INTRODUCTION
The word ‘tribunal’ is a Western term, with the inception of this particular form of adjudication arising from the governance of ancient Greece.Footnote 1 In an African context, however, the term was not employed in indigenous traditional systems, which relied on a practice known as makgotla (meeting), which fostered the principles of ubuntu.Footnote 2 Ubuntu encourages the nurturing of community development with this development being accomplished by recognising an ethical standard of common humaneness.Footnote 3 The practice of ubuntu espouses alternative dispute resolution (ADR) mechanisms in the mediation of disputes.Footnote 4 It is apparent that ‘At the heart of African adjudication lies the notion of reconciliation or restoration of harmony.’Footnote 5 However, although the term ‘tribunal’ is not used in the oral tradition of indigenous communities, it is evident that there were indeed structures akin to tribunals to resolve disputes. This article therefore focuses on the historical journey of tribunals from a South African perspective, and analyses Church tribunals regarding their functions, characteristics and daily operations.
It is a fact that the very idea of society would not have been possible without a minimum level of order and agreements to regulate human relationships and settle disputes. These agreements were originally achieved through what is known as the social contract, as theorised by Locke, Rousseau and Hobbes.Footnote 6 Historically, the beginnings of tribunals can be traced back to the ancient Greek and Roman civilisations in the era before Christ, both of which were the founders of legal systems.Footnote 7 The earliest documented tribunals – the Athenian tribunals – were held in Koresos in 402 bc.Footnote 8 These tribunals deliberated upon matters in a speedy manner, which is a common characteristic of present-day tribunals.Footnote 9 Furthermore, in the first millennium bc, marketplaces on the Greek mainland and islands became known as the arena where ‘community leaders – tribal kings or princes, or priests, or elders renowned for their oratory and practical reason-gathered to dispense advice and adjudicate disputes’.Footnote 10 In the Roman republic there is reference to the plebeians (the common people of Rome) appearing before a tribunal to settle disputes.Footnote 11 This Roman tribunal was a forum for the disputes of the common people, where the tribunes resolved such matters rapidly.Footnote 12 These characteristics are important, because the same ones were maintained within a South African context. Thus it is apparent that tribunals have always existed in all shapes and forms as an alternative to the judicial system.
HISTORICAL TRIBUNAL PERIODS IN SOUTH AFRICA
The history of tribunals in South Africa can be divided into three significant periods, namely the pre-colonial era, during colonisation and after colonisation, which is the present-day democracy. The significance of these periods illustrates the evolution of tribunals in a South African context.
Tribunals in the pre-colonial era
During the pre-colonial era in South Africa (before 1652), the indigenous people were governed by indigenous law, customs and practices.Footnote 13 There is evidence that a variety of indigenous tribes inhabited the territory of southern Africa.Footnote 14 During this period, law was communicated orally and not in writing.Footnote 15 Three approaches to analysing indigenous law were developed, namely the trouble-case method, the rules-centred approach and the contextual approach. The trouble-case method focuses on case studies and the daily life of communities. The rules-centred approach consists of the use of Western concepts and frameworks to explain indigenous law. The contextual approach aims to identify the storyteller, who gives the story context, power and meaning.Footnote 16
The first approach, the trouble-case method, is used to explain the way of life of the different tribes as well as their characteristics and powers.Footnote 17 Tribal governance systems varied: the Cape Khoi and San tribes were nomadic hunter-gathers who lived off the land in harmony with the environment and laid no proprietary claim to territory.Footnote 18 At a later time, the Griquas, Xhosas and Zulus, as well as other tribes, settled in the area.Footnote 19 The Zulus (in what is now KwaZulu-Natal) and the Xhosa (in what is now the Eastern Cape) were governed under kingship.Footnote 20 The elders of the tribe advised the king on issues of governance, and there were also the chiefs and headsmen of the respective kraals.Footnote 21 When conflicts arose, they would be resolved through ADR methods of negotiation and mediation, as well as through what amounted to a tribunal system.Footnote 22 The indigenous system of settling disputes was cast in endogenous knowledge, which consists of both indigenous and cultural knowledge, which are alive and influenced by the surroundings and the people, which are ever-changing and adapting to the environment.Footnote 23
