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People's courts, postmodern difference, and socialist justice in South Africa.


A MID THE WIDESPREAD SOCIAL UPHEAVALS OF THE MID-1980s, AN ESTIMATED 400 "people's courts" surfaced in townships around South Africa (Seekings, 1989: 123). Their ascent into the political landscape of the era was rapid until 1988, when the success of the state's emergency regulations made it possible for the head of the security police to declare the total elimination of people's courts (Ibid.: 130). Though one might have cause to be suspicious of this blanket declaration (and the intentions of its author), the legacy of people's courts is unclear. What is clear, however, is that many of these courts, unlike other informal or "customary" dispute-resolution mechanisms, explicitly linked themselves to revolutionary, prefigurative struggles to replace apartheid legal forms (Allison, 1990). Instead of serving as mere complements to the state's courts, or of articulating informal and formal mechanisms of power in the dispute-resolution arena, people's courts sought to transform existing power arrangements by contesting state hegemony over the legal field.

In this "war of manoeuvre" (Gramsci, 1971), advocates of people's courts were able to gain considerable ground over a relatively short period of time by exploiting the state's inability to secure the consent of a critical mass of township residents. The state's failure is hardly surprising in view of its racist laws, its extreme reliance on coercive force (e.g., its declared state of emergency), its illegitimate institutions, and so on. Yet, the attempt to prefigure a post-apartheid dispute-resolution domain through people's courts encountered serious problems of its own, which -- together with a massive state crackdown on advocates -- contributed to their decline. Nevertheless, there are important lessons to be learned from this brief, but significant, attempt to popularize township justice.

Drawing on the insightful research of other analysts (e.g., Scharf, 1988, 1989; Burman, 1989; Burman and Scharf, 1990; Seekings, 1989; Allison, 1990; Nyaka, 1986; etc.), this article will describe the proximate rise of people's courts as a community response that initially captured popular support and promised a new order in the wake of crumbling structures of the past (Gunene, 1988: 11; Seekings, 1989: 126).(1) Analyzing their decline, one can identify several important factors that militate against viewing them as unqualified, positive contributions to social justice (Allison, 1990). In the final part of this article, I shall point to some lessons that may be of value to future attempts to restructure dispute-resolution arenas in a post-apartheid South Africa. The importance of such an endeavor is not irrelevant to present conditions, especially when one considers the ongoing violence and social conflict that any future government will have to deal with -- a point that has been underscored by the recently signed National Peace Accord calling for a National Peace Secretariat to coordinate the efforts of Local and Regional Dispute Resolution Committees.(2)

Conceptual Clarifications

The discursive field into which this article ventures is no longer the "virgin territory" described by Hund and Kotu-Rammopo in 1983, but one can still concur with them that "much of the spadework has yet to be done" (1983: 179). There is a definite paucity of first-hand research in the area and this void is not entirely coincidental. Indeed, my own efforts at research in the field were unsuccessful and secondary (library) research was severely hampered by the South African government's Emergency Proclamation (issued in the middle of 1986) that made it a punishable offense for any person to publish (in any form), comment on, or advertise anything about, or which could lead to inciting the public "to prosecute, to try or to punish persons by way of unlawful structures, procedures, or methods purporting to be judicial structures..." (in Scharf, 1988: 19). In effect, this made it illegal to write anything about people's courts -- hardly an environment conducive to research.

To complicate matters further, there is a great deal of terminological confusion surrounding township tribunals that aim at settling conflicts. Quite aside from the plurality of such dispute-resolution forums, which we shall discuss in the next section, similar kinds of informal settings are denoted differently by such terms as "people's courts," "street committees," "township courts," and "makgotla" (Seekings, 1989). To avoid terminological confusion, following Seekings I shall refer to "people's courts" as township tribunals, which existed outside the state apparatus and met regularly, had a recognized structure for dealing with civil or criminal offenses, and "were broadly aligned with the 'radical' opposition" (Ibid.: 120). In addition, these tribunals had the power to sentence people and were often linked, in one way or another, to "street committees" (Burman, 1989). This definition separates people's courts from spontaneous summary trials (e.g., "necklacing"), which lacked a repeated organizational form. It also distinguishes them from the makgotla, and some street committees, which were not explicitly aligned with struggles against formal court structures. With this in mind, let us now examine the rise of people's courts in townships around the country.

