administrative details. With regard to the financing of these courts it is apparent that the state is under considerable financial pressure with its Reconstruction and Development Programme and therefore finance will not be readily available. The courts could be organised in a manner that they are self-sufficient in that all those wishing to use the courts will have to pay a minimum fee. If they are unable to afford the minimum fee they should render payment in the form of services such as assisting in the cleaning and general maintenance of the court buildings. There are many skills among township residents and these should be utilised for example, by a carpenter repairing wooden benches in lieu of payment of the prescribed minimum fee. Undoubtedly, the state will also have to provide a certain amount of funding but other funding can surely be obtained from overseas donors who regularly finance legal aid clinics and they should be willing to finance community courts as well. Apart from foreign funding local funding can be obtained through utilisation of the "...Fidelity Fund into which is paid interest on clients' money in attorneys' trust accounts31". Local institutions could also be encouraged to contribute towards the functioning and establishment of community courts. Despite this limited formalism what should be avoided at all costs is the domination of Western legal concepts to the extent that local conditions and cultures are ignored or surpassed. The very success of dispute resolution in these courts will depend almost entirely on what the community perceives as just and equitable in the circumstances of a particular case as it is the flexibility and simplicity of this informal justice that contributes to its success. Retention of the inquisitorial procedure should also be maintained and legal representation should not be permitted as is the case in the Small Claims Court32. 7. Conclusion For justice to be more accessible to the majority of South Africans, recognition of the informal justice structures is necessary but should not have the effect that people once more feel alienated from proceedings. Recognition would also serve to give these informal structures greater legitimacy among the people and they would not have to fear state reprisals as before. Although state funding should be forthcoming, this is not a necessary prerequisite as these structures have survived for years and have been conducted on a voluntary basis but it is time that the state takes on responsibility for a hitherto neglected segment of the population. Granting informal township court structures official recognition would be a positive step in the right direction and would curb the potential for abuse that is ever present in any system of dispute resolution. Footnotes 1: Informal justice is used instead of popular justice due to the fact that many of the conflict resolution mechanisms that exist create a "legal order" that is in many respects a reproduction of state legality albeit at a local level. 2: D. Nina "Popular Justice in the New South Africa: From People's Courts to Community Courts in Alexandra" at 4-5. 3: B. Grant & P.J. Schwikkard "Peoples' Courts?" at 308. 4: J. Allison "In Search of Revolutionary Justice in South Africa" at 413. 5: Evidenced by the state's conviction of many of the alleged organisers of people's courts. For example see the cases of S v Zwane (Supreme Court of South Africa WLD Case No. 50/87) and S v Mayekiso (Supreme Court of South Africa WLD Case No. 115/87). 6: W. Schärf "People's Justice" in SASH March l988 at 22. 7: S. Burman & W. Schärf "Creating People's Justice: Street Communities and People's Courts in a South African City" at 732. 8: W. Schärf "Popular Justice: True Judgement by One's Peers" in Supplement to the Weekly Mail & Guardian. 9: B. Grant & P.J. Schwikkard op. cit. note 5 at 307. 10: M. Baphela "The People's Court in a Customary Law Perspective"(unpublished paper) at 2. 11: E. van der Merwe "Accusatorial and Inquisitorial Procedures and Restricted and Free Systems of Evidence" at 178. 12: J. Hund & M. Kotu-Rammpopo "Justice in a South African Township: The sociology of Makgotla" at 186-187. 13: Ibid. 14: B. Grant & P.J. Schwikkard op. cit. note 5 at 310. 15: "The role of People's Courts in transitions" at 172-174. 16: J. Seekings "The Revival of People's Courts: Informal Justice in Transitional South Africa" at 198. 17: D. Bhula, Unpublished Interview with Sipho Citabatwa, Guguletu Street Committee Activist (13 April 1995). 18: D. Nina & S. Stavrou "Research on Perceptions of Justice : Interaction Between State Justice and Popular Justice" at 13-14. 19: Ibid. 20: Ibid. 21: D. Bhula, Unpublished Interview (13 April 1995). In interview with Sipho Citabatwa, Guguletu Street Committee Activist, he explained that in one case a teenager admitted to theft but when questioned as to motive, the teenager replied that his parents were not giving him any money. The parents were then summoned and upon failing to resolve the dispute the case was referred to a social worker who was deemed more appropriate to deal with the case. 22: See D. Nina op.cit. note 20 and W. Schärf op. cit. note 10. 23: H. van der Merwe with M. Mbebe "Informal Justice: The Alexandra Justice Centre and the Future of Interpersonal Dispute Resolution" at 49-52. 24: For example see: Minister of Interior v Lockhat 1961 (2) SA 587 (A) and S v Adams 1979 (4) SA 793 (T). 25: S Burman & W. Schärf op. cit. note 9 at 738. 