The second approach, the rules-centred approach, is summarised in the term lekgotla (also referred to as inkundla), the singular of the word makgotla, meaning the people's court.Footnote 24 The term is described by Blaine as ‘open tribunals following unwritten law and custom having for precedents the judgments of past chiefs’.Footnote 25 It is important to observe that the word ‘tribunal’ is interchangeable with people's court. The makgotla did not function in the same manner as Western courts, because the whole community cross-examined the perpetrator or victim.Footnote 26 The people's court is best described for these purposes as a tribunal in both function and procedure, to circumvent any confusion. Thus the term was further expanded by Comaroff and Roberts, who define lekgotla as a body of ‘all advisors and headmen’.Footnote 27 This body met periodically to deal with policy and administration matters, as well as to settle disputes. Furthermore, ‘The procedure tends to be quite flexible: the chief makes opening and closing statements. Free speech is encouraged, and the chiefly decisions, announced at the end, are expected to reflect the weight of all manifest opinion.’Footnote 28
The third, contextual, approach is used to explain the principle of ubuntu in the following terms:
In the traditional African view, human existence is seen as unified, interconnected, and integrated. This view recognizes the dialectics in any given system (union of opposites – i.e., the good and the bad). To be out of harmony is regarded as harmful to the well-being and survival of the whole. In the siNtu custom, ubuntu as a concept permeates the whole fabric of society, thus yielding ‘both/and’ conclusions, contrasted with the Christian idea of good or evil with its ‘either/or’ conclusions.Footnote 29
The principle of ubuntu, which is believed to hold the African traditions and perspectives together, amounts to the ‘collective personhood’, or the ‘art or virtue of being human’. In this regard, the principle encourages the resolution of disputes through forums such as makgotla, or tribunals, to engage with the community and the victims or complainants to resolve disputes among the tribe. The strategy adopted to resolve the dispute is to attain a win–win outcome for both parties (identified as collaboration in the Thomas–Kilmann model). This resolution mechanism aims to encourage the restoration of unity, as one break in the group causes a detrimental effect for everyone. The collective strength of a tribe is fostered through the principle of ubuntu, as encapsulated in the Nguni proverb ‘umuntu ngumuntu ngabantu’ (‘I am because we are’). This means that society consciously takes responsibility for its ‘persons’ product’.Footnote 30
Masina provides a number of case studies that yield more insights:
In some cases where ubuntu functioned in conflict resolution situations during precolonial times, differences of opinion were settled amicably by means of dialogue within the community under the leadership of an authority figure. The fine imposed was generally in the form of cattle; capital punishment was rare. In other cases, punishment was absolute and automatic because the offense was beyond the pale of acceptable behaviour. In a third group, conflict was unmanageable and carried out to its own resolution.Footnote 31
Thus the role played by ubuntu was pivotal in the successful resolution of disputes. However, despite the relevance of the principle of ubuntu in fostering and building relationships, ubuntu does not guarantee resolution in all scenarios, and this may explain the emergence and development of tribunals during colonisation.
Tribunals during colonisation
The recognition of tribal practices and customary/indigenous law was marred by a history of oppression and strife.Footnote 32 The Dutch representatives of the East India Company arrived at the Cape in 1652 and brought with them Roman Dutch law.Footnote 33 The British took control of the Cape in 1814, as the right to the territory was ceded to them by the Dutch. Under British rule, the laws of the colonies remained in force because Roman Dutch law was considered to be a civilised system. As a result, other practices (such as customary practices) were ignored or became established under a policy of non-recognition, which meant that tribal practices were ignored and their independence of leadership was not recognised. Ordinance 50 of 1828 enabled the thrust of the policy of non-recognition.