Contextual Background

From their inception, townships have employed diverse endogenous methods of dispute settlement (Burman, 1989; Burman and Scharf, 1990). Indeed, colonization brought with it ongoing contests between magisterial law and the law of chiefs, very often producing unstable patterns of alliance, cooperation, or disjunction. The upshot of shifting relations between these has been the formation of a veritable legal pluralism, with a diversity of dispute-resolution arenas that vary from township to township, many of which exist as alternatives to the formal courtrooms of the state's justice system. That these informal tribunals have persisted so resiliently over time is no doubt related to the injustice, inaccessibility (financially, linguistically, geographically, and, perhaps, culturally), irrelevance, and illegitimacy of state courts to most township residents (Scharf, 1989: 167). For heuristic purposes here, we might use a threefold categorization to synthesize the plurality of forums that comprise informal township justice outside the state's formal courts. I have separated the formal courts from other tribunals not only to focus this article, but also because a large proportion of township residents experience South Africa's formal courts as peripheral institutions (e.g., Burman and Scharf, 1990: 706; Nyaka, 1986). These informal institutions constitute the basis for comprehensively understanding township justice.

A variety of dispute-resolution tribunals can claim legitimacy from custom. South African law recognizes these "customary" courts within the limits prescribed by the Black Administration Act of 1927.(3) Although they appear in various guises, these courts are the descendants of moots overseen by chiefs, but have now been statutorily reconstituted as the lowest rungs of a centralized colonial court hierarchy. In many contexts they are generically referred to as makgotla (the singular is lekgotla). This term denotes a range of tribunals, but the most prominent among these in the early 1980s -- especially in the Transvaal -- were the courts run by community councillors (or their Ward Committee appointees). Hund and Kotu-Rammopo's (1983) study of these councillor courts in Ward Four of Mamelodi Township suggests that while initially commanding a measure of popular support, they came to be dominated by quasi war lords. Indeed, Hund and Kotu-Rammopo describe how unpopular councillors, political fragmentation, punitive sentences,(4) corruption, bribery, undemocratic practices, and unfair procedures soon eroded the legitimacy of these tribunals such that they could maintain a foothold in the townships only by using sheer force. As such, as Seekings (1989: 122) observed, "many of their activities seem to have involved brutalizing residents to advance the members of the Makgotla. In short, they were often paramilitary rather than judicial institutions."

As might be expected, community support for such courts soon waned and turned to a situation of outright hostility. By 1984, most councillors were forced to resign under the pressure of threats, physical harm, house burning, and even death (Honey, 1986). Second, in most areas of the country, local communities have established certain "street committees" (sometimes called "section" or "headmen's" committees), which typically deal with a variety of matters pertaining to a cluster of houses, streets, or general area (e.g., garbage collection, control of water supply, rent increases, etc. [Burman, 1989]). These committees are the grass-roots aspect of more or less informal political arrangements that exist in townships across the country. Above this local level one typically finds elected township executive committees that in turn -- at least in some regions -- find representation in regional umbrella groups (Burman and Scharf, 1990: 706). Associated with these street committees, there are a number of dispute-resolution tribunals that have weathered the political storms of the previous decade. Indeed, such is the current prominence of street committee courts that Burman and Scharf argue that -- in the Cape region at least -- they now constitute "the primary informal courts in the townships' networks of informal local community courts" (1990: 706).

