© Juta & Co Ltd.

MODULE 9
Part 2: Special
courts and
alternative dispute
resolution
Table of contents
1. Introduction ................................................................................................................. 3
2. Special courts ............................................................................................................... 3
2.1 Special higher courts ....................................................................................................... 3
2.1.1 Labour Court and Labour Appeal Court ................................................................... 3
2.1.2 Court for Income Tax Appeals .................................................................................. 4
2.1.3 Competition Appeal Court........................................................................................ 4
2.1.4 Land Claims Court ..................................................................................................... 4
2.2 Special lower courts ........................................................................................................ 4
2.2.1 Children’s Court ........................................................................................................ 4
2.2.2 Maintenance Court................................................................................................... 4
2.2.3 Divorce Court ............................................................................................................ 5
2.3 Other special courts ........................................................................................................ 5
2.3.1 Equality courts .......................................................................................................... 5
2.3.2 Small Claims Court .................................................................................................... 5
2.3.3 Water Tribunal.......................................................................................................... 5
2.3.4 Courts of Chiefs and Headmen ................................................................................. 5
3. Alternative dispute resolution (ADR) ............................................................................ 7
3.1 Arbitration ....................................................................................................................... 8
3.2 Negotiation ...................................................................................................................... 8
3.3 Mediation ........................................................................................................................ 8
3.3.1 Court-annexed mediation ...................................................................................... 10
3.4 ADR in South Africa ....................................................................................................... 11
4. Conclusion ................................................................................................................. 12
5. Bibliography............................................................................................................... 13

Tel: +27 21 447 7565 | Fax: +27 21 447 8344

Website: [Link] | Email: info@[Link]
Page 2 of 13
Learning outcomes:

LO4: Identify the specials courts that exist for specialist litigation.

LO5: Illustrate the role and purpose of alternative dispute resolution procedures.

1. Introduction
Alternative dispute resolution (mediation and arbitration) is gaining popularity in South
Africa and abroad and it is therefore important to know how alternative dispute resolution
differs from court proceedings and procedures.

In Part 2, you will:

• See that specials courts exist for specialist litigation (Section 2).

• Learn the role and purpose of alternative dispute resolution procedures (Section 3).

2. Special courts
Kleyn and Viljoen (2010:189) argue that special courts have been instituted for the purposes
of specialised litigation. They are also divided into higher and lower courts. The presiding
officers in the higher courts are judges. Special courts can decide constitutional matters only
if an Act of Parliament allows it. Special lower courts, like the ordinary lower courts, may
never decide on the constitutionality of any legislation or the conduct of the President.

The following sections cover some of these courts.

2.1 Special higher courts

2.1.1 Labour Court and Labour Appeal Court
Kleyn and Viljoen (2010:190) state that the Labour Court and the Labour Appeal Court were
established in terms of the Labour Relations Act 66 of 1995.

The Labour Court consists of a Judge President, a Deputy Judge President and additional
judges. It has it’s seat in Johannesburg and has jurisdiction within the whole geographical
area of South Africa. This court adjudicates labour disputes concerning, for example, strikes,
retrenchments and discrimination. The Labour Relations Act provides the Labour Court with
jurisdiction in certain constitutional matters, for example when infringements of human
rights by the state in its capacity as an employer are alleged.

The general rule is that a labour dispute must first be resolved through conciliation
(negotiation or mediation). Only if conciliation was unsuccessful is the dispute referred to
the Labour Court for adjudication.

Tel: +27 21 447 7565 | Fax: +27 21 447 8344

Website: [Link] | Email: info@[Link]
Page 3 of 13
An appeal can proceed from the Labour Court to the Labour Appeal Court. This court
consists of the Judge President and Deputy Judge President of the Labour Court and three
other high court judges.

2.1.2 Court for Income Tax Appeals

These courts hear appeals concerning income tax issues. The presiding judge sits together
with an accountant who has at least 10 years’ experience and a representative of the
commercial community (Kleyn & Viljoen, 2010:190).