In 1846, after the War of the Axe, the non-recognition policy was abandoned, as the traditional rulers held authority over the subdivided areas of their people. In 1854, subjects within the dependency of Kaffraria were encouraged to relinquish tribal ways in favour of Christianity and the British notions of civilisation. In 1864, the government passed the Native Succession Act 10, which allowed the courts to apply customary law in South Africa. Despite this legislation, Kaffraria was incorporated into the Cape, where the policy of non-recognition remained in force until 1927. From 1877 to 1894, the Transkei territories were brought under colonial rule. This resulted in a shift in certain policies, which until then had remained unchanged. As a consequence, the authorities in the Cape reconsidered their stand and allowed customary law to be applied in courts, though confining it to the following limitations: ‘Specific practices, such as initiation dances and witchcraft, were prohibited, but, more generally, application of customary law was subject to an overriding proviso that it was compatible with “the general principles of humanity” observed throughout the civilized world.’Footnote 34
In 1910, a few of the southern African colonies formed the Union of South Africa.Footnote 35 As time went by, people agreed to settle their disputes in an unconventional manner, which at the time was unrecognised and informalised. In other words, despite the presence of courts to address issues and resolve conflicts in society, the emergence of parallel structures to resolve conflict became noticeable. By 1960, the idea of tribunals had sufficiently evolved, as is evident in the following observation:
The new interest in dispute processing in the 1960s led to a discovery that many if not most, disputes were being dealt with by unofficial tribunals to the apparent satisfaction of the parties concerned. And during the 1970s it became evident that in the urban areas of South Africa an amazing variety of tribunals was flourishing alongside the state courts.Footnote 36
In 1927, the government introduced the Native Administration Act 38 to restore the full authority of customary law across the country. The Act also instituted a separate system of courts made up of traditional leaders and native commissioners. These two institutions had a distinct role. On the one hand, the courts of traditional leaders were assigned the responsibility to rule based on customary law only. On the other hand, the courts of native commissioners, along with the Appeal Court, could rule based on either customary law or common law in any ‘suits or proceedings between Natives involving questions of customs followed by Natives’.Footnote 37 It is worth noting that sections 30 and 31 of the interim Constitution of 1993 set out the basis for the application of customary law, which recognised that customary law was no longer to be confined to race, thereby expanding its relevance. The interim Constitution further allowed and empowered litigants to demand respect for their culture.Footnote 38
During the colonial period, the tribunal system was strongly developed within the Church through the establishment of Church tribunals. At the same time, the role of customary law and ADR was also important. ADR was developed to settle categories of disputes that were not brought before either courts and tribunals. The idea of ADR was properly formalised around the 1960s in South Africa, with a strong emphasis on arbitration. In 1965, the Arbitration Act 42 was enacted to regulate ADR. In addition, in 1976 the country joined the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards and issued the Recognition and Enforcement of Foreign Arbitral Awards Act 40 of 1977. Since then, foreign arbitration awards have been recognised and enforceable within South Africa.Footnote 39
The ADR mechanisms in South Africa achieved a new dimension in the 1980s, with the establishment of non-governmental organisations that helped to enhance access to justice. Among them was the Independent Mediation Service of South Africa, which focused on resolving labour–management disputes.Footnote 40 Various other organisations were also set up with the aim of training, mediating and resolving tensions, conflicts and neighbourhood disputes among communities. These organisations include the African Centre for the Constructive Resolution of Disputes, the Vuleka Trust, the Community Law Centre, the Wilgespruit Fellowship Centre, the Community Dispute Resolution Trust, the Institute for Multi-Party Democracy and the Community Peace Foundation.Footnote 41
The inception and development of relationships between the Church and tribunals can be traced back to the beginning of Christianity. It is suggested that Jesus himself drafted the first procedural Church law.Footnote 42 As reported in Matthew 18:15–18:
If your brother should commit some wrong against you, go and point out his fault, but keep it between the two of you. If he does not listen, summon another, so that every case may stand on the word of two or three witnesses. If he ignores them, refer it to the church. If he ignores even the church, then treat him as you would a Gentile or a tax collector.
