Fellow Since 1992
This profile was prepared when Paul Pretorius was elected to the Ashoka Fellowship in 1992.
The New Idea
Where there has been exclusion, let active participation of the excluded be the first principle of the new order. Where there has been gross imposition of foreign, often arrogant, juridical norms, let there be a comprehensive effort to understand and respect the informal systems of dispute resolution pre-existing in the community. Where there have been few viable alternatives to harsh and unjust laws, create a transitional framework that provides the broadest possible range of forms of dispute resolution so that ordinary citizens may exercise a meaningful choice as they redesign the legal system. These radical ideas guide Paul Pretorius as he works with other progressive lawyers, popular community organizations, and university-based legal researchers to establish community-based dispute resolution centers in urban black townships. These centers will be guided by contemporary alternative dispute resolution (ADR) techniques. Current ADR practice aims to help the parties of a conflict shift their point of reference from stated positions (which are often fundamentally irreconcilable) to their actual interests (which more often than not stand on some common ground). Once this step is taken, commonality of actual interest opens the way to resolution. Staffed by trained community residents, the dispute-resolution centers will, in the first instance, diagnose the essential character of community disputes brought to them. They will then refer disputes to appropriate vehicles for resolution, including counselling, mediation, arbitration, and litigation. All of the mediators and many of the arbitrators operating under the aegis of the local dispute-resolution centers will be selected and trained from among the respected members of the communities involved. Disputes involving complex questions of law may best be referred to legal practitioners who may reside outside the community. The community dispute resolution centers may be regarded as an alternative to the "people's courts" that emerged as a form of popular justice during the township anti-apartheid uprisings of the mid-1980s. The people's courts were themselves preceded by traditional tribal community dispute resolution forums known as MaKgotla or inKundla. But in the highly politicized and polarized context of urban townships in the mid-1980s, people's courts lost almost any resemblance to traditional deliberative methods that had evolved in stable, predominantly rural villages. Of necessity, the people's courts operated clandestinely, and sometimes came to be seen as arbitrary or partisan. Sentences were inconsistent and corporal punishment became the most common penalty. On the positive side, they did carry more social legitimacy than state structures and drew constructively on the powerful social pressures generated by a broadly popular political insurrection. Like formal courts, the new centers for community dispute resolution will provide the technical expertise and consistency of standards and practice that together may constitute fair process. But unlike the judicial order under apartheid, they will represent a direct and organic relationship with black society.