By John Brand, Robin Monakali, and Felicity Steadman

September marks Heritage Month in South Africa, with National Heritage Day celebrated on 24 September. On this day, South Africans are encouraged to embrace what we inherited from our ancestors, to celebrate our history and cultural roots together as one nation.

Our indigenous heritage

Heritage Day, formerly known as ‘Shaka Day’ or ‘Shaka’s Day’, was celebrated to commemorate the legendary King Shaka Zulu who played an important role in uniting different Zulu clans into one Zulu nation. In 1995, a request was put forward for ‘Shaka Day’ to be confirmed as an official holiday. However, the new South African government instead decided that a national holiday would be created where South Africans of all cultures and creeds would honour our rich cultural heritage.

National Heritage Day (or braai day – the South African barbeque) is dedicated to recognising the cultural wealth of our country by acknowledging and celebrating our various traditions, beliefs, languages and people against the background of our unique diversity. 

As the African proverb states, “Umuntu Ngumuntu Ngabantu” which translates to, “A person is a person because of people”.

This Zulu phrase crosses language and cultural borders and affirms our humanity and captures the essence of respect and unity amongst all cultures.

Mediation has a long history in South Africa.[1] In traditional African communities, a sanction was seldom invoked for a breach of customary law. Instead, agreed corrective mechanisms were the primary means of conflict resolution. At the core of traditional African dispute resolution is the concept of “Umuntu Ngumuntu Ngabantu. The concept emphasises community building, respect, sharing, empathy, tolerance, the common good, acts of kindness and communication, consultation, compromise, cooperation, camaraderie, conscientiousness and compassion. Dispute resolution processes among the Pedi, for example, are infused with these values.

The Pedi have a highly evolved system of conflict resolution, and parties are actively encouraged to resolve their differences without intervention from the Chiefs or their delegates, through the medium of family processes as courts of first instance. The processing of the matters through the Pedi hierarchy of courts and related structures takes place as a result of the failure of the conflict resolution process at the lower levels. However, the primary role assigned in Pedi society to maintaining harmony is manifested in fresh attempts in the Chief’s Court to drive the disputants to reconsider resolving differences without intervention. [2]

The impact of colonialism

Colonialism disrupted this tradition because Western dispute resolution of the time preferred adjudicative outcomes to consensual ones. Koopman puts it this way:

[W]hites, by and large, are individualistic exclusivists. When managing conflict, therefore, we prefer to apply win/lose tactics, clear-cut and defined structures and procedures. Mostly we alienate ourselves within conflict situations leading us to enter into negotiations in order to control an outcome of ‘rightness’ and ‘wrongness’. Africans by and large, are communal inclusivists. Managing conflict becomes an open sum process involving immediate family, supervisors, elders, etc. within the framework of morals. This necessitates entering into a dialogue from which a sense of fairness and unfairness towards other members in society can emerge.[3]

As a consequence of colonialism, adjudication before courts and arbitrators became the dominant method of dispute resolution in the civil justice system in South Africa. The tradition of amicable dispute resolution did, however, live on and was promoted by famous South Africans such as Mahatma Gandhi and Nelson Mandela. This is epitomised in the words of Mahatma Gandhi:

“Whenever you are confronted with an opponent, conquer him with love.” and by Nelson Mandela: “If you want to make peace with your enemy, you have to work with your enemy. Then he becomes your partner.”

The Independent Mediation Service of South Africa and the National Peace Accord

In recent decades, the tide has begun to turn away from adjudication in favour of consensual dispute resolution in the civil justice system, and in the employment arena in particular. In South Africa, this renaissance is probably attributable, to a large extent, to the establishment, in 1984, of the Independent Mediation Service of South Africa (IMSSA). This body was established by a group of trade unionists, employers, academics and lawyers who wanted a credible dispute resolution organisation to offer services directed at the mediation and arbitration of employment disputes in South Africa. At that time the statutory institutions of the apartheid state lacked credibility and effectiveness, and IMSSA was formed as a substitute for those institutions. By the end of the 1980s, IMSSA had branched out into community mediation because of its success in handling employment disputes. It played a very important role, together with a range of other organisations, in the mediation of community disputes during the late 1980s and the 1990s.

The National Peace Accord, which helped to deliver a democratic South Africa peacefully, also played an important role in re-establishing the African tradition of consensual dispute resolution in communities in South Africa. At the same time, negotiations for a political transition were taking place.

Mediation became well entrenched in family and divorce disputes and in the environmental area. By the end of the 1990s, many organisations were providing consensual dispute resolution services in the employment, community, family and environmental areas. Since 1995 the movement toward consensual dispute settlement has increasingly received statutory support. There are now approximately fifty statutes in South Africa which provide for mediation of one kind or another.

Mediation is not the only consensual dispute resolution process to gain currency in South Africa. Processes such as med/arb, arb/med, con/arb, arb/con, fact-finding, advisory arbitration, facilitation and con-opinion are now regularly used in the Country.