2.1.3 Competition Appeal Court

The Competition Appeal Court hears appeals from the Competition Tribunal. The Tribunal
adjudicates commercial matters such as restrictive practices, abuse of dominant positions
and mergers. The Competition Appeal Court has jurisdiction within the whole geographical
area of South Africa. It consists of at least three high court judges, one of whom must be a
Judge President (Kleyn & Viljoen, 2010:190).

2.1.4 Land Claims Court

This court was instituted by the Restitution of Land Rights Act 22 of 1994. The function of
the court is to restore land rights to people who have been dispossessed of these rights after
19 June 1913 due to racial discrimination. The court can, amongst other remedies, restore
the original land, provide alternative state land or award compensation.

Usually, such a case is first dealt with by the Commission on Restitution of Land Rights. The
Commission was set up in 1995. If the Commission cannot settle the claim, it is referred to
the Land Claims Court. The court consists of a President and additional judges as members
(Kleyn & Viljoen, 2010:190).

2.2 Special lower courts

2.2.1 Children’s Court
Each magistrates’ court functions as a Children’s Court within its particular magisterial
district. It investigates matters concerning, for example, the adoption of children, children
whose parents or guardians cannot be traced or children whose parents or guardians are
unfit. A Children’s Court can make various appropriate orders on these matters. The
proceedings in such a court are confidential and may not be published without permission
(Kleyn & Viljoen, 2010:191).

2.2.2 Maintenance Court

Each magistrates’ court functions as a Maintenance Court within its particular magisterial
district. Some persons, such as parents, are legally liable to maintain (support) others, for
example, their children. If they do not fulfil their duties, a complaint can be lodged with the
court’s maintenance officer. The maintenance officer will investigate the case, and submit it
to the court. The court can make an appropriate order. It can also increase the amount of
maintenance in the light of changed circumstances (Kleyn & Viljoen, 2010:191).

Tel: +27 21 447 7565 | Fax: +27 21 447 8344

Website: [Link] | Email: info@[Link]
Page 4 of 13
2.2.3 Divorce Court
The Divorce Courts are lower courts and the presiding officer has the same status as a
regional court magistrate. These courts have concurrent jurisdiction with the High Court
regarding divorce and related issues. Many divorce cases are uncomplicated as they concern
unopposed actions and, in such cases, the divorce court is a more appropriate and cheaper
forum than the high court (Kleyn & Viljoen, 2010:191).

2.3 Other special courts

2.3.1 Equality courts
The Promotion of Equality and Prevention of Discrimination Act 4 of 2000 provides for the
establishment of equality courts. Anyone who alleges a violation of their right to equality
may approach an equality court. The ordinary High Court and lower courts function as
equality courts if the Minister has designated a presiding officer in this capacity. A
“designation” is made on the basis of training, experience and expertise in the field of
human rights and equality (Kleyn & Viljoen, 2010:192).

2.3.2 Small Claims Court

The purpose of this court is to settle disputes concerning small civil claims of not more than
R20,000 speedily and inexpensively. The presiding officer is called a commissioner. The
parties themselves are in control of their cases and no legal representation is allowed. The
proceedings are simple and the rules of the law of evidence do not apply. The commissioner
takes an active part in the proceedings and asks questions (the process is inquisitorial).
There is no right of appeal against the court’s judgment, but the proceedings may be taken
on review (Kleyn & Viljoen, 2010:192).

2.3.3 Water Tribunal

The National Water Act 36 of 1998 established the Water Tribunal. This tribunal can hear
disputes about administrative decisions concerning the use and allocation of water
resources. There is a right of appeal to the High Court (Kleyn & Viljoen, 2010:192).

2.3.4 Courts of Chiefs and Headmen

In some areas, the chiefs and headmen of certain black communities in the country have
their own courts. These courts have restricted civil and criminal jurisdiction. They apply the
traditional customary law of the specific community. There was a right of appeal to the
magistrates’ court, but it has now been abolished.
The main characteristics of the procedure in traditional courts are as follows:

• The procedure has always been informal, simplified and non-technical. The strict
and formal rules of evidence, as well as civil and criminal procedure, did not apply.
No legal representation was allowed in these courts.

• A traditional leader (such as a chief) presided over the proceedings in these courts.
Traditional leaders usually have intimate knowledge of the local customs and
indigenous law system, the parties, and the circumstances under which they live.

