Abstract: The political changes in South Africa have brought about the need to redefine the nature of conflicts and the ways to resolve them. A tension exists in conflict resolution at the community level, caused by the community members' desire to solve their internal problems without the state's intervention. The establishment of a case committee, tasked with implementing acceptable justice administration procedures, can improve the situation while allowing the people opportunities to exercise self-governance.

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Friends of mine from Clermont, a township on the outskirts of Durban, were recently found guilty by a magistrate of having physically assaulted a woman while conducting a people's court (Xaba, 1993). The members of this people's court in the section of Clermont I will call "Avenue ZZ," were dealing with a case of witchcraft, in which the accused woman was sentenced to 250 lashes. The woman needed to be hospitalized after the inhuman sentence and later brought charges against her victimizers.

The magistrate involved in this case described the people's court sentence as "brutal and barbaric." He sentenced the 15 accused (four of them minors) to punishments ranging from five years of imprisonment to seven lashes on the buttocks for each of the four minors (Ibid.).

When I arrived in Clermont, a year after the physical assault, most of my friends were out on bail pending the trial (which is now over). They asked me to help by training them how to deal with conflicts in their community. In the aftermath of this "case" of witchcraft, they reconsidered and decided not to physically punish anyone because the victim could break ranks with the community and report the matter to the police. Moreover, as their current experience shows, bringing in the police means to end up in jail. Their reflection was not based on respect for the physical integrity of any human being, but was centered instead on the practical side of avoiding police involvement and keeping the community together in the process of solving internal disputes.

Curiously enough, my friends were not intimidated by the reaction of the victim or by the intervention of the police. They were still very keen to handle community conflicts in the people's courts. Their goal was to learn how to conduct the proceedings of their "court" properly, to avoid police harassment, and to maintain the necessary consent among the community dwellers, a process by which the "court" reproduces its legitimacy.

Through the discussions, interviews, and training sessions I conducted in Avenue ZZ, the story about this case became clearer. After being assaulted, the woman "charged" for being a witch went to the police while maintaining communication with the street leadership. In the process of her negotiations with the street leaders, she was urged to withdraw the charges. According to recollections, the woman was prepared to do so if one of her victimizers were to receive some form of punishment. The negotiations collapsed and the woman pursued the criminal case.

One year after my research and training in Clermont were completed and the magistrate's sentence had been delivered, my reflections turned to the following questions. First, what is the nature of organic mechanisms of community conflict resolution and what types of conflicts are being resolved? Who are the current players controlling or providing services in the area of community conflict resolution in South Africa? Second, how are organic community mechanisms of dispute resolution related to or perceived by new trends on facilitation, mediation, and negotiation, which the "experts," nongovernmental service organizations, and, to a lesser extent, the government are now launching in South Africa?

In this article, I will explore the issues raised above. The current period of political transition in South Africa has generated reconceptualizations of the nature of "conflicts" and the mechanisms needed to solve those conflicts. As such, community conflict resolution has received great attention. The dominant position suggests that communities are in crisis and need assistance, with solutions to their problems available only from "experts."

The ease of Clermont gives insight into the current situation in South Africa regarding community conflict resolution. Their experience allows us to locate the players in community conflict resolution and to identify solutions available to the community to resolve its problems. It also allows us to contextualize the whole project of conflict resolution within the larger political project for people's (horizontal) power within civil society.

I will first establish a theoretical framework to examine the current debate on community justice (Santos, 1992). Second, I will analyze community originated, organic mechanisms of dispute resolution (popular justice) and NGO-originated, nonorganic mechanisms of dispute resolution (Alternative Dispute Resolution). Third, I will explore the possibility of bringing together the different "schools" of community conflict resolution in South Africa, using the experience of Clermont.

Community (In)Justice?

Over the last several decades, academic debate has focused on how the community has enhanced its own sovereignty in relation to the central state in matters of justice (Harrington, 1985; 1992). The state's inability to provide solutions to all social conflicts opened space for "the local" to come forward with innovative methods of solving conflicts and redressing unfair social relations. Three main players account for this activity: the state, the service-sector organizations (nongovernmental organizations or similar institutions), and the community itself. Providing local-level solutions to conflicts and attempting to preserve order has been defined as "community justice" (Santos, 1992; Henry, 1985).

Worldwide, however, the interaction of these three key players in community justice is not similar -- if only because they embody differing amounts of social power. The players do occupy the same social position. In fact, on matters of community justice, what is found is a continuous struggle for hegemony among those players capable of providing solutions to social conflict. This struggle manifests its own contradictions, to the extent that opposing interests occasionally find common ground and make alliances.