Finally, there are a number of courts that are associated with tribal (or Homeland) representatives, cultural movements, hostel dwellers, bands of local residents, gangs, sports, and, of particular concern to us here, political groups. People's courts fall into the latter category because of their intimate affiliations with oppositional political groups. Moreover, they reflect a dual heritage since peoples' courts have incorporated the relatively informal shape of customary courts and can also be described as modem expressions of the township political vigilance committees that emerged in the early part of the present century (Burman and Scharf, 1990: 707). Being strongly opposed to the government at the time, these committees were disbanded -- at the state's insistence -- in favor of street committees. Yet the socialist underpinnings of the political vigilance committees permeated the ensuing structures and, in some cases, the dispute-resolution activities of street committees were indistinguishable from those of people's courts (Scharf, 1989: 170). As such, people's courts may be said to reflect a combination of historical trends toward local, informal justice that have always pervaded everyday township life and various forms of socialist opposition to the South African state. The upshot of this amalgamation of historical trends was the formation of local, community-orientated, dispute-resolution forums that saw themselves as directly part of the struggle to overthrow the state and its legal system (Nyaka, 1986). With this in mind, the following analysis centers on the people's courts, describing their emergence, typical procedures, and eventual decline.

The Rise of People's Courts

There were many reasons for the appearance of people's courts in the country, varying, as one might expect, across regions (Scharf, 1988: 21). Nevertheless, several dominant events affected a number of townships and promoted conditions favorable to the rapid ascent of popular justice. First, as noted, the demise of the councillor courts left a definite void in informal township justice arrangements (Nyaka, 1986). This lacuna had developed simultaneous with the spread of township protests to many parts of the country and the subsequent unrest that politicized almost every aspect of the formal legal system, which sanctioned the stratification of society by race. The effect was cumulative, with intensified resistance to societal regulation through protest, unrest, and various insurrectionary activities. In such an ethos, the state directed its police force almost entirely to political control, ignoring immediate social problems. This translated into noticeable neglect of local criminal activity, leaving residents frustrated, especially in those townships with growing Clime rates -- a phenomenon not Unrelated to the activities of "marginalized members of the township who were exploiting political turmoil" (Scharf, 1989: 170). Amid this social turmoil, people's courts made their way into township life at an increasing rate. Indeed, commenting at the time, Mike Seloane, general secretary of the Mamelodi Youth Congress, noted that "more and more people are shying away from reporting their cases at local police stations or the home of councillors. This has resulted in residents setting up their own courts" (Nyaka, 1986).

In this setting, people's courts were established in various ways and in response to various impetuses in specific contexts. For example, some courts were the products of specific political organizations' strategies (e.g., the United Democratic Front) to erect a set of alternate structures that would harness "people's power." The aim here was to replace state bodies with credible alternate structures (Brandt, 1986). As one Mamelodi activist put it, "they [the residents] must gain confidence in what we are doing, so that they can break away totally from government structures. The government must become irrelevant to their lives" (in Honey, 1986: 9).

Therefore, some political organizations used people's courts to educate residents about the struggle, or simply to keep them abreast of developments. Such tribunals became especially important where state restrictions made it difficult to communicate with, and organize, local residents (Brandt, 1986; Moss, 1987). For instance, the consumer boycott campaign, which began in the Eastern Cape and spread to other parts of the country, was a major impetus behind establishing people's courts.(5) Leaders in the Consumer Boycott Committee (CBC) identified a need for disciplinary mechanisms to make people aware of purchasing restrictions and to ensure that these were upheld. Moreover, the CBC wanted to control the activities of so-called thugs, who exploited the situation for their own ends.(6) Therefore, people's courts were established as an instance of people's power and were intended to help guide the struggle in a progressive direction. Still other people's courts were erected by less clearly demarcated political allegiances, in response to specific local events. For example, Scharf (1989) describes how the Nyanga Art Centre People's Court was established after the theft of electrical wires that robbed the community of a functional art center. The court was erected to find the culprits and to determine what to do with them.

