In the words of Nelson Mandela, black South Africans have experienced law "not as an instrument that afforded the citizen protection but rather as the chief means of our subjection." Recognizing this, Paul Pretorius has effectively sought and developed new forms for resolving disputes that restore public confidence in the legal process, through community dispute resolution centers in black townships.
The New Idea
Where there has been exclusion, let active participation of the excluded be the first principle of the new order. Where there has been gross imposition of foreign, often arrogant, juridical norms, let there be a comprehensive effort to understand and respect the informal systems of dispute resolution pre-existing in the community. Where there have been few viable alternatives to harsh and unjust laws, create a transitional framework that provides the broadest possible range of forms of dispute resolution so that ordinary citizens may exercise a meaningful choice as they redesign the legal system. These radical ideas guide Paul Pretorius as he works with other progressive lawyers, popular community organizations, and university-based legal researchers to establish community-based dispute resolution centers in urban black townships. These centers will be guided by contemporary alternative dispute resolution (ADR) techniques. Current ADR practice aims to help the parties of a conflict shift their point of reference from stated positions (which are often fundamentally irreconcilable) to their actual interests (which more often than not stand on some common ground). Once this step is taken, commonality of actual interest opens the way to resolution. Staffed by trained community residents, the dispute-resolution centers will, in the first instance, diagnose the essential character of community disputes brought to them. They will then refer disputes to appropriate vehicles for resolution, including counselling, mediation, arbitration, and litigation. All of the mediators and many of the arbitrators operating under the aegis of the local dispute-resolution centers will be selected and trained from among the respected members of the communities involved. Disputes involving complex questions of law may best be referred to legal practitioners who may reside outside the community. The community dispute resolution centers may be regarded as an alternative to the "people's courts" that emerged as a form of popular justice during the township anti-apartheid uprisings of the mid-1980s. The people's courts were themselves preceded by traditional tribal community dispute resolution forums known as MaKgotla or inKundla. But in the highly politicized and polarized context of urban townships in the mid-1980s, people's courts lost almost any resemblance to traditional deliberative methods that had evolved in stable, predominantly rural villages. Of necessity, the people's courts operated clandestinely, and sometimes came to be seen as arbitrary or partisan. Sentences were inconsistent and corporal punishment became the most common penalty. On the positive side, they did carry more social legitimacy than state structures and drew constructively on the powerful social pressures generated by a broadly popular political insurrection. Like formal courts, the new centers for community dispute resolution will provide the technical expertise and consistency of standards and practice that together may constitute fair process. But unlike the judicial order under apartheid, they will represent a direct and organic relationship with black society.
Black South Africans know their country's legal system to serve the narrow interests of the whites, who have until recently jealously maintained absolute political control of the country. Since the 1960s, 3.5 million blacks have been forcibly removed from their homes and relocated to barren rural dumping grounds called "homelands" by the government -- in the name of the law. When, for over a century, untold thousands of black mothers and children were evicted from so-called white urban areas (although their husbands and fathers were "permitted" to stay as "temporary workers"), it was done in the name of the law. Since the introduction of "influx control" laws in 1916, some 17 million black South Africans have been arrested and jailed merely for physically being in "white areas." As thousands of African nationalist leaders were prosecuted and in many cases jailed for life or sentenced to death, it was judges and state attorneys who pronounced sentence. The litany of this terrible abuse of legal authority goes on and on. As a tragic but understandable consequence, the majority of South Africans have come to question the validity of the Western-derived legal order per se. Simultaneously, the generalized and devastating impoverishment that the apartheid system has wrought on black South Africa has undermined the broader social fabric. Criminality has flourished in an arena of material desperation and widespread disdain and distrust of the police. Finally, the militant popular political resistance to apartheid, though it represents a search for a new and just order, has at times had the unintended consequence of further undermining the legal foundations of society. In the mid-1980s, a gruesome form of summary execution of "enemies of the people" took hold in the townships. From 1984 through mid-1990, 454 black South Africans were "necklaced" to death by means of immolation inside a rubber tire filled with petrol. The "guilt" of many of these victims had first been established in people's courts. By the mid-1980s, local government structures and the police were a principal target of political struggle for anti-apartheid organizations. Local town councilors were frequently singled out for necklacing when they could not be persuaded to resign from office and, by January 1991, only half of the town councils in the Transvaal were able to convene a quorum. Countrywide, of a total of 1,873 local community councillor positions, almost one half or 902 remain vacant. The force of the popular challenge in the 1980s era of people's power, and the related African National Congress call to render the country ungovernable, forced the government to declare successive states of emergency beginning in 1985. These were accompanied by massive physical repression that succeeded in re-establishing official authority in the townships. Legitimacy, on the other hand, had irrevocably shifted to alternative popular structures such as local popular civic associations that arose along side of the people's courts. From the late 1980s these "civics" led a swelling succession of rent boycotts that have swept the country, further immobilizing local government and underlining the necessity of a national political settlement that effectively transfers power to the black majority. By the late 1980s, the government had quietly begun to distance itself from the largely dysfunctional town councils and to negotiate with the civics, many of whose leaders they first released from detention for this purpose. With the lifting of the ban on African National Congress, the Pan Africanist Congress, and other prescribed political organizations on February 2, 1990, and the release from prison of Nelson Mandela later that month, the process of a national political settlement began in earnest. As the country makes the transition from civil war to civil society, many people are exploring ways to reweave the badly sundered social fabric and legal system. For Paul and his colleagues working on alternative forms of dispute resolution, this offers a unique opportunity to build elements of a new legal order firmly rooted in popular legitimacy.