During the colonial period, the Church in South Africa was very powerful, as it was subject to its own set of rules including those pertaining to dispute resolution. These rules were not issued by the secular authorities but were inspired by Christian teachings. It is submitted that the early Church followed that model for conflict resolution in the sense that St Paul regretted that there would ever need to be litigation among the followers of Jesus. In his second letter to the Corinthians and his first letter to Timothy (2 Corinthians 13:1 and Timothy 5:19), he emphasised the importance of having two or three witnesses.Footnote 43 The Church tribunals played an important role in freedom of religion, possessing ‘an optimal degree of freedom and autonomy’.Footnote 44
To allow this freedom, however, the high court held that the civil court's intervention was necessary should a tribunal's procedure be illegal.Footnote 45 This subjection of the decisions of the Church tribunals to judicial review is important. It was reaffirmed in a case where, owing to the circumstances of the illegality of the tribunal's procedure, it was held that the civil court's intervention was necessary. The civil court held that the offence with which a church member was charged was adultery, which was referred to as a ‘spiritual censure that does not affect any civil or pecuniary rights of the applicant’. On that basis, the jurisdiction of the civil court was excluded.Footnote 46
Judicial review provides a safety net guaranteeing the fairness of Church tribunals vis à vis the parties to a dispute. This means that, if for one reason or another, the tribunal fails to comply with its own rules and thereby infringes upon people's rights, the courts always have the power to review the whole case. This occurred in the case of Van Rooyen v Dutch Reformed Church Utrecht, where the court intervened following a decision by the voluntary association that was ‘prejudicial to the complainant, by methods that are contrary to its own constitution and to the ordinary principles of justice’.Footnote 47 It was held in this case:
that it is one of the most ordinary and elementary rules of administration of justice by any tribunal of this kind, whether legal or voluntary, that where a person is put upon trial, or where he is called upon to plead to any charge, he shall, first of all, have the fullest and fairest information as to what it is that he is called upon to meet.Footnote 48
These decisions by the court define the parameters of judicial intervention and review. The above case did not contradict the autonomy of the Church tribunal and the powers and procedures governing it. This was reiterated in the case of De Waal and Others v Van der Horst and Others regarding the law applicable to voluntary associations.Footnote 49 The courts do not have the power to determine disputes among members of an association except ‘for the enforcement of some civil or temporal right’.Footnote 50 Furthermore:
These persons as members of the church may, within the law, agree on any constitution, and frame any rules they choose for the good government and discipline of the association and are also at liberty to establish any tribunals they please to decide questions that may arise within the association.Footnote 51
A similar judgment regarding the internal autonomy of associations in enacting their own rules occurred in the case of Long v Bishop of Cape Town,Footnote 52 where it was stated that ‘members of a religious body may adopt rules for enforcing discipline within their body which will be binding on those who expressly or by implication have assented to them’.Footnote 53 To further affirm this power, the court ruled that,
when such a body has constituted a tribunal, the decisions of the tribunal will be binding when it has acted within the scope of its authority, has observed such forms as the rules require, if any forms are prescribed, and if not, has proceeded in a manner consonant with the principles of justice.Footnote 54
The court thus affirmed that it would not interfere with the rules and autonomy of the Church tribunal and its decisions.
As was stated in the case of Forbes v Eden,Footnote 55
a court of law will not interfere with the rules of a voluntary association unless to protect some civil right or interest that is said to be infringed by their operation, and that least of all will it enter into questions of disputed doctrine, when not necessary to do so in reference to civil interests.Footnote 56
The court will only intervene when there is an impairment of a civil right or interest. Judge De Villiers expanded on the authority of the court to intervene by stating that ‘I have assumed above that this Court has the power of determining the true construction of the rules and regulations of the Church’.Footnote 57 The judicial limitation was further emphasised by Judge McGregor, who argued that,
If the matter is now in dispute, as it appears to be, a matter of internal doctrine, government or discipline, and not a matter where either proprietary or civil rights are involved, it seems to me, on the authorities which have been laid before us, that it is a matter where this Court should not interpose.Footnote 58
In the same vein, the ability of a civil court to intervene was expanded on as follows in Lucas v Wilkinson and Others, where it was stated that
the civil court can interfere only where something had been done which, though it may be within the rules of association, is contrary to the principles of natural justice; or where, though within the rules, the proceedings have not been bona fidei but fraudulent or malicious.Footnote 59
The court held that the tribunal had been ‘a full, fair, patient and impartial trial; conducted according to the rules of the association’.Footnote 60
The aspects of natural justice and the grounds of jurisdiction were set out to justify the court's intervention in tribunal decisions in Du Plessis v The Synod of the Dutch Reformed Church.Footnote 61 The court held that ‘it is not for the civil court to decide whether the decisions on charges concerning heresy are right or wrong’ but went on to argue that mala fide acts would require the court's intervention and determination in those circumstances.Footnote 62 The limitations of judicial interference in tribunal decision were similarly affirmed in McMillan v Free Church, where ‘it was concluded that a civil court is entitled to interfere if it should be established that a church tribunal had acted irregularly, in excess of its powers and in violation of the contract between the members of the association’.Footnote 63
The above developments convey the idea that judicial review was granted on a number of grounds, namely mala fides acts, irregular procedure and excess of powers – that is acting ultra vires, infringements of the principles of natural justice, and where there were concerns about civil rights protection. These parameters set the basis for the grounds of judicial review, including for present-day tribunals. In a nutshell, these cases reaffirm the autonomy and power of the Church, which has been able to enact its own rules and settle its disputes in an independent manner outside the processes and procedures of litigation that characterise the courts. Nonetheless, the churches’ independence was restricted by the possibility that their acts and rules could be reviewed by the courts.