Tel: +27 21 447 7565 | Fax: +27 21 447 8344

Website: [Link] | Email: info@[Link]
Page 5 of 13
 (Kleyn & Viljoen, 2010:192–193).

Explore further:The Traditional Courts Bill is undergoing a two-stage parliamentary approval

process. When in effect, this Bill will change how the traditional courts operate.

In Bangindawo v Head of Western Tembuland Regional Authority 1998 2 SACR 16 (Tk),

various aspects of the Tembuland regional authority (traditional) court system were
attacked as being unconstitutional. On one hand, the court found that the prohibition of
legal representation in these courts is unconstitutional. On the other hand, the court
accepted the argument that traditional courts conform to the constitutional requirements of
independence and impartiality. Madlanga J observed as follows:

Surely, the views and outlook of believers in and adherents of African customary law to the
question of independence and impartiality of the judiciary would not be the same as those
of non-believers and non-adherents. That being so, there seems, in my view, to be no reason
whatsoever for the imposition of the western concept of the notions of judicial impartiality
and independence in the African customary law setting. … The believers in and adherents of
African customary law believe in the impartiality of the chief or king when he exercises his
judicial functions. The imposition of anything contrary to this outlook would strike at the
very heart of the African customary legal system, especially the judicial facet thereof.

The applicants also argued that the many procedural shortcomings in the traditional courts
imply that people appearing in such courts are not guaranteed equal rights to those
appearing in “ordinary courts”. The court rejected this argument and made the following
remark:

The elaborate procedure that applicants emphasise can be criticised for providing fertile
ground for the raising of technical points, which are not infrequently upheld by the courts.
On the other hand the less elaborate procedure of the regional authority courts has the
advantage of leaving less room for such technicalities and of having the real substance of
disputes dealt with and laid to rest.

However, in Mhlekwa v Head of the Western Tembuland Regional Authority 2000 9 BCLR
979 (Tk), a full bench of the Transkei High Court overruled Madlanga J’s judgment, finding
that the Tembuland regional authority (traditional) courts are unconstitutional in all respects
mentioned above. These regional authority courts have subsequently been disbanded.

The Tembuland regional authority courts were creatures of statute and had a more
extensive jurisdiction than other traditional courts. It is therefore uncertain to what extent
similar findings will be made in respect of ordinary traditional courts (Kleyn & Viljoen,
2010:193).

Tel: +27 21 447 7565 | Fax: +27 21 447 8344

Website: [Link] | Email: info@[Link]
Page 6 of 13
3. Alternative dispute resolution (ADR)
It is not always the duty of the state (the courts) to resolve disputes. The courts do not
provide the only way out of a deadlock. In fact, most disputes are settled by people
themselves and not by the courts. If someone cannot sleep at night because the neighbours
play their music too loudly, that person will first speak to the neighbours to try and come to
an agreement. It is unnecessary to institute legal proceedings in a court immediately.

It is only when the parties themselves cannot settle their dispute that it might
become necessary to turn to the courts. No one is allowed to take the law into their own
hands. This means that no one is allowed “high-handedly” to force a solution onto
another. For example, if the person who is unable to sleep cannot reach an agreement with
the neighbours, she may not, of her own accord, confiscate the neighbours’ hi-fi system.
She then takes the law into her own hands.

In addition, it is often undesirable to go to court in cases where the parties themselves

cannot reach a settlement. The court does not always provide the type of solution that the
parties seek.

Formal litigation presents the following problems:

• Litigation, especially in a civil case, can be very expensive. Legal representation in

general is expensive.

• Some cases take a long time before the matter is finally settled.

• The nearest court is often far away from where the parties live.

• Policing is often inadequate, which can make it impossible to bring the law of
criminal procedure into action.

• Most people do not understand the proceedings in court. They find it traumatic and
feel culturally alienated. Often they do not understand the language of the court.

• The accusatorial (adversarial) process does not always satisfy the parties. They feel
excluded from the proceedings because their legal representatives take charge of
the case. The eventual win–lose situation, where the winner takes all and the loser
gains nothing, is possibly not what the parties wanted.