As such, it may be that courts were established either by political design, or emerged with less formal political attachments under the guise of maintaining social order (or "controlling crime"). The former, which I shall call "political" people's courts, explicitly sought to make the government "irrelevant" to the daily lives of township residents. This implied that by participating in the existing state institutions residents were de facto participating in the very means of their own subjugation. Therefore, they offered alternate structures designed to achieve liberation (Honey, 1986; Seekings, 1989) and had as their ideal the prefiguration of the country's legal system (Allison, 1990). By contrast, other courts -- which I shall name "social order" courts -- had loose, or informal, links with various political opposition groups. Their claim to legitimacy rested not so much on the credibility of the political organizations to which they were articulated, as to their promise to redress escalating crime rates and growing township disorder (Seekings, 1989: 126-128).

As a whole then, it seems that the rapid erection of people's courts in townships was part of a process by which politicized structural inequalities intersected with proximate problems at a particular conjuncture in history, and this produced an general environment conducive to the formation of "alternative," opposition-based tribunals in the townships. The emergent people's courts sought to neutralize state justice and transform township dispute-resolution structures. In effect, this entailed a contest over jurisdiction because people's courts were able to colonize the role of adjudicating local disputes to a large extent. In this way, Seekings correctly points out that people's courts "reflected a form of struggle against the state, by removing issues from its jurisdiction into the extra-state township arena" (1989: 120).

In the process, township residents became aware of the potential to (re)create judicial structures that were more responsive to community needs; indeed, it is not an exaggeration to describe the excursus into people's justice as an "experiment with prefiguring the lowest rungs of a post-apartheid adjudicative infrastructure" (Scharf, 1989: 170).

Procedures and Features of People's Courts

The noted variations across regions of the country, coupled with the paucity of research on people's courts, preclude generalizing about the details of people's-court procedure. However, by looking at Scharf's (1988, 1989) accounts of the Nyanga East Youth Brigade people's court in Cape Town, one can identify a number of procedural regularities that seem to fit patterns described elsewhere (e.g., Seekings, 1989; Honey, 1986). Dealing with both "civil" and "criminal" matters uniformly, the Youth Brigade People's Court appears to have dealt with a diversity of disputes, including familial disputes, theft, rape, and so on. In most cases, it demanded the physical presence of both complainant and defendant, which sometimes required the services of a "pickup team" (Burman and Scharf, 1990: 724). They appeared before the court comprising members of the Youth Brigade who filled the positions of chair, clerk, orderly, and complaints recorder (Scharf, 1989). The complainant was given an opportunity to present his or her side of the case first, and then was questioned by court members. At this time, Scharf notes that the defendant was permitted to ask specific question of the complainant. Next, the defendant offered the court his or her side of the dispute and was required to field questions from Youth Brigade members and the complainant.

When a dispute involved matters of guilt, the Brigade members present at the hearing voted to decide the case. If a guilty verdict was passed, then individual members were invited to propose punishments and justify the appropriateness of such measures to the case at hand. After that, the proposed punishments were subjected to a majority-vote approval by members of the court. When the court deemed corporal punishment to be apposite, the lashes (15 was apparently not deemed excessive) were administered by more than one member of the Youth Brigade, to underscore to offenders that their offenses constituted a social, or community, harm and not simply a transgression against another individual. Often, pronouncements of punishments were accompanied by lectures on how "comrades" in a future, post-apartheid South Africa would be expected to behave, and once people had endured their punishments they were invited -- after a brief "reorientation" -- to join the Brigade (Burman and Scharf, 1990: 724-725). The clear intention here was to be fair and yet avoid the rigidity, formality, and technicality of the state's courts (Scharf, 1989; Honey, 1986).

Comparing this with other courts (Seekings, 1989; Scharf, 1989; Honey, 1986), one can identify several general features common to people's courts, even if specific details differed from context to context. First, this research shows that the legitimacy of courts was not dependent on the lofty sanctions and principles of Western jurisprudence; rather, the critical variable seemed to be acceptance by those who participated in the dispute-resolution structures. Thus, we can surmise that the precise content of credible people's-court procedures was subject to limits acceptable to local participants. Second, courts varied considerably in the degree to which they responded to, and represented, the community; some established representative structures to ensure broad-based community participation, while others (such as the Nyanga example above) did not (Scharf, 1989). A related variable was the manner in which people's courts aligned themselves with political organizations. This is especially important in view of Scharf's finding that accountability to credible political organizations guarded against punitive excesses and ensured that courts remained responsive to the community (1989: 178).

