OWAMI NTIMBA: ST10043884

MEDIA LAW AND ETHICS: MELE6221

ASSIGNMENT 1
The South African courts, both civil and criminal, are in charge of overseeing out the country's legal
system. They are constituted in accordance with the South African Constitution or Acts of the
Parliament of South Africa and apply South African law (Department of Justice and Constitutional
Development, 2022). In South Africa, alternative dispute resolution (ADR), which refers to any
technique of resolving conflicts outside of the conventional court system, is being accepted and
employed as a way to resolve issues swiftly, affordably, and cooperatively (Pius, 2020). Some of the
most recognised forms of ADR include arbitration, conciliation and mediation. In the course of this
essay, I will discuss the various resolution processes in South Africa, with particular emphasis on
mediation as a resolution mechanism. In addition, I will also provide my own viewpoint and
perspective on the role that values play in enabling or frustrating dispute resolution.

The South African Court Structure

The South African judicial system is hierarchical, which means that state courts have varying degrees
of power and jurisdiction. According to Theophilopoulos et al (2006), the term "jurisdiction" refers to
a court's authority or competence to hear a case that has been formally brought before it and issue
relief related to that case. The Constitutional Court is located at the top of the hierarchy, which is
followed by the Supreme Court of Appeal, High Courts, Magistrate's Courts, and Small Claims Courts.
Stare decisis is a fundamental rule of law, which states that the Court upholds its previous court
decisions barring instances in which the ruling is found to be blatantly untrue. When a decision was
made based on a fundamental departure from principle, a manifest oversight, or a
misunderstanding, or when there was something resembling a palpable error, it will be considered
to have been completely wrong and unacceptable. The stare decisis principle serves as the
foundation for judicial precedent. In practice, the law established in a previous case is applied in
subsequent cases involving the same material facts. Thus, a judicial precedent is established, and the
law is implemented (Fryer et al., 2017).

Alternative Dispute Resolution Process

Alternative dispute resolution (ADR) focuses on the course of action that can be employed to settle
disputes without having to go to court. These approaches are frequently preferred because, in many
cases, they offer a more cost-effective alternative to litigation and the process is completed more
quickly than it would take in court (Fryer et al., 2017). ADR avenues include arbitration, mediation,
and conciliation. Arbitration refers to the selection of a neutral third party by the disputing parties.
The arbitrator's judgment is conclusive and enforceable. This means that neither party may
challenge the arbitrator's ruling. However, if one of the parties believes that there were procedural
flaws during the arbitration proceedings, that party may petition the High Court with competent
jurisdiction for a review. This process is governed by the Arbitration Act 42 of 1965. Section 1 of this
Act defines arbitration proceedings as actions taken by an arbitration tribunal to settle a dispute
through arbitration that has been referred to arbitration in accordance with an arbitration
agreement. An arbitrator, arbitrators, or umpire working in accordance with an arbitration
agreement constitutes an arbitration tribunal. Arbitration simulates a courtroom setting with
lawyers on each side and a neutral decision-maker, which is in contrast with mediation that
advocates for the involved disputing parties to communicate and reach an agreement. The primary
role of a mediator is to stimulate conversation, rather than assessing the result. In other words, a
mediator encourages conversation between the conflicting parties involved in an effort to find
common ground so that the parties can come to an understanding and establish a solution on how
to resolve the conflict on their own. That particular approach of resolving conflicts is usually always
quicker, less expensive, and more adaptable (The Economist, 2007). If the opposing parties do
manage to come to an understanding, it is formalized in a settlement agreement that is enforceable
in the court of law as a contract. Should the parties concur, the settlement agreement may be issued
as a court order. The mediator may be chosen by the parties cooperatively or may be found through
a reputable organization, such as the South African Association of Mediators (SAAM). It is
mandatory for a mediator to have undergone training and they will bill for the services that they
offer. The process of mediating disputes is less formal, cost effective, and frequently finalized in a
few short weeks. In South Africa, conciliation is a procedure formalised in terms of section 133 of the
Labour Relations Act 66 of 1995. The process takes place within the jurisdiction of the Commission
for Conciliation, Mediation, and Arbitration (CCMA), and it entails the appointment of a
commissioner to facilitate amicable settlement between the parties to a labour dispute. The primary
objective of conciliation is to swiftly and economically settle disputes. The commissioner typically
meets with both parties at first, and then they may meet separately if neither party has legal
representation. All relevant information should be disclosed, and whenever possible, the parties
should consider a settlement. The parties are encouraged to feel at ease throughout the entire
process, and any information disclosed is executed in a private and confidential manner. The process
to be followed at the conciliation hearing is decided by the commissioner, who may also decide to
use mediation. A settlement agreement will therefore be created by the commissioner if the dispute
is settled, which will be signed by the involved parties. A conciliation agreement is enforceable and
may be turned into a court order. Conciliation has no time limit, and its primary objective is to
employ every possible strategy of negotiation. The commissioner will issue a certificate of non-
resolution in the event that the dispute cannot be settled, and arbitration may be considered (Fryer
et al., 2017).
Mediation as a resolutive mechanism and conflicting views