(Kleyn & Viljoen, 2010:194).

Attempts were made by the state to overcome some of these problems, for example, by the
establishment of the Small Claims Court. However, efforts to also establish other courts such
as a court for a short civil process and family courts were less successful.

There is an alternative to the courts that the parties can use to resolve their disputes. It is
known as alternative dispute resolution (ADR). In ADR, the parties settle the dispute
themselves or with the help of a third party. ADR can be inexpensive and is speedy. It is less
aggressive than court proceedings and the parties are more at ease. The most common
forms of ADR are arbitration, negotiation and mediation (Kleyn & Viljoen, 2010:194–195).

Tel: +27 21 447 7565 | Fax: +27 21 447 8344

Website: [Link] | Email: info@[Link]
Page 7 of 13
3.1 Arbitration
According to Kleyn and Viljoen (2010:195), in the case of arbitration, the two parties
conclude a contract in which they agree to appoint a third person (the arbitrator) to resolve
the dispute. The parties can appoint anybody as arbitrator; however, the arbitrator will
usually be an expert in the particular field. Basically, the process is similar to the court
process in that the arbitrator listens to both parties and then hands down a decision. The
parties are free to agree upon the details of the process as it suits them. They may also
agree upon the parameters within which the arbitrator may give their decision.

The parties are compelled to abide by the arbitrator’s decision, which is final. There is no
right of appeal. If necessary, the arbitrator’s decision can be made a court order and can be
enforced in the usual way. If the arbitration agreement between the parties is in writing, it is
governed by the Arbitration Act 42 of 1965. The Act also regulates certain additional
matters.

Arbitration is often used in disputes regarding building contracts, contracts of sale, labour
disputes and disputes between partners. Disputes about marriage, status and criminal
matters may not be subjected to arbitration.

Arbitration has the advantages of being cheaper than litigation and of solving the dispute
more speedily. Furthermore, the parties have a free choice as to who the arbitrator is. They
also have a say regarding the nature of the proceedings. The disadvantage is that the
resolution, as in court, implies a win–lose situation.

3.2 Negotiation
Negotiation takes place when the conflicting parties talk to each other to find a solution that
satisfies them both. The parties themselves are in control of the whole process and
the eventual solution is their own. There is no third party involved. Because the solution has
to be acceptable to them both, the parties try to reach a situation where both of them win.
The purpose is, as far as possible, to find common ground. The parties must be serious in
their intentions to settle the matter. The process must not be used to create further
conflict. Mistrust and past conflicts can jeopardise the process.

The simplest form of negotiation is the one mentioned above; where the person talks to the
neighbours who keep her awake at night. In more complex situations, the parties may even
get lawyers to negotiate on their behalf. Often the lawyers of parties who are already
involved in litigation succeed in settling the dispute between them by means of negotiation.
Sometimes this happens just before the court gives judgment. At that stage, the legal costs
might have accumulated considerably. It is thus wise to start negotiation as soon as possible
(Kleyn & Viljoen, 2010:195).

3.3 Mediation
Mediation takes place in cases where the conflicting parties ask a third party, the mediator,
to assist them in finding a solution through negotiations. In other words, it amounts to
negotiation with the aid of a third party. The mediator does not hand down a decision, but
assists and encourages the parties to find a solution themselves. He or she acts as go-

Tel: +27 21 447 7565 | Fax: +27 21 447 8344

Website: [Link] | Email: info@[Link]
Page 8 of 13
between. The mediator usually communicates with the parties individually. Information
given by one party to the mediator is confidential and is not communicated to the other
party.

As go-between, the mediator assists the parties to consider all possible solutions. In this
way, the parties themselves find a solution. As in the case of ordinary negotiations, the
parties try to find a solution that is acceptable to both – where they both win. Unlike
arbitration, the decision is not left in the hands of a third party. For mediation to be
successful, the mediator must be impartial and have the trust of the parties.

Mediation is often used to resolve disputes in the commercial sector and in the world of
international politics. Mediation is also frequently utilised in family law cases like disputed
divorces. In a disputed divorce, parties will contest issues like future maintenance payments,
child custody and visitation rights and the distribution of the marital property. Parties can
avoid the considerable costs and trauma of an opposed divorce action by settling their
disputes beforehand through mediation (Kleyn & Viljoen, 2010:196).