Harrington's description of the emergence of the neighborhood justice movement in the U.S. amply illustrates the above argument (1985: Chapter 3). There we find community conflict, with the community in crisis and the state judicial system unable to provide a satisfactory solution to the community. The process of judicial deregulation is initiated by the state. However, this process is by nature conservative: the state's intention is to increase its control over society via deregulation, so as to avoid losing it. However, the state's initiative coincides with a process launched by grass-roots organizations that seek to provide more satisfactory mechanisms for solving community interpersonal conflicts, in which long-term human interaction is an important feature. Hence, state and grass-roots initiatives find common ground in establishing alternative dispute mechanisms to the state court: the neighborhood justice centers (Harrington, 1985: 96-98).

Yet the interaction of the different players defining community justice has a political implication: What does it mean to redefine the frontiers of state (national) sovereignty and to locate it at the local level on matters of justice? The political agendas of the three players are inherently conflictual: their location and interests in society are not the same. The political project, I suggest, is to discover which social force active in defining community justice is advocating and struggling for social justice and an end to exploitation and oppression. Moreover, it is relevant to examine whether the state or civil society could guarantee these aims. Fundamentally, however, there is a perennial conflict among those three players over the question of who is defining the "knowledge(s)" that should be applied to social conflicts.

In exploring community justice, I take into consideration Santos' (1991: 132) conceptualization of community justice and narrow the discussion to three manifestations: state justice, private justice, and popular justice. After identifying each, it is necessary to assess their relative strengths in the community when defining justice. In addition, it is important to assess which player provides the most satisfactory solution.

Two additional concepts, "community" and "justice," require further examination. To which community do I refer? The community is always invented and it develops out of the different needs of those who belong to it or who want to use it. The community never represents monolithic interests. On the contrary, a broad range of different, often conflicting interests coexists. There is a continuous exercise of hegemonic and counterhegemonic practices in the community by different community members or groups whose interests vary. Moreover, those community interests are articulated over time (in a hegemonic project that aggregates all interests), constituting a particular struggle for achieving a specific aim. The community, then, becomes a "fraction of a second" project that must be continuously reproduced, incorporating many different interests, power relations, and struggles, while articulating a "community need."

What type of justice is at issue? The debate over community justice has centered on maintaining order and peace within a particular location, where relationships have a long-term existence (Harrington, 1985: 87). This approach does not necessarily deal with ending inequalities or expanding civil rights; rather, its focus is on reducing social imbalances and encouraging human harmony. Reconciliation of parties in dispute, instead of a culture of rights, takes prominence in this process of justice in the community.

Merry's argument on the emergence of a "new legal pluralism" (1988: 872) is useful for exploring the nature of community justice. My proposition is that, at the "community" level, there is a reduction in the use of state law, allowing other mechanisms of social ordering and control to regulate human interaction. State law remains in a less visible form, while other mechanisms of ordering take its place. However, state law does not disappear: it interacts in a discretionary way. As Merry (1988: 873) suggests:

The new legal pluralism moves away from questions about the effect of law and society or even the effect of society on law toward conceptualizing a more complex and interactive relationship between official and unofficial forms of ordering. Instead of mutual influences between two separate entities, this perspective sees plural forms of ordering as participating in the same social field.

Finally, the previous discussion returns us to our case study, the Clermont township in South Africa. Current debates in South Africa on community justice reflect the influence of the international literature on the topic. However, also of interest is the impact the local South African experience has had on the broader debate.

Two main players dominate the sphere of community justice in this period of political transition in South Africa: the community itself, through organs of popular justice, and nongovernmental organizations, which provide services in the area of community conflict resolution (private justice). The state (which still epitomizes apartheid) is a non grata entity. Despite many attempts by the government to deregulate the formal court and to provide access to justice, its existence and initiatives are still illegitimate to most of the population.(1) Hence, I will focus my analysis on two areas of community justice that enjoy support and acceptance: popular justice and private justice.(2)

(Re)solving Community Conflict in South Africa

Popular justice deals with organic mechanisms of dispute resolution and ordering in the community. It originates out of the need of community dwellers to have peace in their locality. It also embodies a partial rejection of state justice. I say partial because in many of its expressions, popular justice reappropriates state symbols and codes of justice. In the process of reappropriation, however, popular justice tends to define a new legality, a new way of ordering society (Brady, 1981). Popular justice deals with a multiplicity of matters, without distinguishing between criminal and civil problems.