Since its introduction in the labor relations field in 1984, mediation has achieved a remarkable measure of acceptance and success. The country's prominent mediation institution, the Independent Mediation Service of South Africa (IMSSA), of which Paul was one of the first steering committee members and is currently its board chair, has grown from conducting 39 mediations in 1984 to 580 mediations in 1990. Once skeptical, trade union leaders and company directors now broadly accept mediation and its many incidental benefits, including and especially the improvement of the labor-management relationship. The demonstrable success of labor mediation provides the springboard to introduce alternative dispute resolution to the arena of community conflicts. There is even a strong institutional overlap and continuity since trade union leaders often play prominent roles in their communities. Indeed the leader of the civic association in the community chosen for the pilot dispute resolution center is also the general secretary of a major trade union. Paul has assembled a team of experts who in turn have assembled members of the community to develop the project. The team includes progressive lawyers, members of community organizations, and South Africa's preeminent university-based legal research center. As many of the project team members are work in within legal and mediation practices, they have the technical skills to train the staff and mediators and arbitrators of the community dispute resolution centers. After providing the initial training, they will continue to provide the back-up support that will maintain the high standards that ensure success. The participating university-based research institute, which is the country's leading research organization on labor, will document and analyze the first pilot centers. It will prepare and publish illustrative case studies that will share the early lessons of the experience for a wider national audience. Paul and most of the other participants in the project are trained and experienced labor mediators. They will communicate the model to lawyers throughout the country. And the participating civic associations will work with their counterparts to provide the best introduction to communities coming in to the project. In addition to training and providing back-up to a growing network of community dispute resolution centers, Paul and his team of expert resource people will work with state institutions top ensure the centers are allowed the latitude of operation that they need. As the national political negotiations mature and a new democratic constitution is adopted, the project will have positioned itself to integrate the centers into the formal justice system and perhaps even expand aspects of the centers into full-fledged small claims and Magistrate's courts.
Born of Afrikaaner parents, Paul Pretorius was educated in a private English language school. He was involved in the turbulent university student politics of the late 1960s and early 1970s, rising to national prominence as President of the National Student Body-Nusas. He supported Steve Biko's initiative to create a new national student organization for black students, thereby splitting progressive student political organizations along racial lines. Highly controversial at the time, Biko's Black Consciousness Movement proved itself to be uniquely important in revitalizing the broad national liberation movement and, paradoxically, ultimately vindicating the principle of anti-racism. Paul's days as a student leader and activist were curtailed prematurely by a banning order (a form of restriction order) issued under the terms of the government's Security Legislation. While under the order, Paul completed his university studies by correspondence and subsequently began to practice law. South Africa has a split bar, which means that only some lawyers, known as advocates, are certified to appear in superior courts. Paul qualified as an advocate, and when the country's first public interest law firm, the Legal Resources Center, was started and sought full-time, in-house advocates, Paul joined the Center. During and following his five-year term with the Legal Resources Center, Paul became a leading practitioner of and proponent of alternative dispute resolution methods, especially mediation and arbitration. He made formal study visits to alternative dispute resolution centers in the United States and Britain and began to explore ways to adapt that ADR experience to South Africa. As the civil war gave way to a protracted process of negotiated settlement in early 1990, it became possible to begin to implement these ideas, and the current project to initiate community dispute resolution centers was born.