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S. African poor maintain justice in 'community courts' Needy neighbors revive tribal ways to fill void


DIEPSLOOT, South Africa -- Fanie Soni sits in judgment of his neighbors in this squatter camp of 26,000 impoverished shack-dwellers north of Johannesburg.

He has no legal qualifications, no training and is unemployed. But he is the first rung on the ladder of justice here.

He sits in the community court, an informal forum approved by the community, tolerated by the police and about to be legalized by the government of President Nelson Mandela.

The Justice Department wants community courts like this one to be officially recognized as an affordable, accessible and acceptable way of dealing with minor crimes and social problems.

One goal: to bring justice closer to the people. Another: to ease the burden on the formal court system in this crime-ridden country.

The Diepsloot community court meets in the evenings whenever there is a case to hear in the administrative building, hub of authority in this shantytown of crowded, rickety shacks set along narrow, dirt streets.

"All communities are just fed up about crime," said Soni, 38, who sits with three other "presiding officers" to hear cases ranging from petty theft and domestic violence to land disputes and public nuisance.

"If someone steals something, we know him. We don't hand him to the police. We try to resolve it within the community. We say, 'Take what you have stolen and give it back.' We warn him that, 'Next time we will take you straight to the police station.' "

There have been few second-time offenders since the court opened 18 months ago at the behest of the local branch of the ruling African National Congress, of which Soni is a member.

"The community is really happy about this," said Soni. "We are straightforward. We do not do things behind closed doors. We are not afraid to walk to our homes at night [after the court closes]. Nothing happens, because we are taking the right decisions."

Community courts are the modern, urban equivalent of rural, traditional courts, run for centuries by chiefs and leaders to settle disputes and deal with crime at the tribal level.

These courts sprang up in the 1980s. The apartheid-era police were letting crime run rampant in the black townships, which are outside the tribal system, all but forcing the people to take the law into their own hands.

Vigilante justice ended

These "people's courts" fell into disrepute as they resorted to vigilante justice, imposing excessive punishment on enemies of the struggle against apartheid, sometimes resorting to public beatings and "necklacing" -- putting a flaming gasoline-filled tire around a person's neck.

Geraldine-Maureen Moloi, a researcher who has studied the community court structures for the South African Law Commission for the past nine months, said: "The 'people's courts' of the 1980s should be distinguished from the community courts practicing now. Those were sort of kangaroo courts."

Apartheid authorities began to suspect the people's courts were becoming a challenge to the central judicial authority, and eventually cracked down on them. In the waning years of apartheid the people's court system became all but defunct, but after the 1994 election of the country's first black government it was revived under the "community court" label.

The law commission is preparing recommendations on how to fit the community courts into the formal justice system, restricting their powers to minor misdemeanors and civil disputes.

"The outcry from the communities is they need these institutions," said Moloi.

The local courts will be run by respected elders, who will be given basic legal training.

"We think that kind of community involvement will help stabilize communities and bring down crime," said Enver Daniels, chief law adviser to Justice Minister Dullah Omah. "It's more a way of reducing conflict and dispute in a community by alternative mechanisms -- negotiation, arbitration and discussion.

"Many of the courts operate on the basis of restorative justice in the sense that if you have stolen a chicken, you return a chicken, or if you have stolen a bicycle, you return a bicycle."

Rehabilitation emphasized

Alongside restorative justice, the community courts rely heavily on "reiterative shaming," or public exposure, as a means of enforcement. A favored method of rehabilitation is to order offenders to do community service. The system emphasizes settlement rather than punishment.

In some areas the community courts have become so popular and influential that their power has been extended to housing and land issues, allowing the parties to avoid expensive litigation.

In Diepsloot, the court has ruled that if a man and woman have lived together for more than five years, the survivor inherits the other's property. The ruling, according to Soni, followed a claim by a dead resident's mother that his property should be hers and not given to the woman with whom he had lived for seven years.

Return to traditions

One attraction of the community courts is that they represent a comforting return to African traditions for the majority.

"These traditional laws were there long before the white man landed in this country," said Omar Peer, legal adviser to the South African National Civic Organization, which endorses recognition of community courts. "So why are we imposing Western procedures? We don't need those procedures."

Many blacks find Western-style law too expensive and mistrust it, according to David Berger, American coordinator of the Center for Innovation and Productivity at Vista University, which is helping formalize the community court in the township of Mamelodi outside Pretoria.

"In this country the Western legal system was not only corrupted by dictatorship and racism, but the people's perception of it was negative and the negativism was well deserved," Berger said.

"The question now is how do you have a fully functioning system where you take the best of the Western and the best of the traditional systems and create something that works today and into the future?"

Mathole Motshekga, premier of Gauteng, the province centered on the political and commercial capitals of Pretoria and Johannesburg, is one of the strongest advocates of what he calls "community justice by the community, from the community, in the community."

Motshekga is preparing a pilot program for a "community justice program." It will start early next year and include five community courts from the existing illegal forums in townships throughout the province.

Pub Date: 12/25/98

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