Further, people's courts showed marked differences in punishment philosophy. Largely, however, the original idea behind their meting out of punishment was to educate and rehabilitate offenders (Honey, 1986, Scharf 1988). Initially, sentences such as cleaning old-people's gardens, returning stolen goods, distributing pamphlets for political groups, etc., were common (Burman and Scharf, 1990: 724). The basic message that the courts attempted to communicate to offenders was that they belonged to a concerned community that would welcome them back if they recognized their mistakes and made suitable reparations. However, as illustrated in the Nyanga East Youth Brigade Court, as more of the hardened offenders joined the Brigade, punishments took an increasingly punitive form: numerous lashes with a "sjambok" quirt) became a sentence of choice. Although this was common enough elsewhere (Seekings, 1989), it is important to bear in mind that not all people's courts -- especially those with explicit political links -- followed this punitive path (Scharf, 1989).

Indeed, in some cases people's courts helped to secure community solidarity, an important feat especially in situations where escalating intra-township conflicts would simply have played into the hands of the state's "divide and rule" strategy (Moss, 1987; Damoyi, 1986). By seeking conciliatory resolutions between disputants, and by gearing punishments to educative and community-based tasks, some people's courts helped to foster a sense of community (Scharf, 1988). Moreover, many political people's courts served to unify political strategies (e.g., by linking with politically aligned street committees) and helped to consolidate the opposition. For instance, as noted, by regulating the consumer boycott, people's courts enhanced this strategy's visibility and helped to maximize its impact (e.g., in light of its effects, the boycott pressured many white business people to join the struggle and call upon the state to meet resident's demands [Haber, 1985]). They also helped to communicate information that was critical to the effective organization of counter strategies and, in many cases, attempted to educate residents about the nature of, and their role in, the struggle against apartheid.

So, existing accounts suggest that people's courts were more or less organized and aligned with political organizations as they sought to develop mechanisms that could claim de facto jurisdiction over local disputes. While there appear to be a number of key similarities, themes as it were, between people's courts, the content of their procedural rules varied as did their accountability to credible political organizations, the structures they employed to ensure community representation, their responsiveness to community values, and the punishment philosophy they adopted over time. With this in mind, let us now turn to several problems that beset people's courts and contributed to their eventual decline.

People's Courts in Recess: The Decline

By the latter part of 1986, the eminence of many people's courts had receded (Seekings, 1989). There are various reasons for this, both intrinsic and external. With respect to the former, one saw courts isolating themselves from the community, youths being overrepresented in courts, increasingly punitive punishments, and a loss of popular support. For example, Scharf (1988, 1989) describes how the Youth Brigade People's Court failed to keep abreast of the community's changing needs, and as a youth-dominated court, it did not adequately represent all residents. To make matters worse, it became more punitive (and persecutory) as time passed, and the image of youths lashing elders contradicted prevailing values. Clearly, the court was no longer representative of, nor responsive to, the wider community and, in consequence, its decline seemed imminent.

Moreover, according to Seekings, this was not an isolated occurrence, for "a number of courts became self-serving -- particularly when the amorphous category of |youth' in the township started imposing severe corporal punishment" (1989: 129).

Because of such excesses, numerous people's courts throughout the country began to lose the popular support upon which they were founded. As Allison (1990) pointing out, it seems that here people's courts had confronted the difficult problem of being unable to reconcile their laudable attempts at prefiguring the nature of justice with the more immediate "expediency" demands made on them by some vocal groups in specific contexts. Indeed, this is confirmed by Scharf's (1989) observations that by encouraging all past offenders to join the Youth Brigade, regardless of class position, political affiliation, or even moral persuasion -- and without extensive educative orientation -- the Youth Brigade's People's Court increasingly succumbed to the persecutory visions of people with dubious political integrity (see also Brady, 1981: 184). While the implicit determinism of Allison's analysis may be suspect, especially when he alleges that some courts were unable to recognize their "prematurity" (1990: 415), there is much merit to his basic point that yielding to contextual demands of particular individuals for more punitive sanctions may actually have played into the very hands of the state legal hegemony that people's courts were supposed to escape.