In 1948, there was an important change in the political structures of the country, with the National Party (who represented the Afrikaner people's rights) taking control of South Africa.Footnote 64 The National Party implemented the apartheid system, which comprised legal policies supporting and enforcing the segregation of people on the basis of race. This change in political power did not alter the judicial review process regarding the decisions of Church tribunals. The Union had maintained close ties with Britain as a result of the natural resources, precious metals and other raw materials that attracted European capital to South Africa.Footnote 65 The exploitation, management, contracts and deals around such resources naturally caused disputes and disagreements, and resorting to the institution of tribunals became unavoidable to settle disputes. Through case law, the courts developed and pronounced the function of tribunals, which ‘is to consider evidence and to decide whether in the public interest to grant a licence; its function is not primarily to adjudicate or to reconcile issues raised between individual litigants’.Footnote 66 The emergence of tribunals was an alternative to courts, as the latter still maintained the power to review the decisions of the former. This was exemplified in a two-stage inquiry that was set out to justify the judicial intervention in a tribunal decision in the review of De Vos v Die Ringskommissie van die NG Kerk Bloemfontein.Footnote 67 In this case, it was held
that the sheer transgression of the rules of a voluntary association is insufficient to justify the applicability of a court of law. Firstly, the aggrieved person must prove that he was disadvantaged and that he has a civil right or interest that is violated by such transgression. Secondly, clarity had to be gained concerning the issue whether the applicant had a sufficient civil right that merits protection from the courts of law.Footnote 68
Judicial intervention in reviewing tribunals’ decisions also occurred in Odendaal v Kerkraad van die NG Bloemfontein-Wes, which was about a deviation from the two-stage inquiry.Footnote 69 The court intervened on a new ground following the procedure's irregularity, and raised the reason for the deviation from the two-staged inquiry ‘to matters concerning church disciplinary hearings, where it is clear that an irregularity in the disciplinary procedure has taken place that had caused the accused to be disadvantaged’.Footnote 70 Through this judgment, the court addressed the imbalance of power that may be caused by tribunal decisions.
Once again, the court intervened to review a tribunal decision on the grounds of a violation of the principle of natural justice. In Odendaal v Loggerenberg en Andere it was observed that ‘the basic requirements for review of a quasi-judicial act is where there had been a violation of the church's rules or statutes or where the elementary principles of justice had been neglected and such neglect really disadvantaged the condemned person’.Footnote 71 Another instance of judicial intervention occurred in Theron en Andere v Die Ring van Wellington van die Nederduitse Gereformeerde Sendingkerk.Footnote 72 The requirement of reasonableness embedded in the Promotion of Administrative Justice Act constitutes one of the grounds for judicial review in current tribunals.Footnote 73 In this case,
the Court of Appeal added to the formal measure, consequently increasing the jurisdictional area of the law courts on matters pertaining to ecclesiastical tribunals. Besides having to adhere to the requirements of the formal test, the presumption against unreasonableness and unfairness also had to be applied. Hereby the court has to investigate whether the decision of the tribunal was reasonable.Footnote 74
As time went by, there was domestic and international pressure for the abolition of apartheid.Footnote 75 This resulted in Nelson Mandela being released from prison on 11 February 1990. The changes to the nature of the social, legal and political systems of the country were to be embedded within a new Constitution, which would guarantee the rights of citizens in a democratic South Africa.Footnote 76 The multi-party Congress for a Democratic South Africa (CODESA) was established. CODESA met on 20 and 21 December 1991, with good representation from the government and 19 political parties.Footnote 77 It led to the formation of five working groups; the most relevant for the purposes of the present discussion is working group 2, which dealt with proposals concerning general constitutional principles and a constitution-writing body/process.
