, LME3701 Assignment 2
Semester 2 2025
DUE September 2025
Use this document as a guide and for references to answer your assignment
Historical approach
Historical Development of Alternative Dispute Resolution in South Africa:
From Common Law Origins to Contemporary Reform
Introduction
Alternative Dispute Resolution (ADR) has become a cornerstone of access to
justice in democratic South Africa. While traditional litigation has long dominated
the legal landscape, ADR mechanisms such as mediation, arbitration, plea
bargaining, and restorative justice have steadily developed into credible alternatives
to court-based adjudication. South Africa’s ADR journey reflects broader shifts in
the legal system: from common law influences inherited during colonial and
apartheid eras, through the transformative 1996 Constitution, to current debates
surrounding the introduction of a dedicated Mediation Act. This essay adopts a
historical approach, tracing the development of ADR in South Africa from the
mid-20th century to the present day, focusing on legislative enactments, case law,
law reform initiatives, and judicial innovations. The analysis evaluates the
successes and limitations of ADR within South Africa’s evolving constitutional
democracy.
Early Foundations: Arbitration and Customary Dispute Resolution
Common Law and Arbitration Act 42 of 1965
The roots of ADR in South Africa can be traced back to arbitration under Roman-
Dutch common law. This was formalised through the Arbitration Act 42 of 1965,
which remains the foundation of domestic arbitration law. Although
groundbreaking at the time, the Act has since been criticised as outdated,
particularly given its limited alignment with international best practice.
, Customary Dispute Resolution
Parallel to formal legislation, South Africa has a rich tradition of customary
dispute resolution, where community leaders mediate and arbitrate disputes.
Historically, however, customary dispute resolution was marginalised under
apartheid-era policies that privileged statutory and common law mechanisms. Post-
1994, the Constitution (s 211) formally recognised customary law, reinvigorating
its role in community-based ADR.
Post-1994 Constitutional Developments
The Constitution of 1996
The advent of democracy and the Constitution of the Republic of South Africa,
1996 marked a turning point in ADR. The Constitution entrenches rights of access
to justice (s 34) and encourages efficient dispute resolution. This constitutional
framework legitimised ADR as consistent with democratic values of participation,
inclusivity, and fairness.
Labour Relations Act 66 of 1995
One of the earliest post-constitutional reforms was the Labour Relations Act
(LRA), which institutionalised mediation and arbitration through the Commission
for Conciliation, Mediation, and Arbitration (CCMA). The CCMA became a
leading model for statutory ADR, resolving thousands of labour disputes annually
in an accessible and cost-effective manner.
Criminal Justice and Plea Bargaining
The Criminal Procedure Act 51 of 1977 was amended in 2001 to introduce plea
bargaining (s 105A), representing a significant step in recognising ADR within
criminal justice. The system aimed to reduce backlogs, promote efficiency, and
provide mutually beneficial outcomes. While initially controversial, plea bargaining
has since become widely used, though concerns remain regarding power
imbalances between prosecution and accused.
Semester 2 2025
DUE September 2025
Use this document as a guide and for references to answer your assignment
Historical approach
Historical Development of Alternative Dispute Resolution in South Africa:
From Common Law Origins to Contemporary Reform
Introduction
Alternative Dispute Resolution (ADR) has become a cornerstone of access to
justice in democratic South Africa. While traditional litigation has long dominated
the legal landscape, ADR mechanisms such as mediation, arbitration, plea
bargaining, and restorative justice have steadily developed into credible alternatives
to court-based adjudication. South Africa’s ADR journey reflects broader shifts in
the legal system: from common law influences inherited during colonial and
apartheid eras, through the transformative 1996 Constitution, to current debates
surrounding the introduction of a dedicated Mediation Act. This essay adopts a
historical approach, tracing the development of ADR in South Africa from the
mid-20th century to the present day, focusing on legislative enactments, case law,
law reform initiatives, and judicial innovations. The analysis evaluates the
successes and limitations of ADR within South Africa’s evolving constitutional
democracy.
Early Foundations: Arbitration and Customary Dispute Resolution
Common Law and Arbitration Act 42 of 1965
The roots of ADR in South Africa can be traced back to arbitration under Roman-
Dutch common law. This was formalised through the Arbitration Act 42 of 1965,
which remains the foundation of domestic arbitration law. Although
groundbreaking at the time, the Act has since been criticised as outdated,
particularly given its limited alignment with international best practice.
, Customary Dispute Resolution
Parallel to formal legislation, South Africa has a rich tradition of customary
dispute resolution, where community leaders mediate and arbitrate disputes.
Historically, however, customary dispute resolution was marginalised under
apartheid-era policies that privileged statutory and common law mechanisms. Post-
1994, the Constitution (s 211) formally recognised customary law, reinvigorating
its role in community-based ADR.
Post-1994 Constitutional Developments
The Constitution of 1996
The advent of democracy and the Constitution of the Republic of South Africa,
1996 marked a turning point in ADR. The Constitution entrenches rights of access
to justice (s 34) and encourages efficient dispute resolution. This constitutional
framework legitimised ADR as consistent with democratic values of participation,
inclusivity, and fairness.
Labour Relations Act 66 of 1995
One of the earliest post-constitutional reforms was the Labour Relations Act
(LRA), which institutionalised mediation and arbitration through the Commission
for Conciliation, Mediation, and Arbitration (CCMA). The CCMA became a
leading model for statutory ADR, resolving thousands of labour disputes annually
in an accessible and cost-effective manner.
Criminal Justice and Plea Bargaining
The Criminal Procedure Act 51 of 1977 was amended in 2001 to introduce plea
bargaining (s 105A), representing a significant step in recognising ADR within
criminal justice. The system aimed to reduce backlogs, promote efficiency, and
provide mutually beneficial outcomes. While initially controversial, plea bargaining
has since become widely used, though concerns remain regarding power
imbalances between prosecution and accused.