This point is reaffirmed when one considers that many people's courts merely emulated the triadic adjudicative model of state courts in processing disputes: community representatives posed as "judges" to settle disputes between disputing parties. The consequent emphasis on guilt and innocence predisposed many courts to seek appropriate forms of retribution in the first instance. Yet this is a flawed model of justice to follow, for it emulates the hegemonic, "professionalized" justice of the state's legal system (Cain, 1985). This ought really to be scrutinized much more closely, for is it not this very "justice" that has so efficiently furthered the exploitation of apartheid practices? Perhaps Foucault is correct in noting that:

the court, with its triple division into two disputing parties and the

neutral institution, which comes to decisions on the basis of some

concept of justice, which exists in and for itself, seems to me a particularly

disastrous model for the clarification and political development

of popular justice (1980: 29).

Indeed, it may be that "popular justice is profoundly anti-judicial, and is contrary to the very form of the court" (Ibid.: 6). As such, a major failure of people's courts was their inability to sustain momentum to seek out the counterhegemonic legal forums that their initial ideals sought. Indeed, by emulating patterns of triadic adjudication, people's courts simply individualized disputes rather than seeking out more founding, structural reasons for specific conflicts. Their consequent search for transitory settlements between individual parties was unlikely to produce meaningful resolutions because it did not sufficiently incorporate structural analyses into the dispute-resolution process (Abel, 1982). Undoubtedly, conflicts in particular contexts should be examined collectively with an emphasis on how they emerge, who defines them as such, what structural conflicts they imply, and what remedial strategies would be most effective (Hipkin, 1985; Cain, 1985).

People's courts also failed rather dismally on another front -- namely, in countering the pervasive impact of patriarchal structures in South Africa (e.g., Bernstein, 1985; Cock, 1980; Walker, 1982). Although many courts did help women with marital disputes, alimony defaults, and so on (Seekings, 1989: 128), the courts themselves were blatantly patriarchal in nature (Burman, 1989: 157; Scharf, 1989: 173; Burman and Scharf, 1990). Indeed, in some cases, women were systematically excluded from decision making (Burman, 1989). Such practices are clearly unacceptable, especially in the context of progressive political struggles designed to overcome the Oppression of a society. To the extent that people's courts failed to identify this form of subjugation as something to oppose, and even perpetuated it in their very structures, they assisted in propping up patriarchal structures of the wider society and ipso facto excluded a sizeable proportion of residents from effective participation.

A final internal problem that particularly beset "social order" people's courts was that of being unable to cope effectively with political fractions that were to develop within the very structure of the courts. For example, Burman and Scharf (1990: 726-730) describe the political cleavages that developed between Black Consciousness supporters and Charterists in the Youth Brigade People's Court. Without accountability to a clearly delineated and credible political organization within the community, the democratic procedures of the courts were compromised without an effective means of regulating transgressions. Indeed, as Scharf succinctly notes:

The danger of trying to pose as an "objective" unaffiliated court, as in

the Cape Town example, lay precisely in the fact that it was not accountable

to a credible local political structure that could both lend it

legitimacy and intervene when the gap between ideals and practice

widened (1989: 178).

In addition, the court itself became a forum for recruiting members and this, no doubt, could have interfered with the fairness of the process as different political organizations vied for the support of offenders, or sought more punitive punishments for members of rival political groups. In any case, the point here is that in highly charged political environments, where mere allegiance to particular political organizations can spark violent eruptions, the presence of competing political alliances can wreak havoc with even the best of prefigurative intentions. Therefore, the organized structure of courts accountable to, and regulated by, legitimate political organizations appears to have a better chance at resisting the excesses that seem to haunt unregulated popular-justice institutions.