CODESA II was formed in 1992 because of the political impasse that had been reached. Eventually, on 28 November 1993, the interim Constitution was accepted with sufficient consensus.Footnote 78 With regard to dispute resolution, section 22 provides for a guaranteed right ‘to have justiciable disputes settled by a court of law or where appropriate, another independent and impartial forum’. Ackermann further elaborated on the purpose of section 22, which is:
to emphasise and protest generally, but also specifically for the protection of the individual, the separation of powers, particularly the separation of the judiciary from the other arms of the state. Section 22 achieves this by ensuring that the courts and other fora which settle justiciable disputes are independent and impartial. It is a provision fundamental to the upholding of the rule of law, the constitutional state, the ‘regstaatidee’, for it prevents legislatures, at whatever level, from turning themselves by acts of legerdemain into ‘courts’ … By constitutionalising the requirements of independence and impartiality the section places the nature of the courts or other adjudicating fora beyond debate.Footnote 79
Section 22 provides for the independence and impartiality of tribunals to make decisions of law without any undue influence to protect the right of access of citizens to ‘justiciable decisions’. Prior to democracy, there had been limited access to tribunals, but now they were to be available to everyone, irrespective of race, colour, religion or ethnicity.
Tribunals after colonisation
Following the end of apartheid and colonialism, a new era emerged in South African history – one culminating in the advent of democracy. This new era was preceded by major international events, such as the fall of communism, the rise of liberalism and the collapse of the Berlin Wall in 1989. Four years after his liberation, and following general elections in 1994, Nelson Mandela became the first democratically elected president of South Africa.Footnote 80 Two years later, in 1996, the Constitution of the Republic of South Africa was promulgated and appeared to be one of the best in the world for innovating at many levels. With regard to the institution of tribunal systems, section 22 of the interim Constitution became section 34 of the final Constitution. The formulation was amended slightly, to read: ‘Everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before courts or, where appropriate, another independent and impartial tribunal or forum.’ Section 34 creates a constitutional obligation on the state to establish independent tribunals for the resolution of civil disputes. This was emphasised in Bernstein v Bester, which reiterated that ‘in all democratic societies the state has the duty to establish independence for the resolution of civil dispute … in a constitutional state that obligation is a fundamental importance and it is clearly recognised as such in our constitution’.Footnote 81
A period of creation and development of domestic tribunals followed.Footnote 82 Today, owing to the varied demography and the persistent tension and conflicting interests between people, and between people and their rulers, the modern state of South Africa is characterised by the coexistence of various institutions to settle disputes. These institutions include not only the classical courts generally referred to as the judiciary, but also ADR mechanisms, at times incorporated by tribunals.Footnote 83 The final Constitution of 1996 provided in section 211(3) that ‘The courts must apply customary law when that law is applicable, subject to the Constitution and any legislation that specifically deals with customary law.’Footnote 84
THE IMPORTANCE AND ROLE OF A UNIFIED TRIBUNAL SYSTEM
A unified tribunal system in South Africa is important to prevent different tribunals operating in a disconnected manner from each other. Church tribunals are an example of the ecclesiastical beginnings of the formation of tribunals, and the tribunals that were formed by indigenous people illustrate the establishment of such methods of adjudication through different eras. Church tribunals set the foundation for the independence and judicial review of tribunal decisions. It is evident that tribunals enhance access to justice in the utilisation of informal procedures, their relaxed mode of operation and the employment of ADR mechanisms. But a unified system is needed to address the shortcomings of tribunals by ensuring the rationalisation of rules for the tribunal system, instead of different sets of rules that are an unnecessary duplication of one another. This unified system should adopt ADR mechanisms, since not all tribunals currently utilise ADR techniques as a method to ensure the early resolution of disputes. The tribunal system must ensure that it has power and thrust to enforce its decisions, because it currently relies on the court system for that enforcement. Finally, the tribunal system should be tiered so that there are opportunities for a matter to be heard, referred to, reviewed and appealed, which will enable the system to be independent of the court system, thus easing the court load and not adding to the burden on courts.
CONCLUDING OBSERVATIONS ON THE HISTORICAL MILIEU OF TRIBUNALS
This article has examined the historical milieu of tribunals, tracing their beginnings within a South African context. Since their inception, tribunals have played a determining role in settling disputes among members of society. Their peculiarity in South Africa lies in the fact that they were developed alongside existing ADR mechanisms embedded in customary law, indigenous customs and the principle of ubuntu. Tribunals and the tribunal system have crossed time and space within the South African context, and their role is identifiable not only prior to the colonial period in the country, but also after colonisation, during the apartheid system and in the current democratic state. Several cases exemplify the relevance of tribunals, which, notwithstanding their independent status, remain subject to judicial review by courts, especially where it is believed that justice has not been not served. Nevertheless, we have seen the relevance of the tribunal system as an alternative to the classical form of dispute resolution provided by the courts.