Popular justice is illegal; although the state tolerates its existence under certain conditions, generally it represses it. Popular justice appropriates instances of state sovereignty; it redefines the notion and role of the rule of law and legitimizes certain social practices prohibited by the state or provides solutions to certain activities (also prohibited by the state) in a different manner. In specific experiences, popular justice has originated as a class reaction to the rule of the oppressors (Santos, 1982), or after periods of political transformation in which experiences of popular justice have been incorporated into the new society (Salas, 1983).

In South Africa, for example, popular justice established a distinctive history in the mid-1980s when under the leadership of the United Democratic Front (UDF). Communities organized prefigurative institutions of "people's power" (Allison, 1990). Different expressions of popular justice originated during that period, the most well known being the people's courts (Pavlich, 1992). However, since the beginning of the 1980s, popular justice has not received the blessing of the state (Sharf, 1988) and most academics and NGO's also disapproved of it. In contrast, at the community level, popular justice continues to enjoy relative support today. The support for popular justice varies according to the needs of the community dwellers, the ability of organs of popular justice to constantly reproduce their legitimacy, and to its relation with the state's formal structures.

South Africa has generated multiple expressions of popular justice, of which the famous people's courts are just one. There are also street and area committees, which mediate community dwellers' disputes (Burman and Sharf, 1990; Nina, 1992); anticrime committees engage in community policing; and people's structures maintain the necessary peace and order in a workers' hostel (Nina, 1993a). What distinguishes popular justice in South Africa from other expressions of "justice" in the townships is that the people involved in the structures of community justice have been elected by the community structures and are accountable to those structures.(3)

In the last decade, parallel to the development of popular justice in South Africa has been the consolidation of non-state solutions to community problems. Alternative Dispute Resolution (ADR) mechanisms are part of this process. Of all the mechanisms within the ADR, mediation has taken off most strongly in the communities.

The model of mediation applied to community conflicts originated in the U.S. and has been implemented in the South African context (see, in general, Kraybill and Arendse, 1992; ACCORD, 1992).(4) This type of mediation follows a standardized format (e.g., introduction stage, story-telling stage, problem-solving stage, and agreement stage). Mediation in South Africa's communities has been applied to a variety of problems -- from family and neighborly disputes to solving disputes between political parties and even within the structures created by the National Peace Accord at the community level (e.g., Local Peace Committees).

However, all mediators constantly state their unwillingness to deal with criminal matters. Criminal cases are viewed as belonging to the realm of the state, which explains why this style of mediation in South Africa has not attempted to deal with them (see Harrington and Merry, 1988: 719). Aside from criminal matters, mediation-ADR deals at the community level with all types of community problems, including intergroup and political problems (e.g., Independent Mediation Service of South Africa, IMSSA) and interpersonal problems (Community Dispute Resolution Trust, CDR-T). In addition, it provides training and skills in negotiation and mediation for community leaders and activists (Centre for Inter-group Studies, CIS; and African Centre for Constructive Resolution of Disputes, ACCORD).(5)

For many academics and for the NGO's behind this initiative, mediation is the best problem-solving mechanism. According to this "school," mediation eliminates the competitiveness of the court adversarial logic. Mediation provides each party in a dispute the opportunity to become part of the "process" of solving their own problems. Mediation is human and more personalized than the court. However, with rare exceptions, there are no attempts to integrate that method of dispute resolution with other methods that are already in existence in the community. In the current period of political transition, mediation schemes and training are provided in different communities without integrating (so far, at least) organic mechanisms of dispute resolution. The "wheel" of community dispute resolution is reinvented without considering what is already happening (see Nina, 1992).

Ideologically speaking, in South Africa the difference between popular justice and mediation/ADR is great. Even in this transition period, the community exercising popular justice is consciously attempting to gain autonomy from the state.(6) Within the realm of popular justice, the community is capable of dealing with all kinds of matters: the state has no exclusive jurisdiction in any matter.

Yet the drive for autonomy from the state, which popular justice in South Africa exercises today, is different from the experience of the 1980s. In scarcely any African community today are the community structures dealing with "organizing people's power" for taking over state power (Nina, 1993a: 3-4). Nonetheless, different expressions of popular justice are in operation throughout most of the African communities of the country (Seekings, 1992). Today, these mechanisms of popular justice do embody the need for maintaining structures of self-governance at the local/community level. In this sense, popular justice still represents a challenge to state authority, but the element of breaking away from the state has disappeared. Popular justice attempts to articulate a project of community governance, establishing a level of autonomy from the central state, but without completely separating from it.