An important feature of the political landscape that contributed markedly to the decline of people's courts and tended to exacerbate the specific form of the above problems was the success of the government's attack on them. Although the state's initial response to the founding of people's courts was cautious, it soon recognized their potential threat and by the end of 1985 had embarked upon a multifaceted strategic clampdown (Moss, 1987). As part of its overall offensive, the government issued a Proclamation (see above) outlawing the existence and use of people's courts. It also evoked a rule of silence, forcing people's courts underground and making them less visible. This made it increasingly difficult for people's courts to survive, let alone to strive for ideals of justice. In addition, the state sought to eradicate specific people's courts by detaining and arresting leaders, members, and participants. So serious was the perceived threat of people's courts that the state charged some leaders with treason (the most publicized of these was the trial of Moses Mayekiso, a prominent trade unionist and civic leader).(7) It alleged that they had tried to create "organs of people's power" and thereby to usurp the authority of the state (Seekings, 1989). Though unsuccessful on this charge, the state did manage to obtain convictions on charges like assault and sedition. Moreover, by detaining large numbers of activists involved with people's courts, the state was able to displace their functional capacities. It then initiated a system of controversial Regional Service Councils in an effort to gain control of townships.(8)

In view of the combined effects of the intrinsic problems faced by many people's courts and of the state's sustained onslaught, it is not surprising that the prominence of these tribunals has waned. To be sure, the state's imposed silence on people's courts has proved successful enough to prevent conclusive, or comprehensive, statements about their ultimate effects on the justice arena. However, even if existing research does suggest that people's courts are not as prominent as they once were, this does not mean that their legacy is irrelevant to discussions of emerging legal forms. On the contrary, it seems that people's-court justice has many lessons to offer discussions about how to ensure popular legitimacy for a post-apartheid, socialist legality (Hipkin, 1985). As such, the effects of people's-court justice may be more dormant than extinct, because research into such courts has provided important discursive categories and enunciations that may be of particular use in developing an operational vocabulary for discussions about a future justice system.

Conclusion: Lessons from the Past

Interpreted in a particular way, the previous discussion of people's courts raises several issues that are directly pertinent to attempts at developing a post-apartheid legal edifice in South Africa. Three critical issues should receive substantial elaboration in future research. First, it is important to take seriously the realization that the "law" is only partially constituted by the state's formal apparatus. Indeed, as noted, when attempting to organize a justice system of the future, it is necessary to take cognizance of the diverse dispute-resolution forums that have permeated the townships, recognizing the differences between the contexts they serve and realizing that the state's courts are peripheral institutions for many township residents. Any attempt at delineating a legal system of the future must therefore take the existing plurality of legal forums as its point of departure.

However, an acknowledgment of legal pluralism need not entail a capitulation to liberal pluralist political thinking for, as Fitzpatrick (1983) argues, it is possible to conceptualize an "integral pluralism" between social fields. Here, the fragmented dispute-resolution domain in South Africa might be conceived of as constitutively related to other fields (e.g., economic, political, social), which are themselves mutually constituted in a conjunctural complex that comprises a society at a moment in history. The idea of mutual and reciprocal constitution avoids the liberal pluralist implication that might overlook a real political logic -- with concrete effects -- of a given legal order, but at the same time does not cling to the extreme rigidity of some materialist conceptions (Pavlich, forthcoming). Another way of looking at this would be to acknowledge the importance of postmodern conceptions of law that recognize the importance of "diversity" and contextual difference with respect to people and the legal institutions that ought to exist. However, unlike many postmodern conceptions of law, I would suggest one need not abandon the quest for transcontextual conceptions of justice entirely, so long as we realize that these, too, are rooted in history and should therefore be scrutinized on an ongoing basis (Santos, 1987; White, 1988; Wickham, 1989). Indeed, the absence of these transcontextual conceptions could too easily licence unrestrained excesses or sanction a form of relativism that would lead to political apathy and even paralysis (Hunt, 1990a, 1990b).