Alternative Dispute Resolution (ADR) mechanisms are available to members of the public who do not
want to use the traditional approach or who want to settle their dispute without the involvement of
the courts. Like any other process, these mechanisms have benefits and drawbacks of their own. The
fact that this is only one of the crucial objectives must be emphasized, especially in the context of
mediation. Other instrumental and intrinsic functions that mediation performs as a procedural
intervention in the legal system are at least as important as, if not more so than, these more obvious
ones. Mediation serves an instrumental purpose and provides a way to achieve objectives that have
been set. The value of mediation as a means in and of itself is emphasized by its inherent purpose.
The parties to the dispute are in charge of defining the issue, establishing the agenda, and reaching a
consensus on the solution. Only when the parties have reached an understanding can the mediation
process be initiated. Without both parties intending to resolve the conflict, mediation will not
commence (Padhye, 2018). Both parties must cooperate during the mediation process. The
mediation process may fail or result in a breach of the mediation agreement if the parties involved
are unable to come to a settlement. The current dispute between University of Cape Town (UCT) and
its students is a reflection of a breach of mediation agreement. The agreement between the Student
Representative Council (SRC) and UCT was that both parties would be "committed to taking
reasonable measures to ensure the academic success of each student", the SRC said, as well as to
"provide full access to the educational resources and academic activities" for the year. The SRC
reported that a number of students had received letters of financial exclusion from the university,
and the student body claimed that the administration was "not negotiating in good faith." Following
the failure of mediation efforts between the university and the student representative council (SRC),
protests were held by students at the University of Cape Town (UCT). Many of the frustrated
students who received eviction notices set fire to property, tipped tables and trash cans, and caused
disturbances on the university grounds (McCain, 2023). According to the Department of Justice and
Constitutional Development, in the event that an agreement is still not translated into a court order
and a party violates it, then the prejudiced party may apply to the court to have the agreement
made into a court order and to have the terms of the particular agreement enforced.

The execution of a mediation can be affected by several factors such as values, which can play a
significant influence in enabling or frustrating dispute resolution. Values are internalized cognitive
structures that direct behaviour and decision-making by evoking a sense of fundamental moral
principles, a sense of priorities, and a willingness to interpret the world in meaningful ways and
recognize patterns (Oyerserman, 2015). These beliefs may influence how parties approach
disagreements, how they cooperate with one another, and ultimately whether they are able to
come to a resolution. When people share similar values, it can be helpful in enabling dispute
resolution as it builds a foundation for mutual understanding, assurance and trust. The disputing
parties are more likely to approach the conflict at hand in a constructive manner and subsequently
productively work towards finding a mutually beneficial solution if they share similar values and
beliefs. Values can act as a mediator in these situations, allowing the parties to communicate more
effectively and come to an understanding. Contrary to having similar values, conflicting values can
impede the resolution of disputes by posing obstacles to communication and comprehension.
Disputing parties may find it challenging to understand one another's point of view or to reach an
understanding if their values are fundamentally at odds. In some circumstances, values may be so
strongly held that they become inherent, making it challenging or impossible to come to a
consensus. For instance, in a disagreement over a business agreement, one party may place the
highest value on profit while the other place the highest value on social responsibility. Finding a
compromise that pleases both stakeholders may be challenging if these values are strongly held and
non-negotiable.

For citizens and organizations looking to settle disputes, South Africa provides a variety of dispute-
resolution mechanisms. Due to its efficiency in terms of time, money, and maintaining relationships
between the parties, mediation is widely utilised in South Africa. Mediation aims to resolve conflicts
between individuals or groups of individuals or to bring about agreements. However, the execution
of a mediation can be affected by factors such as values which have a significant influence in
facilitating or hindering conflict resolution, thus it's essential that they are appropriately understood
and utilized in order to foster a climate in which disagreements can be settled in a fair and equitable
manner.
Reference List

Britz, S. 2018. Mandatory mediation as a dispute resolution mechanism in the civil justice system.
(M.L.). University of the Free State.

Department of Justice and Constitutional Development. 2022. Courts in South Africa. [Online].
Available at: https://www.justice.gov.za/about/sa-courts.html

Fryer, J., Glazer, S., Ragowski, A. 2017. Media Law & Ethics. 3rd ed. Cape Town: Edge Education.

The Economist. 2007. ‘Knocking heads together: Why go to court when you can settle cheaply,
quickly and fairly elsewhere?’ [Online] Available at: http://www.economist.com/node/8633318

McCain, N. 2023. Protest action at UCT amid SRC claims of breach in mediation agreement. News 24,
18 April 2023. [Online]. Available at: https://www.news24.com/news24/southafrica/news/protest-
action-at-uct-amid-src-claims-of-mediation-agreement-breach-20230418

Padhye, A. 2018. Mediation: an effective alternative dispute resolution mechanism, The Lex-
Warrier: Online Law Journal. 7, pp. 338 – 345, ISSN (O): 2319-8338

Pius, I. 2020. Integrating Alternative Dispute Resolution into South African Criminal Jurisprudence:
An Urgent Need for Law Reforms. Notizie di Politeia. 38. 21. 10.25159/0256-8845/4611.

Theophilopoulus, C., Roman, A.W.T., Van Heerden, C. M. and Boraine, A. 2006.Fundamental

Principles of Civil Procedure. Durban: LexisNexis.