26: S. Burman "The role of Street Committees : Continuing South Africa's practice of Alternative Justice" at 164. 27: Ibid 28: J. Seekings op. cit. note 18 at 198. 29: D. Bhula, Unpublished Interview with Sipho Citabatwa, Guguletu Street Committee Activist. 30: M. Baphela op. cit. note 12 at 12-13. 32: G. Budlender "The Accessibility of Administrative Justice" at 130. Although the proposal was made in the context of providing finance for the establishment of Administrative Appeal Tribunals, there is no reason why the Fidelity Fund could not also be used to finance community courts. 33: S.A.S. Strauss. You in the Small Claims Court at 3-4. Bibliography 1.) J. Allison "In Search of Revolutionary Justice in South Africa" in International Journal of Sociology vol. 18 1990. 2.) M. Baphela "The People's Court in a Customary Law Perspective' (Unpublished Paper). 3.) D. Bhula, Unpublished Interview with Sipho Citabatwa, Guguletu Street Committee Activist (13 April 1995). 4.) S. Burman "The role of Street Committees : Continuing South Africa's Practice of Alternative Justice" in H. Corder (ed.) Democracy and the Judiciary (IDASA, Cape Town 1989). 5.) S. Burman & W. Schärf "Creating People's Justice : Street Communities and People's Courts in a South African City" in Law and Society Review vol. 24 1990. 6.) B. Grant & P.J. Schwikkard "People's Courts?" in SAJHR vol. 7 1991, 7.) J. Hund & M. Kotu-Rammpopo "Justice in a South African Township: The Sociology of Makgotla" in XVI CILSA 1983. 8.) E. van der Merwe "Accusatorial and Inquisitorial Procedures and Restricted and Free Systems of Evidence" in AJGM Sanders (ed.) Southern Africa in Need of Law Reform (Butterworths, Durban 1981). 9.) H. van der Merwe & M. Mbebe "Informal Justice : The Alexandra Justice Centre and the Future of Impersonal Dispute Resolution" (Working Paper 21, CALS 1994). 10.) D. Nina "Popular Justice in the "New South Africa : From People's Courts to Community Courts in Alexandra" (Occasional Paper 15 CALS 1992). 11.) D. Nina & S. Stavrou "Research on Perceptions of Justice : Interaction between State Justice and Popular Justice" (CSDS Working Paper No. 9, Durban 1993). 12.) N.D. Oram "Grass Roots Justice: Village Courts in Papua New Guinea" in W. Clifford (ed.) Innovations in Criminal Justice in Asia and the Pacific (Australian Institute of Criminology, Canberra 1979). 13.) W. Schärf "People's Justice" in SASH March 1988. 14.) W. Schärf "Popular Justice: True Judgement by One's Peers" in Supplement to the Weekly Mail & Guardian March 1994. 15.) W. Schärf "The Role of People's Courts in Transitions" in H. Corder (ed.) Democracy and the Judiciary (IDASA, Cape Town 1989). 16.) J. Seekings "The revival of Peoples' Courts: Informal Justice in Transitional South Africa" in G. Moss & I. Obery (ed.) South African Review 6 (Ravan Press, Braamfontein 1992). 17.) S.A. Strauss You in the Small Claims Court (2 ed.) (Juta & Co. Cape Town 1990). |
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Proposal for a National Model of Community Courts The purpose of this paper is to outline a proposal for a national model of community courts. It contextualises the concept of community courts as a form of popular justice, considers the benefits of a justice system based in the community, and outlines a model of community courts which could inform policy. Introduction The elections of 1994 heralded a new era in the South African socio-political arena. In striving to implement and uphold the principles of democracy, each South African was endowed with a franchise and with the opportunity to exercise this right. This historic dawning of the 'new South Africa' proved to be the turning point for the majority of South Africans who had previously been excluded from fully participating in the social arena. The crisis of legitimacy which the Apartheid regime had suffered has become a thing of the past and the government of national unity is striving to implement the principles of democracy which it is founded on. Justice in Apartheid South Africa The area of law and justice has in the past borne testimony to racial discrimination and injustice. The state justice system was primarily used to entrench Apartheid and as a result a large majority of people (particularly Black people) had no faith in it. The development of non-state modes of justice in Black townships catered for the needs of people who were disillusioned by the apartheid justice system (Schärf, 1994a). In claiming and owning their own forms of justice, communities were able to effectively deal with local disputes thereby maintaining the peace and harmony which were not afforded them by state justice mechanisms. Non-state modes of justice or popular justice has been defined as 'the mechanisms of dispute resolution outside of the formal or official state courts or criminal justice system' (Nina, 1993:3 1). There are several structures which developed as manifestations of popular justice viz. street committees, hostel committees, people's courts and disciplinary committees. While these structures may have differed in composition and modus operandi, the essential underlying element was that of trying to maintain some kind of order in the community. This was achieved by encouraging community participation in the proceedings, basing these proceedings on community values and upholding the principles of democracy (Nina, 1993). While these structures developed because of the illegitimacy of the Apartheid