NCJ Number
104504
Journal
International Journal of the Sociology of Law Volume: 14 Issue: 3-4 Dated: (August-November 1986) Pages: 359-376
Date Published
1986
Length
18 pages
Annotation
A case study is presented of the informal system of family dispute resolution traditional among the Bakwena tribe of South Africa.
Abstract
In this case a couple divorced by the formal court system was referred to their chief's kgotla (the community meeting place that provides a mechanism for negotiation and mediation) to settle custody and property disputes. Under the traditional tribal system, the person raising the dispute is questioned by the headman, the other disputant, and community members, concerning his or her position. While all members of the community are present, women rarely participate. In addition, decisions reached in the kgotla are recognized by the formal legal system and given the power of a court. In this case, the ex-wife, seeking a more equitable distribution of the property, was questioned about the sources of the property, her conduct, and her need for the property. The kgotla found that the ex-wife was not entitled to any share of the property on the grounds that she precipitated the divorce, deserting her husband and children, and that custody of the six children had been given to the husband by the court and that the property should be used for their maintenance. This case illustrates how informal dispute resolution systems may disadvantage the less educated and articulate party (the ex-wife,) how a disputant's influence in the community can affect outcome, and how third-party intervenors may fail to maintain a neutral and conciliatory stance. Also highlighted is the impact of sex-role expectations and the formal justice system on informal dispute resolution mechanisms. 9 references.