Formal and informal dispute resolution in the Limpopo Province, South Africa

Waal, C. S. van der

doi:10.1080/23323256.2004.11499906

Cited by 10 publications

(10 citation statements)

References 7 publications

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“…Bassadien and Hochfeld (2005) argue that in many communities in South Africa, domestic violence disputes have to be dealt with by the elders of the community or traditional authorities, an indigenous legal system where punishment is meted out for what is considered “unacceptable behavior” in that community. The customary dispute resolution forum can also include a family meeting, and it has been found to be the first avenue people utilize when seeking assistance with marital disputes (Button, Moore, & Himonga, 2016; Green, 1999; Griffiths, 1997; Higgins, Fenrich, & Tanzer, 2006; Himonga & Moore, 2015; van der Waal, 2004). Most evidence points to the ways in which elders minimize abuse or collude with the abuser, but the conditions and terms of such collusion or rejection are less well understood.…”

Section: Changing South African Contextmentioning

confidence: 99%

“…A family meeting can be understood as “a traditional (extra-judicial) system of arbitration which often takes place when violations of accepted norms have occurred which may invite some sort of sanction” (Green, 1999, p. 165). The custom of calling a family meeting describes the repetitive behaviors of a group of people in South Africa (Higgins, Fenrich, & Tanzer, 2006; van der Waal, 2004; Author) and Botswana (Griffiths, 1997) when marital discord arises. This custom is a source of a customary rule as there is normative agreement (Himonga & Moore, 2015) that this dispute resolution forum is the correct place to seek assistance with a marital discord problem.…”

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confidence: 99%

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“My Husband Has to Stop Beating Me and I Shouldn’t Go to the Police”: Family Meetings, Patriarchal Bargains, and Marital Violence in the Eastern Cape Province, South Africa

Moore

2019

Violence Against Women

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This article examines how women in South Africa, in challenging marital violence, navigate relations of patriarchal domination through appeals to the state, familial channels, or a combination of both. Using Kandiyoti’s concept of “patriarchal bargains,” the article describes how women during family meetings draw upon the state to challenge patriarchy within intimate partnerships and reassert control within their marriages. However, by drawing on the state for support, women have to navigate the patriarchal domination at the macro level as the state continues to act as an oppressive entity, particularly as it continues to constrain women’s access to justice.

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Section: Changing South African Contextmentioning

confidence: 99%

mentioning

confidence: 99%

“My Husband Has to Stop Beating Me and I Shouldn’t Go to the Police”: Family Meetings, Patriarchal Bargains, and Marital Violence in the Eastern Cape Province, South Africa

Moore

2019

Violence Against Women

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“…Furthermore, while the TCB-2008/2012 sought to replace the Black Administration Act, the bill also perpetuated the act's mischaracterization of traditional courts as composed of a traditional leader who approximates a civil court judge without a role for ordinary members of the community in traditional courts' decision making. By adopting the same stance, the TCB-2008/2012 would be compromising the deeply consultative and participatory values embedded in traditional governance that proved mostly resilient (Claassens and Mnisi 2009;Van der Waal 2004). These include practices, described as existing in various South African communities, such as that the senior traditional leader would not speak until the end of a meeting or case to summarize the views of the "community-in-council" (Dutton 1923: 59-60;Hammond-Tooke 1975;Reader 1966: 259-60).…”

Section: An Invented and Exclusive Traditional "Courts" Structurementioning

confidence: 99%

Courting Custom: Regulating Access to Justice in Rural South Africa and Malawi

Ubink¹,

Weeks²

2017

Law Soc Rev

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The continued relevance of customary law for the regulation of the daily lives of Africa's citizens poses serious governance challenges to sovereign states, such as how best to regulate customary dispute settlement. While confronted with largely similar problems, the South African government proposed to enhance and regulate the position of its traditional courts, whereas Malawi has opted for the creation of hybrid local courts that combine characteristics of regular state courts and customary fora to be the main avenue of customary law cases. This paper analyzes the strengths and weaknesses of both approaches and displays how the two countries’ historical and political contexts enable and constrain their regulatory choices in the field of customary dispute settlement, as well as influence the risk and benefits of the various options. In this respect, the political power of the traditional leaders is a significant determinant.

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“…When the matter draws to a close, someone sums up the matter and then the headman gives his decision. 18 This simple account of a traditional court procedure makes it clear that a principle of open, participative justice is deeply etched in our memory and practice. Indeed, it is a living aspect of justice in modern South Africa.…”

Section: Kate O'reganmentioning

confidence: 99%

Justice & Memory: South Africa's Constitutional Court

O’Regan

2014

Daedalus

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In a society such as South Africa in which the past has been deeply unjust, and in which the law and judges have been central to that injustice, establishing a shared conception of justice is particularly hard. There are four important strands of history and memory that affect the conception of justice in democratic, post-apartheid South Africa. Two of these, the role of law in the implementation of apartheid, and the grant of amnesty to perpetrators of gross human rights violations, are strands of memory that tend to undermine the establishment of a shared expectation of justice through law. Two others, the deeprooted cultural practice of justice in traditional southern African communities, and the use of law in the struggle against apartheid, support an expectation of justice in our new order. Lawyers and judges striving to establish a just new order must be mindful of these strands of memory that speak to the relationship between law and justice.

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Formal and informal dispute resolution in the Limpopo Province, South Africa

Cited by 10 publications

References 7 publications

“My Husband Has to Stop Beating Me and I Shouldn’t Go to the Police”: Family Meetings, Patriarchal Bargains, and Marital Violence in the Eastern Cape Province, South Africa

“My Husband Has to Stop Beating Me and I Shouldn’t Go to the Police”: Family Meetings, Patriarchal Bargains, and Marital Violence in the Eastern Cape Province, South Africa

Courting Custom: Regulating Access to Justice in Rural South Africa and Malawi

Justice & Memory: South Africa's Constitutional Court

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