government, they also proved to be more accessible to people who felt alienated by the form and content of the criminal justice system. The legal process, the court proceedings, the location of the courts and the law itself were not user-friendly and therefore did not provide the accessible recourse which people needed to deal with their problems. Therefore popular justice mechanisms provided a solution to this dilemma. In Apartheid South Africa a dual system of justice existed - at one level the State maintained law and order via the criminal justice system while at another Black communities were regulating themselves and promoting cohesion, peace and harmony. Justice in the 'New South Africa' As forementioned the South African criminal justice system has for a long time suffered a crisis of legitimacy. The dawning of the 'new South Africa' however, does not imply that this legitimacy has been resolved and that the popular justice system has become obsolete. Cutshall cautions,
Indeed South African criminal law is still firmly entrenched in its Roman-Dutch and English roots and as such remains inaccessible to most people. As with all sectors of post-Apartheid society, the new government has the task of reconstructing and developing the criminal justice system but this in itself is a long and complex process. The need to settle disputes and other problems in manner comprehensible to the layperson still prevails and therefore the need for a popular justice system still exists. As Schärf (1994b) says
This implies that while issues of accessibility and representativeness are being resolved at the level of state justice, people will continue to regulate themselves in a manner which they find familiar, understandable and acceptable. Underlying Principles of the Two Systems Given that parallel systems of justice have and still exist, it is necessary to compare their perceptions of their role in the administration of justice. Schärf (1994) says that modern law as enshrined in the criminal justice system, places the onus of controlling and supporting the individual, on the state. Thus the state is responsible for maintaining law and order thereby ensuring the governance of society. In contrast, popular justice stems from pre-modern law which views the responsibility of social control and sanction as being that of the community. Thus the community accepts responsibility for maintaining peace and harmony. Considering these differences between the two systems, is there room for co-option? Schärf (1994) provides several examples of Western countries which have incorporated elements of popular justice into their state justice systems. The onus of social control does not rest solely with the state and popular justice mechanisms are employed to deal with problems at local level. In citing examples of Third World countries, Salas (1983) discusses the institutionalisation of the Cuban popular tribunals into the Cuban justice system while Cutshall (1991) refers to the attempts at integrating the Zimbabwean community courts into state structures. Incorporation implies that the popular justice system becomes part of the state justice system and therefore subject to state control. The main problem would be that the system would lose its popular nature and as such would ultimately become another formalised, bureaucratised appendage of the state. This is evident in the demise of the Cuban popular tribunals after the revolution (Salas, 1983). Cutshall (1991), in highlighting the failure of incorporation of community courts into the state justice system in Zimbabwe, says that the exercise was not cost- effective. The state was unable to fund the process of training and developing communities and subsequently did not reach many of the remote areas. These experiences have important lessons for South Africa which, as a fledgling democracy, has to contend with the socio-economic legacies of the past. At best, the popular justice system should operate in tandem with the state justice system and the latter should regulate the various structures which exist. Regulation refers to the state making provision for the establishment of popular justice mechanisms such as community courts. The state in consultation with communities would therefore determine the jurisdiction of the courts, assist with para-legal training and encourage liaison between non-governmental organisations (NGO's) and community courts for purposes of self-evaluation and training. In this way the state acknowledges the role and contribution of the community courts to the governance of society. Community Courts As Viable Popular Justice Mechanisms Given that the state justice system will for a long time be inaccessible to most people it is suggested that the alternative modes of justice sought by people in the townships be accorded a place in the arena of formal justice. Community courts in particular need to be explored as viable alternatives to the state justice system. Granted, the idea of transplanting this phenomenon from a racially homogenous context (the Black townships) to one which is multiculturally diverse may be construed as being problematic. However, it is contended that the principles underlying popular justice mechanisms viz. democracy, fairness, community values and a regard for the individual's basic human rights can be employed to the benefit of all South Africans. The way in which these principles have guided the development and effectiveness of unregulated 