A critical analysis of tribunals in South Africa

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General historical overview of tribunals

It is a fact that the very idea of society would not have been possible without a minimum level of order and agreements to regulate human relationships and settle disputes. These agreements were originally achieved through what is known as the social contract, as theorised by Locke, Rousseau and Hobbes. Historically, the beginnings of tribunals can be traced back to the ancient Greek and Roman civilisations in the era before Christ. These civilisations were the founders of legal systems. The earliest documented tribunals were held in Koresos in 402 BC, namely the Athenian tribunals. These tribunals deliberated upon matters in a speedy manner, which is a common characteristic of current-day tribunals.
Furthermore, the marketplace of the Greek mainland and islands in the third millennium before Christ was also known as the arena where ‘community leaders – tribal kings or princes, or priests, or elders renowned for their oratory and practical reason-gathered to dispense advice and adjudicate disputes’. In the Roman Empire there is reference to the plebeians appearing before a tribunal to settle disputes. This Roman tribunal was a forum for the disputes of the common people, where the Roman advisors and the emperor solved such matters vigorously. These characteristics are important, because the same characteristics were maintained within a South African context. It is apparent that tribunals have always existed in all shapes and forms as an alternative to the judicial system.

Historical tribunal periods in South Africa

The history of tribunals in South Africa can be divided into three significant periods, namely the pre-colonial era, during colonisation and after colonisation, which is the present-day democracy. The significance of these periods illustrates the evolution of tribunals in a South African context.

Tribunals in the pre-colonial era

During the pre-colonial era in South Africa, which is prior to 1652, the indigenous people were governed by indigenous law, customs and practices. There is evidence that a variety of indigenous tribes inhabited the territory of southern Africa. During this period, law was communicated orally and not in writing. Three approaches to indigenous law were developed, namely the trouble-case method, the rules-centred approach and the contextual approach. The trouble-case method is the study of case studies and the daily life of communities. The rules-centred approach consists of western concepts and framework in explaining indigenous law. The contextual approach aims to identify the storyteller, who gives the story context, power and meaning.
The first approach, or trouble-case method, is used to explain the way of life of the different tribes as well as their characteristics and powers. As a matter of fact, the tribal governance systems were varied: the Cape Khoi and San tribes were nomadic hunter-gathers who lived off the land in harmony with the environment. They laid no proprietal claim to territory. At a later time , the Griquas, Xhosas and Zulus, as well as other tribes, settled in the area.

The Zulus (in what is now KwaZulu-Natal) and the Xhosa (in what is now the Eastern Cape) were governed under kingship. The elders of the tribe advised the king on issues of governance, and there were also the chiefsman and headsman of the respective kraals. When conflicts arose, they would be resolved through ADR methods of negotiation and mediation, as well as through a tribunal system. Although it was not referred to as a ‘tribunal’, a tribunal is a term that originated etymologically from the Latin word tribunus and was used by western civilisation. The indigenous system of settling disputes was cast in endogenous knowledge, which consists of both indigenous and cultural knowledge, which are alive and influenced by the surroundings and the people, which are ever changing and adapting to the environment.
The second approach, or the rules-centred approach, to explain the term lekgotla, which is also referred to as inkundla, is that it is the singular of the word makgotla, meaning the people’s court. The term is described by Blaine as ‘open tribunals following unwritten law and custom having for precedents the judgments of past chiefs…’. It is important to observe that the word ‘tribunal’ is interchangeable with peoples’ court. The makgotla did not function in the same manner as the western court, because the whole community cross-examined the perpetrator or victim. For all purposes, the people’s court is best described for these purposes as a tribunal in both function and procedure, to circumvent any confusion. Thus the term was further expanded by Comaroff and Roberts, who define lekgotla as a body of ‘all advisors and headmen’. This body met periodically to deal with policy and administration matters, as well as to settle disputes. Furthermore, ‘the procedure tends to be quite flexible: the chief makes opening and closing statements. Free speech is encouraged, and the chiefly decisions, announced at the end, are expected to reflect the weight of all manifest opinion’.