The Commission for Conciliation, Mediation and Arbitration

The most widespread application of mediation in South Africa has, without a doubt, been in the area of labour or employment disputes. This is largely attributable to the pioneering work done by IMSSA during the 1980s, referred to earlier. One of the first statutes passed into law by the first post-apartheid parliament was the Labour Relations Act of 1995 (LRA). The centrepiece of the dispute resolution system established by the LRA is the Commission for Conciliation, Mediation and Arbitration (CCMA).

The LRA requires parties to refer all employment disputes to conciliation as a necessary prior step before either taking industrial action or referring a dispute for adjudication by the CCMA, a bargaining council or the Labour Court.

The consequence of this is that a large number of employment disputes are conciliated in South Africa. The CCMA received 156 777 referrals in the 2021/22 financial year and has conducted 3 632 085 cases since 1996. It is estimated that employment dispute resolution agencies in South Africa receive more than 200 000 referrals each year.

Commercial mediation

Rather surprisingly, disputants in the commercial arena have been slow to recognise and put to use the power of mediation. There is a range of possible reasons for this. They may include the inherent conservatism of the business community and commercial lawyers, a perception that mediation is a soft process that reflects weakness or indecisiveness on the part of disputants, and vested interests in slow and expensive adjudication processes. For these (and perhaps other) reasons, mediation has been slow to take off in commercial disputes.

Contrastingly, elsewhere in Africa, commercial mediation either has been or is being established as a mainstream process for resolving commercial disputes in, among other countries, Ghana, Ethiopia and Uganda. In Nigeria, the Lagos Multi-Door Courthouse (LMDC) was established in 2002, as a public-private partnership between the High Court of Justice, Lagos State and a private dispute resolution consultancy. The overarching objective of the LMDC is to facilitate dispute resolution within the Nigerian Justice System. It is the first court-connected alternative dispute resolution (ADR) centre in Africa.

Mediation is however not totally foreign to civil procedure in South Africa. Attempts at mediation have been specifically contemplated for many years in the High Court, Rules 34 and 37.

In terms of rule 34, parties may lodge without prejudice monetary offers or tenders of settlement with the Court. Such offers may not be disclosed to the Court at any time before judgment has been given. Once judgment has been given, they may be brought to the notice of the Court as being relevant to costs. These offers may become more important to parties who wish to demonstrate to the Court that they have considered settlement in the manner required by the rules, or in the application of the new Court-referred mediation process referred to below. In the United Kingdom, these offers (known as part 36 offers) have had a significant impact both on the mediation process and on later costs orders if the matter goes to trial. 

Rule 37 sets out the matters that must be dealt with at a pre-trial conference. It includes sub-rule 37(6)(c), which requires parties to minute that every party claiming relief has requested an opponent to make a settlement proposal and that the opponent has reacted to the request. Sub-rule 37(6)(d) requires the parties to minute whether any issue has been referred by the parties for mediation, arbitration or decision by a third party and on what basis it has been so referred. 

Implicit in these provisions, read with sub-rule 37(5), is that the parties must have considered settlement and must have considered referring one or more issues to mediation, arbitration or decision by a third party. 

Despite the comparatively slow arrival of mediation in the South African civil justice system, decisive steps are now being taken to promote it.

The Rules of Voluntary Court-Annexed Mediation (Chapter 2 of the Magistrates’ Courts Rules) came into operation on 1 December 2014. The objective of these Rules was to assist case management in the reduction of disputes appearing before the Court and to promote access to justice. The Rules make provision for the referral of disputes to mediation at any stage during civil proceedings, provided that judgment has not been delivered by the Presiding Officer. Unfortunately, the implementation of these Rule was not effective and the project was suspended on 15 March 2022.

Then on 9th March 2020, South Africa took its first tentative step into the world of High Court-aligned civil mediation. Rule 41A, an amendment to the rules regulating the conduct of proceedings in the High Courts, compels the plaintiff or applicant to file a prescribed Rule 41A Notice, indicating either agreement or its opposition to refer the dispute to mediation. On a practical level, this notice should accompany the service of the summons or application. In addition, the Court may, during the Court process, require parties to consider mediation and recommend mediation if it deems it appropriate. 

Mediation in terms of Rule 41A has been very slow to get off the ground. In a recent survey undertaken by Conflict Dynamics, respondents reported that, whereas they had frequently completed the Form 27 Notice of agreement or opposition to mediation, mediation had very seldom taken place. The most common reason given for this was a lack of understanding of mediation and of the Rule on the part of attorneys, and infrequent direction to the parties by Judges to go to mediation.

The High Court in South Africa has sometimes been intolerant of lawyers who ignore the provisions of the rules requiring that consideration be given to ADR processes, and who ignore the potential benefits, (to their clients and to the civil justice system as a whole), of using alternative processes to resolve, define, limit or otherwise dispose of disputes that are pending before the courts. There have however been relatively actual decisions in this regard. [4]

In conclusion

Therefore, there is much that still has to be done to promote a culture of effective dispute resolution in the civil and commercial field like that which was demonstrated by our forebears, and through organisations like IMSSA and the CCMA.

As we remember the difficulties and hardships of the past, share in the victories of the present, and raise hope for the future, Conflict Dynamics calls on all South Africans to use Heritage Month to foster effective dispute resolution, greater social cohesion, nation-building and a shared national identity. May Heritage Day be the ultimate reminder that together, we are stronger!