In the Brownlee v Brownlee court case decided in 2008, the presiding officer made a
negative cost order against the lawyers who represented disputing parties in a divorce case
without first referring them to a mediator. Judge Brassey made the following remark
regarding mediation procedures:

Mediation can produce remarkable results in the most unpropitious of circumstances,

especially when conducted by one of several hundred people in this country who have been
trained in the process. The success of the procedure lies in its very nature. Unlike settlement
negotiations between legal advisers, in themselves frequently fruitful, the process is
conducted by an independent expert who can, under conditions of the strictest
confidentiality, isolate underlying interest, use the information to identify common ground
and, by drawing on his or her own legal or other knowledge, sensitively encourage an
evaluation of the prospects of success in the litigation and an appreciation of the cost and
practical consequences of continued litigation, particularly if the case is a loser.
In this particular case, the disputing parties could not agree on maintenance issues affecting
the minor children. The lawyers of the disputing parties did not refer them to a mediator
and, in the course of the dispute, the legal fees escalated. The judge remarked that if a
mediator was employed, the saving in legal costs and time would have been
significant. The judge penalised the lawyers by limiting the legal fees that could claim
from their clients:
What is clear however is that the attorneys did not provide this counsel. In fact, in the
course of the pre-trial conference, they positively rejected the use of the process, for this
they are to blame and they must, I believe, share the responsibility that comes from failing
properly to serve the interest of their clients. On this basis I propose to limit the fees that
they can recover from their clients.

The judgement made it clear that mediation can be put to good use in divorce matters and
in the case of a disputed divorce, mediation should be the first step employed to assist the
parties to work towards a mutually accepted memorandum of understanding. This would
result in cost-effective solution for the disputing parties.

Tel: +27 21 447 7565 | Fax: +27 21 447 8344

Website: [Link] | Email: info@[Link]
Page 9 of 13
3.3.1 Court-annexed mediation

Court-annexed mediation was introduced in civil proceedings on 1 December 2014. Parties

in civil disputes now have the option of referring a civil dispute to mediation.

Court-annexed mediation will assist litigants or potential litigants to resolve disputes of a

civil nature in a more cost effective and speedy manner by encouraging parties to settle
their dispute without resorting to litigation. In the Court-annexed Mediation Rules of the
magistrate’s courts, the main aims of court-annexed mediation are described as:

• Promoting access to justice;

• Promoting restorative justice;

• Preserving relationships between litigants or potential litigants which may become

strained or destroyed by the adversarial nature of litigation;

• Facilitating an expeditious and cost-effective resolution of a dispute between

litigants or potential litigants;

• Assisting litigants or potential litigants to determine at an early stage of the

litigation or prior to commencement of litigation whether proceedings with a trial
or an opposed application is in their best interest or not;

• Allowing litigants or potential litigants to return to litigation should the attempt at

mediation not be successful;

• Allowing litigants or potential litigants to dispense with litigation procedure and

rules of evidence; and

• Providing litigants or potential litigants with solutions to the dispute which are
beyond the scope and powers of the judicial officers.

Parties can decide to mediate at any time before litigation, or even after litigation has
commenced. A party may, before the trial commences, apply via the court’s dispute
resolution officer for mediation. A conference will then be held to discuss whether one or
more of the opponents agree to the mediation. After the trial has commenced but prior to
judgment being delivered, mediation is still possible provided that, where the trial has
commenced, the parties must obtain the authorisation of the court. A dispute may also be
referred to mediation by a judicial officer at any time after commencement of litigation if
the judicial officer believes that there is good reason for doing so.

If the parties agree to mediation, a signed written agreement will be undertaken. The parties
will then lodge statements of claim as well as statements in response thereto prior to the
commencement of the mediation (unless court pleading has already been filed). A mediator
will then be appointed i n a n a t t e m p t to resolve the dispute between the parties.
The parties will both contribute equally to the mediator’s fees which are set by tariff. If a
settlement is reached, the mediator will assist the parties with the drafting of a settlement
agreement. The parties may also be assisted by legal representation of their choice
provided that this is done at their own cost.