Part 1: An Introduction to the Study
Chapter 1: Introduction
1. Background
1.1 Overview of study
1.2 Choice of domestic tribunals
1.3 Choice of comparative study
1.4 Tracing the evolution of tribunals
1.5 Distinction between courts and tribunals
1.6 Alternative dispute resolution
1.7 Access to justice
1.8 The different type of tribunals
1.9 Administrative justice
1.10 Proposal of a unified tribunal system as opposed to a cluster tribunal system
2. Research statement
3. Research question
4. Research objectives
5. Research methodology and approach
6. Overview of chapters
7. Significance of this study
8. Limitations of this study
Part 2: Historical Study of Tribunals
Chapter 2: Historical milieu of tribunals in South Africa
1. Introduction
2. General historical overview of tribunals
3. Historical tribunal periods in South Africa
3.1 Tribunals in the pre-colonial era
3.2 Tribunals during colonisation
3.3 Tribunals after colonisation
4. The importance and role of a unified tribunal system
5. Concluding observations on the historical milieu of tribunals
Part 3: Tribunals in South African Law
Chapter 3: General framework of tribunals in South Africa
1. Introduction
2. General framework of tribunals
3. Section 33 of the Constitution of the Republic of South Africa, 1996
4. Section 34 of the Constitution of the Republic of South Africa, 1996
5. Characteristics of a tribunal
5.1 Functions
5.2 Quasi-judicial
5.3 ADR in tribunals
6. Administrative law and administrative justice in relation to tribunals
7. The distinction between courts and tribunals
8. An overview of common features and common objectives of tribunals
9. Concluding observations on a general framework to tribunals
Chapter 4: South African tribunals forming part of this study
1. General introduction
2. Rental Housing Tribunal (RHT)
2.1 Overview
2.2 The historical significance of the RHT
2.3 Rental Housing Act of 1999: key provisions
2.4 Rules of the RHT: regulating the procedure
2.5 Deconstructing the RHT
2.6 Common objectives of tribunals
2.7 Common features of tribunals
2.8 Concluding observations on the RHT
3. Companies Tribunal
3.1 Overview
3.2 The historical significance of the Companies Tribunal
3.3 Companies Act: key provisions
3.4 Companies Tribunal: regulating the procedure
3.5 Deconstructing the Companies Tribunal
3.6 Common objectives of tribunals
3.7 Common features of tribunals
3.8 Concluding observations on the Companies Tribunal
4. Competition Tribunal
4.1 Overview
4.2 The historical significance of the Competition Tribunal
4.3 Competition Act: key provisions
4.4 Competition Tribunal: regulating procedure
4.5 Deconstructing the Competition Tribunal
4.6 Common objectives of tribunals
4.8 Concluding observations on the Competition Tribunal
5. National Consumer Tribunal (NCT)
5.1 Overview
5.2 The historical significance of the NCT
5.3 The Consumer Protection Act and the National Credit Act: key provisions
5.4 The NCT: regulating procedure
5.5 Deconstructing the NCT
5.6 Common objectives of tribunals
5.7 Common features of tribunals
5.8 Concluding observations on the NCT
6. Water Tribunal
6.1 Overview
6.2 The historical significance of the Water Tribunal
6.3 The Water Act: key provisions
6.4 The Water Tribunal: regulating the procedure
6.5 Deconstructing the Water Tribunal
6.6 Common objectives of tribunals
6.7 Common features of tribunals
6.8 Concluding observations on the Water Tribunal
7. Concluding observations of tribunals forming this study
Part 4: A Comparative Study
Chapter 5: Foreign tribunal systems
1. Introducing the foreign tribunal systems
2. The French tribunal system
2.1 Overview
2.2 History of the tribunal system
2.3 Operation of the tribunal system
2.4 Jurisdiction
2.5 Rules of Procedure
2.6 Tiers of the system
2.8 Concluding observations on the French system
3. The Australian tribunal system
3.1 Overview
3.2 History of the tribunal system
3.3 Operation of the tribunal system
3.4 Jurisdiction
3.5 Rules of procedure
3.6 Tiers of the tribunal system
4. The tribunal system in the United Kingdom 
4.1 Overview
4.2 History of the tribunal system
4.3 Operation of the tribunal system
4.4 Jurisdiction
4.5 Rules of Procedure
4.6 Tiers of the tribunal system
4.8 Concluding observations on the UK system
5. Concluding observations on the comparative study
5.1 Common trends amongst foreign systems
6. Findings of the comparative study
Part 5: Access to Justice in the Tribunal System
Chapter 6: Enhancement of access to justice in the SA tribunal system
1. Introduction
2. Access to justice in the SA tribunal system compared to foreign systems
2.1 The French system
2.2 The Australian system
2.3 The UK system
3. The South African Tribunal System (SATS)
4. Adopting ADR mechanisms in tribunals
5. Enhancing access to justice in tribunals
6. A unified tribunal system and its procedures
7. Concluding observations on the function of access to justice in the SA tribunal system.179
Part 6: Conclusion and Recommendations
Chapter 7: Conclusion of the study
1. Introduction
2. Impact of the comparative study in a South African context
3. Proposal for a reformed tribunal system
3.1 Uniform rules of procedure
3.2 ADR mechanisms in tribunals
3.3 Addressing shortcomings of the tribunal system
3.4 The SATS
4. Recommendations
5. Concluding observations
Annexure: Tribunal Rules and Statistics in this Study



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