Utility of indigenous methods of dispute resolution in intra-African Trade LI Kometsi 25685996 Thesis submitted for the degree Doctoral Legum in Private Law at the North-West University Promoter: Prof W Erlank Co-promoter: Prof C Rautenbach Graduation October 2017 http://www.nwu.ac.za/ Abstract Africa's economic growth depends in part on the growth of intra-African trade. Intra-African trade is lower than trade between Africa and the world. A number of reforms, including legal reforms, have been undertaken, in Africa in order to boost economic growth in general. Most notably, the recent past has seen the introduction of the so-called alternative dispute resolution methods (ADR), featuring mediation as its predominant aspect, with the purpose to enhance the rule of law, which it is believed is important for attracting and retaining foreign direct investment. However, the imported mediation has failed, due in part to its irrelevance to the African cultures and traditions. The innovations could be made useful by adapting them to the cultural context of the African dispute resolution landscape on the one hand, and by reflecting on the indigenous methods of ADR on the other hand. In order to determine how the indigenous methods of ADR can be utilised this study takes an in-depth look at the relationship between law and economic development. The conclusion is that there is a causal relationship between law and development. However, this relationship does not augur well for intra-African trade. For the law to have a positive causal effect to development, it must be relevant. Consequently, it is important to examine the nature of the imported mediation based on the legal transplant theory. Furthermore, the indigenous ADR landscape is reviewed with the idea to determine its fertility and therefore conduciveness to the mediation transplants. In the many reforms that have taken place in the past, indigenous ADR has been overlooked. There are, however, certain of its principles that can be used in developing a model of ADR that is relevant to Africa. Most of those elements are comparable to some of the principles of common or civil law. This is highlighted further by the peculiar informal justice systems operational in the context of cross-border informal trade. A comparative analysis between the African region and other regions of the world reveals that integration should steer the legal reform towards the production of a regional system of dispute resolution that takes into account the cultural uniqueness, albeit diverse, of Africa. However, state commitment and political will are lacking in this regard. Fewer African countries give express recognition to indigenous or customary law or even include i use of customary law in mediation. The introduction of ADR in most African countries in the form of court-annexed mediation, and in various other forms, provides an opportunity to adapt the innovations to the African needs, by revising the existing indigenous customary law. In the adaptation process, the utility of indigenous methods of dispute resolution in promoting intra African trade will be revealed. This dissertation contributes to this question by highlighting the need for more research into the usefulness of indigenous customary law in resolving particularly commercial disputes in intra-African trade. It concludes that, largely indigenous methods of dispute resolution, as gleaned from customary law can be used to resolve commercial disputes emanating from intra-African trade. However, there is need for more research in the possibility of a more universal mechanism that allows use of these processes in the context of Africa, with a possibility of exporting to the rest of the world. Key Words Alternative dispute resolution; mediation; intra-African trade; indigenous methods; informal cross border trade; law-growth nexus; legal transplants; colonialism; reform. ii Preface Glory be to the Lord, the God of my ancestors and my parents! I also wish to express my heartfelt gratitude to the North-West University (Potchefstroom Campus) for allowing me this precious opportunity to study for the LLD. The Dean and the rest of the faculty members were always wonderful to me. My supervisor, Professor Wian Erlank inspired me with his self-actualised personality and ubuntu. In the oral examination session, he actually noted the comments by the experts for me. During the process of writing this dissertation, he spent many hours editing the manuscript and inspiring me to excellence. His dedication to my project and commitment to our friendship will never be forgotten. Professor Rautenbach showed no less of ubuntu in co-supervising this dissertation. She was willing to share her old books and her office space to enable me to research. Her dedication, serious attitude towards scholarly perfection, wisdom and patience are greatly appreciated. I owe many thanks to my wife, Adv. LaboPhilani F Kometsi for allowing me to enrol for LLD, to use her mediation reports and her office during my research, and for organising interviews with the Judges and lawyers of the High Court of Lesotho for me. I owe special thanks to Adv. Rapelang Mosae who gave me a gavel1 as a present for being his lecturer and politely asked me to consider going for a PhD. 1 A gavel is a wooden hammer-like tool that is used by a judge in court to call for attention. When he was still my student, Adv Mosae gave me a gavel engraved with "Dr Kometsi", as a token of appreciation of me as his lecturer. The engraving has remained a constant if not nagging inspiration from the time I enrolled for LLD throughout my research. iii Table of Contents Abstract --------------------------------------------------------------------------------------------------------- i Preface ---------------------------------------------------------------------------------------------------------- ii List of Abbreviations ---------------------------------------------------------------------------------------- ix Chapter 1: Indigenisation of alternative dispute resolution through ubuntu 1.1 Introduction --------------------------------------------------------------------------------------------- 1 1.1.1 Alternative dispute resolution ------------------------------------------------------------------- 1 1.1.2 Indigenous methods of alternative dispute resolution (IMADR) ------------------------- 2 1.1.3 Indigenous Customary law (ICL) ---------------------------------------------------------------- 2 1.1.4 Legal transplants ----------------------------------------------------------------------------------- 3 1.1.5 The West ---------------------------------------------------------------------------------------------- 3 1.1.6 African ------------------------------------------------------------------------------------------------- 4 1.2 Intra-African trade ----------------------------------------------------------------------------------- 4 1.3 International commercial agreements ------------------------------------------------------- 8 1.3.1 International commercial disputes -------------------------------------------------------------- 9 1.3.2 Alternative dispute resolution ------------------------------------------------------------------- 10 1.3.3 Indigenous methods of ADR (IMADR) -------------------------------------------------------- 12 1.4 Problem analysis ----------------------------------------------------------------------------------- 13 1.4.1 The Problem. ---------------------------------------------------------------------------------------- 13 1.4.2 Indigenisation of ADR through ubuntu ------------------------------------------------------- 14 1.4.3 Hypothesis and objectives ---------------------------------------------------------------------- 17 1.4.4 Methodology ---------------------------------------------------------------------------------------- 18 1.5 Conclusions ----------------------------------------------------------------------------------------- 21 iv Chapter 2: The role of commercial dispute resolution methods in enhancing trade (and promoting economic development) in the context of Africa 2.1 Introduction ------------------------------------------------------------------------------------------ 24 2.2 The law-growth nexus revisited ---------------------------------------------------------------- 25 2.2.1 The development paradigm -------------------------------------------------------------------- 26 2.2.2 The contribution of law to development: the ROL conundrum ------------------------- 30 2.2.3 ADR and the ROL --------------------------------------------------------------------------------- 37 2.2.4 ROL, reform and development ----------------------------------------------------------------- 40 2.3 Conclusions ----------------------------------------------------------------------------------------- 50 Chapter 3: Analysis of the recent innovations in the African commercial dispute resolution landscape 3.1 Introduction ------------------------------------------------------------------------------------------ 52 3.2 Background history -------------------------------------------------------------------------------- 56 3.3 The Pros and Cons -------------------------------------------------------------------------------- 59 3.3.1 No ills to solve -------------------------------------------------------------------------------------- 59 3.3.2 The "A" in the ADR and the misconception revisited -------------------------------------- 61 3.3.3 The manner in which ADR was introduced in Africa -------------------------------------