Reforming the approach to mediation legislation in South Africa: a comparative analysis
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Date
2023
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Universty of the Western Cape
Abstract
The Constitution of the Republic of South Africa, 1996, is the cornerstone of the country's legal framework, establishing fundamental human rights, including the right to access to justice. Section 34 of the Constitution unequivocally states that every individual has the right to a fair and public hearing before a court or an independent tribunal. This right is seen as an inherent constitutional guarantee, reflecting South Africa's commitment to democracy and justice. However, the South African civil justice system grapples with persistent challenges and operates under considerable strain. Delays in case resolutions, exorbitant litigation costs, uncertainty surrounding outcomes, and the intricacies of the legal process have cast a shadow over the system. The proliferation of cases, leading to overcrowded court dockets, has placed a significant impediment on individuals' access to justice. Alternate Dispute Resolution (ADR) encompasses a gamut of informal dispute resolution methods outside the conventional court system. Among these, mediation, arbitration, and conciliation stand out in South Africa. Mediation, in particular, emerges as a valuable ADR tool, providing a platform for parties to resolve disputes through a neutral third party, fostering confidentiality, and voluntary engagement. In contrast to other ADR methods, mediation refrains from determining right or wrong; instead, it aims to nurture mutual understanding and the acceptance of differences.
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Keywords
Court-annexed, Regulated mediation, Malaysian Judiciary, Alternate Dispute Resolution, Labour law