'community courts' will now be outlined : Accessibility Community courts are accessible to people in terms of time and place. They usually sit in the evenings and/or at weekends thus making it possible for people to attend. In addition, the proceedings are normally conducted within reasonable proximity to participants' homes thereby overcoming some of the problems normally caused by a lack of transport. The language which is employed in the proceedings is accessible in that it is conducted in the participants' mother tongue. Thus parties are full participants in the proceedings and are not excluded on the basis of language. Because the courts are open to the community, the audience is free to participate in the proceedings by directing questions at the parties and/or suggesting acceptable solutions to the problem. For the community this an integral part of owning the process. Problem-solving process The goal of community courts is to solve problems in the community and therefore problems which may not receive credence in the criminal courts are dealt with in the same manner as weightier ones. This stems from the premise that insignificant problems have the potential to mushroom into more crucial ones and therefore need to be dealt with expediently. Thus the individual's problem (dispute) becomes the community's problem and it (the community) has to accept responsibility for dealing with it. The way in which problems are dealt with differ markedly from the procedures of the state justice system. The emphasis is on the relationship between those involved in the dispute rather than the dispute itself. While the latter is dealt with and sanctions imposed, there is a concern for the relationships between people and ultimately the well-being of the community. Guilt or innocence are peripheral issues when parties have to resolve issues and address the problematic relationship. Thus the role of the court is not only to deal with the dispute itself but also to mediate between parties so as to promote the peace and harmony which it strives to maintain. Rehabilitative sanctions With the emphasis on restoring debilitated relationships, the community courts focus on re-educating the guilty party by imposing sanctions which would further this end. For example, the person can be ostracised and her/his offence made public. Restitution can be made in monetary terms or in kind - fines can be imposed, compensation can be made or community service can be exacted. All in all, the sanctions imposed by the court serve to deter people from committing offences and teach them the acceptable ways of conducting themselves. Cost-Effectiveness There are little, if any costs involved in conducting the proceedings since those who serve the court are volunteers who are democratically elected by the community. The legal costs incurred by the proceedings in the criminal courts (i.e. remuneration of state legal professionals etc), are non-existent in the community courts. This cost-effectiveness also extends to time as the proceedings are conducted without the risk of people having to absent themselves from work. Thus it can be seen that there are definite benefits in employing this mechanism of popular justice. There are benefits for the state in the form of the maintenance of law and order. Communities themselves can benefit from this empowering and community-building experience. The following is a proposal for a national model of community courts. it employs ideas from previous work (SANCO, 1993; Van der Merwe, 1994) and draws from reviews (Cutshall, 1991; Salas, 1993; Nina, 1993) on the employment of popular justice mechanisms. A National Model for Community Courts Definition of Concepts A Community Court refers to a democratic structure which exists to resolve disputes and other problems experienced at community level. It is not part of the criminal justice system and functions in tandem with the state justice system. It is regulated by the state and is acknowledged as a legitimate dispute resolution structure. A dispute refers to a problem between two or more people who live in the community. It is used to refer to problems ranging from miscommunication between people to what is termed a criminal offence by the state. Composition of the Community Court Those who are eligible to serve the court are the following: Community residents (women and men) who are eligible to vote (18 years and older) and who are of good repute in their community. There should be no discrimination on the basis of previous racial classification. Court members should be well-versed in the affairs of the community and the procedures and deliberations of the court. Procedure for the Selection of Court Members Court members will be democratically elected by residents in the community. Nominations will be made to local government structures(which are to be voted in position in November 1995) which will screen and select candidates. Local government structures will oversee the election process. Structure of the Community Court The court will consist of :