Tel: +27 21 447 7565 | Fax: +27 21 447 8344

Website: [Link] | Email: info@[Link]
Page 10 of 13
Even though court-annexed mediation is a relatively new initiative, there is hope that it will
alleviate the heavy burden of the civil courts by providing an alternative and less adversarial
method of resolving civil disputes.

3.4 ADR in South Africa

Kleyn and Viljoen (2010:196) state that ADR is not necessarily suitable for the resolution of
all disputes. Sometimes litigation in the courts is inevitable. But, when appropriate, ADR can
be applied very successfully. In general, ADR is becoming very popular in South Africa. There
are organisations that specialise in ADR and that provide professional services and
assistance, such as AFSA (Arbitration Foundation of Southern Africa), which focuses on
commercial and international arbitration, and the Association of Arbitrators, which
specialises in construction arbitration. Arbitration is often used by the Commission for
Conciliation, Mediation and Arbitration (CCMA) in instances of labour disputes between
employers and employees.

Figure 1: An insert from the Sunday Times in 1997. (Sourced from: Kleyn & Viljoen, 2010:196–197).

Tel: +27 21 447 7565 | Fax: +27 21 447 8344

Website: [Link] | Email: info@[Link]
Page 11 of 13
The parties must usually first attempt to resolve a labour dispute through ADR before it can
go to the labour court. Most large institutions with many employees have a bargaining
council to resolve labour disputes in this manner. In cases where no such bargaining council
exists, the Labour Relations Act has instituted the Commission for Conciliation, Mediation
and Arbitration (CCMA). The function of the CCMA is to try to resolve the dispute through
conciliation and, if unsuccessful, to arbitrate the matter. There are certain kinds of disputes
that the CCMA does not have the power to arbitrate. Those disputes must be referred to the
Labour Court.

The principle of ADR, in the sense of dispute resolution outside the framework of official
courts, is not a new concept in South Africa. In townships, it has been applied informally for
years. The earliest popular justice tribunals were formed in the Cape Town area in 1901. In
the late 1970s, courts known as “makgotla” gained prominence. Today, community courts
have replaced the people’s courts. Community courts play an important role in the
administration of justice. These courts are not politically aligned and parties voluntarily
subject themselves to their jurisdiction. Arbitrators who have been elected by the
community resolve disputes in these courts. Sometimes, when necessary, the community
courts liaise with the police.

In its 1997 report on ADR, the South African Law Reform Commission highlighted the
following advantages of community courts:

The advantages of a community court system seems to be that it depends on voluntary

participation, it is cheap and accessible, language is used which is understood within the
community, there is an absence of legalese, it creates the opportunity of relieving the
criminal justice system of certain disputes, it is based on restorative justice with its holistic
approach to problem solving, it is sensitive to local community values and background
conditions, there are fewer delays, therefore swift and less formal justice which helps in the
knitting of the social fabric.

Presently, community courts function quite successfully in some informal settlements where
there usually are no formal courts or adequate police services (Kleyn & Viljoen, 2010:198).

4. Conclusion
As both litigation and ADR are methods to resolve disputes, it is important for a legal
practitioner to distinguish between various courts’ jurisdictions and to understand the
limitations or challenges inherent in the process of litigation – challenges which can be
addressed by implementing popular ADR forms such as arbitration, negotiation and
mediation.

In this module, you:

• Learnt that the South African legal system has a hierarchy of courts.

• Saw that certain courts have jurisdiction over specific legal matters.

• Learnt that the Constitutional Court is the highest court of the land.

Tel: +27 21 447 7565 | Fax: +27 21 447 8344

Website: [Link] | Email: info@[Link]
Page 12 of 13
 • Discovered how alternative dispute resolution acts as another means of solving
disputes.

5. Bibliography
Kleyn, D.G. and Viljoen, F. 2010. Beginner's guide for law students. Juta and Company Ltd.

Tel: +27 21 447 7565 | Fax: +27 21 447 8344

Website: [Link] | Email: info@[Link]
Page 13 of 13