Second, and related to the previous issue, the accountability required by politically aligned people's courts placed a check on the excesses of people's-court justice (a check that was absent from social-order courts) and implies the importance of holding popular justice accountable to credible, politically established, rules. In a future legal system, this does not mean that doctrines of specific political parties should constitute the rules; rather, certain socialist rules of law should be established through democratic and legitimate means (Thompson, 1975). These rules ought to be minimalist in the sense of allowing a plurality of dispute-resolution arenas -- most appropriate to given contexts -- to exist, but must set outer transcontextual limits. The nature of these limits must be such that their transgression would entail compromising fundamental precepts of socialist, "collective" justice (Fine, 1984; Cain, 1985; Hipkin, 1985). So long as the processes determining the nature of such justice are acceptable, and provided that the transcontextual edicts of law are themselves subject to regular review, a future legal edifice in South Africa might open up a political space in which to regulate conflict fairly, legitimately, and with a commitment to social justice.

Finally, the failure of people's courts to live up to their ideals of prefiguring the legal system suggests that an intricate balance has to be developed between the sometimes competing demands of remaining sensitive to a given community context without compromising the above-mentioned transcontextual ideals of socialist justice. The persecutory turn that many people's courts took was just such a compromise that sacrificed the ideals of prefiguration for the more "expedient" demands of specific contexts (Allison, 1990). What is at stake here is the requirement that legal institutions remain credible in the eyes those that they regulate, without thereby licensing excessive force, coercion, and constraint. Stated differently, one might say that this entails the problem of trying to find ways of "articulating the correct relationship between controls on the abuse of power on the one hand, and the effective exercise of power on the other" (Sacks, 1985: 146).

In this respect, Sacks may be correct to note the fundamental incompatibility between a formal rule of law and informal popular justice as a complementary opposition: the one gives expression to grass-roots power, while the other curtails the unsanctioned use of such power. Ideally in the future, these would exist conterminously, keeping a dialectical check on each other. Yet it may be that in practice, as Sacks (1985) suggests, one or another of these will achieve dominance at a given point in history, only to be later surpassed by its rival. If this is so, then we must bear in mind that justice in the future -- as in the past with people's courts -- will exist dialectically as an interplay between the two forms of justice; therefore, it may be necessary to evaluate it diachronically over time, rather than synchronically at one particular moment in history (Spitzer, 1982).

By way of conclusion, the previous analysis suggests that the legacy of people's courts is an ambiguous one: while the ideals of prefiguration and contributions to the struggle against apartheid might well be lauded, their persecutory excesses cannot be defended. Yet perhaps such an evaluation is quite beside the more important point of carefully examining the past, not to offer a pious retrospective critique, but instead to learn from erstwhile successes and failures. In the end, this is all that we have as we move into the silent political spaces, the recessed voids of legal reasoning, that will one day constitute the lived social reality of future South Africans.


(1.) As a cautionary note, though this analysis focuses on immediate processes, it does assume the recursive influence of wider, historically defined, structures. That is, South Africa's capitali mode of production embodies various intersecting, and unequal, social structures (e.g., racial, economic, gender, political, etc. [Pavlich, 1987]) and attendant modes of regulation that in the nature of informal justice (Baskin, 1988; Selva and Bohm, 1987). (2.) See The Star (September 15,1991). (3.) This legislation allowed various township courts to exist alongside, though substantively subservient to, the Magistrates and Supreme Courts. Such courts include the chief s (or headmen's [sic]) court, the Commissioners' Courts and the Courts of Appeal for the former. (4.) Evidence that this trend recurred in other townships is provided by Seekings (1989: 122), who notes how in 1976, a 19-year-old Sowetan youth died from over 100 sjambok strokes delivered by a lekgotla.


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Title Annotation:Focus on Resistance, Rights, and Justice
Author:Pavlich, George
Publication:Social Justice
Date:Sep 22, 1992
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