Geographical Location One community court will he established in each magisterial district (as defined by the state). This facilitates referrals between the community court and the criminal court and ensures the even distribution of community courts across the country. The local community courts will be co-ordinated at regional and national level so as to ensure uniformity (in terms of proceedings) and accountability to communities. At regional level there will be one central Community Court which will act as a court of appeal and as a watchdog over community courts in the region. It will consist of a representative from each of the local community courts. At national level, there will be a panel of presiding officers from each of the regions who will liase regarding court procedures and the courts' relationship with the state. They will also liase with relevant state structures, i.e. the Department of Justice, regarding issues of regulation. Jurisdiction The jurisdiction of the community court is limited to disputes occurring within the community's boundaries. Thus it will only deal with disputes which arise between residents or which affect residents within the community. Since the central aim of the court is to promote peace and harmony in the community, it will deal with matters which threaten the achievement of this goal. Examples are:
The definition of these offences will be determined at regional level. Through a process of discussion and negotiation amongst representatives from the local courts common definitions should be arrived at. In this way uniformity is ensured. More serious crimes such as murder, rape, incest, child abuse and neglect which make a more direct impact on human life as opposed to livelihood should be referred to the criminal courts. This is in recognition of the role which the criminal courts should play in protecting human life and punishing those who deny others this basic human right. Nature of Proceedings In keeping with the notion of accessibility, the proceedings of the court should be comprehensive and open to all. Therefore these proceedings should be conducted at a time convenient to most people. Court sessions may be conducted from Monday to Thursday from 18h00 to 20h30. The location of the court should be accessible to people in the community and therefore a community centre or hall would be most convenient. The proceedings should not be inquisitorial instead each party should be afforded the opportunity to state her/his case. The audience along with the panel of presiding officers, should negotiate, mediate and comment on the proceedings. Ultimately the panel should provide the verdict and issue the appropriate sanction. However, community residents have the right to provide suggestions as to the latter. It is important that the proceedings be conducted in the language of the participants so as not to alienate them from the process. The proceedings should be recorded in the language of choice but a copy should also be made in English. In this way, the court documents are accessible to all. Sanctions Since the community court aims to resolve disputes rather than a winner-takes-all approach, the sanctions which are imposed should be in keeping with this ideal. For this reason, the court cannot sentence someone to imprisonment(this falls within the ambit of the state courts) or inflict physical punishment. Examples of sanctions are:
Appeal System The decisions of the community court may be reviewed and overturned by the regional community court. A party may make representations to this body if she/he is dissatisfied with the outcome of the court proceedings. An appeal may then be lodged and is at the discretion of the regional community court. Concluding Comments The benefits of employing community courts as part of the criminal justice system have been highlighted. It is evident that people have had the ability to effectively regulate themselves and their communities thereby maintaining a semblance of law and order. The most important lesson which can be learnt is that the unregulated 'community courts' as they have existed in the townships, have developed credibility amongst residents and have flourished as a result. It has also been an important source of empowerment in that people have had direct governance over their affairs. While the government of national unity conscientiously strives to fulfil its task of providing an accessible, fair and legitimate criminal justice system one cannot expect these institutional changes to occur overnight. Thus people, especially the poor, will continue to remain marginalised from state justice processes - their concerns will be relegated to the back seat. The proposals proffered in this document provide a way of solving this problem. In addition it provides guidelines for a system which incorporates principles of democracy and empowerment. Bibliography 1. Cutshall, C R (1991) Justice for the people: Community Courts and legal transformation in Zimbabwe. University of Zimbabwe. 2. Nina, D (1993) (Re)making justice in South Africa: Popular Justice in transition. Working paper no. 8 Centre for Social Development Studies, University of Natal, p. 1 - 25 3. Salas, L (1983) The Emergence and Decline of the Cuban Popular Tribunals. Law and Society Review vol. 17, no 4. 4. SANCO (1993) Proposal for a Uniform model of Anti-crime Committees and Community Courts. SANCO, Eastern Cape 5. Schärf, W (1994a) Knitting necessary knots? Democracy in Action vol. 8, no. 4 6. (1994b) Popular Justice: True Judgement by One's Peers. Supplement to the Weekly Mail and Guardian, March 7. Van der Merwe, H (with Mbebe) (1994) Informal Justice: The Alexandra Justice Centre and the Future of Interpersonal Dispute Resolution. Working Paper 21, Centre for Applied Legal Studies. |
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Date: 21 October 2003