A comparative analysis of the practice of family mediation with particular reference to African customary mediation.
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Date
1997
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Abstract
Family mediation is a process that' was and is still practised by African
indigenous societies. However, mediation in relation to family and divorce
matters, is viewed either positively or negatively by most South African writers
mainly from a Western perspective.
The recommendations made in this work focus, amongst other things, on what
ought to be done by policy makers and exponents of mediation in order to
make the ,benefits of mediation realised by South Africans particularly
disadvantaged communities.
The role of illiterate and semi-literate South African citizens)'is pointed out as
being critical more in managing family disputes from disfunctioning the family
and leading to marriage break-down than merely mediating the parting of ways
and ancillary issues of marriage.
The practice of family mediation and procedures followed by Africans when
introducing the son-in-law to the daughter-in-Iaw's family and the protracted
marriage negotiations between Umkhongi (emissary) and the in-laws are all
indicative of the entrenched or mandatory approach to family mediation.
The benefits of the peaceful ending of marriage relationship through third party
interveners are highlighted in President Mandela's desire to terminate his
marriage as 'painless as possible' particularly for the sake of children.
It is pointed out in this work that the Bushmen of the Kalahari Desert still
adhere strictly to their tribal mediation procedures both in relation to family
disputes and disputes in general. The tribe relies highly on korakoradue who is
its senior citizen and respected elder, as resolver of community disputes.
III
The South African Justice Department brought hope when it worked toward
introducing divorce mediation legislation. However, the vision was misdirected
as the enacted family mediation legislation turned out to be constraining in its
operation contrary to the recommendations by the Hoexter Commission. The
majority of destitute South Africans who should be benefiting from this
legislation end up not knowing about the existence of the Act and/or not making
use of it because of the costs involved as only the Supreme Court can
adjudicate upon matters covered by the Act.
The lack of research which focuses on local mediation styles makes it difficult
to justify, for example, either Mrs. Mandela's claim when she said ,Mr. Mandela
had not answered to the 'African Cultural and Traditional Inkundla' or Mr.
Mandela's defence that he respects customs but is not a 'tribalist' as he 'fought
as an African Nationalist with no commitment to any tribal custom'.
Description
Thesis (LL.M.)-University of Durban-Westville, 1997.
Keywords
Customary law--South Africa., Family mediation--South Africa., Theses--Law.