Instead, most communities are attempting to deal pragmatically with state justice (courts and police), as needed and defined by the community members themselves (Nina, 1992: 20-21). In addition, in their praxis of popular justice, community members have also learned how to appropriate "legal jurisdiction" over areas traditionally controlled by the state, without "breaking the law." The exercise of self-governance at the local level requires constructive relations with the state. In this relationship, the community continues to operate within areas controlled by the state, without facing the state authority/repression.

Popular justice, then, still constitutes a radical attempt within civil society to redefine the relations of power between state and citizen. This process of redefinition of the relation "state/citizen" also embodies a new way of thinking, in which collective participation and a rapid dispensation of social justice are always present.

In contrast, mediation/ADR in South Africa operates more conservatively in relation to state justice. It locates itself where state justice is, according to the mediation/ADR discourse, ineffective. This school of community conflict resolution suggests, for example, that state justice is effective in criminal matters, while in civil matters the formal court is not necessarily the most effective institution. Specifically, at the community level the argument suggests that mediation/ADR is the most effective mechanism of conflict resolution.

Moreover, the way in which mediation/ADR is constructed in South Africa redefines the community/communal nature of parties in dispute and a "third neutral party," which exists to "assist the parties to find by themselves a solution to their problem." In South Africa, the community is non-existent in the mediation/ADR process and the third party is a mere outsider who is able to help.

In contrast to popular justice, mediation/ADR has not shown an interest in organizing self-governance within civil society. Although mediation/ADR definitely organizes dispute resolution within civil society, the way in which it is linked (explicitly or implicitly) with state justice defines its limited ambition for the distribution of political power at the horizontal level.

So far, few have criticized this model of mediation/ADR, which is rapidly being implemented in South Africa (Tshabalala, 1992; Nina, 1992). The model is taken for granted and is being implemented nationwide, without considering any local, regional, or national adjustment or organic mechanisms of conflict resolution. Mediation a la Americana is being reproduced and recreated countrywide.

>b>Reconciling/Difference: The Case of Clermont

To reconcile mediation/ADR with popular justice in South Africa, it would be necessary to Africanize the model of mediation that has been brought into the country. It would also be important to consider the criticisms that have been raised against that type of mediation in other countries (see, in general, Abel, 1982; Fitzpatrick, 1992). In addition, special attention should be given to the process of adaptation that is necessary before bringing in a foreign model of mediation: cultural practices in South Africa are completely different from those in the U.S. (Tshabalala, 1992: 5; Lederach, 1986).(7)

This process of Africanization will also encompass the need for the "experts" and their "knowledges" to be critically examined (Foucault, 1977: 207-208). The presumption that "we" could go to "them" and give the correct instructions and solution to any problem has to be rethought. This constitutes a challenge to all of us to reconsider the ideal of "empowering the community." Do we really empower the community through the process of mediation/ADR we are creating, or do we effectively disempower it by "telling them" how to do it, by assuming that our intellectual knowledge is the only/correct one? This is linked to the whole notion, then, of what "community conflict" is. Will it ever disappear or should it be recreated continuously by the "experts" in order to justify their existence? In South Africa, this question has yet to be raised.

No one questions the need for training (neither community members nor those in the service sector or academia), but what is questioned is the form training, with the particular solution it embodies, takes in the communities. Many community dwellers who are active in civic structures would like to receive training, but do not necessarily wish to transform the operative structures themselves. In this sense, the training that "experts" impart to community members should be modified before being integrated into existing community structures. If mechanisms of popular justice, for example, are in operation in a particular community and they solve community problems in a satisfactory manner, then instead of replacing them, outside knowledge should attempt their consolidation.

The Clermont township was an interesting and difficult experience. It was interesting because in contrast to other communities of Natal, which are going through a period of civil war, Clermont's history has been quite peaceful. The history of the civic structure is quite confusing, however, and its legitimacy has been contested for several years. Instead, UDF structures and, more recently, the African National Congress (ANC) branches, have ruled the community with a great deal of legitimacy and consent by the dwellers. The level of relative peace, then, allowed me as a researcher and trainer to operate with a great deal of freedom.

The difficult side of working in Clermont, however, was a byproduct of the same overdetermination that the political organization has in the daily life of the dwellers' civic movement (Nina, 1993b). On many occasions, the daily needs of community dwellers are linked to the needs of the national agenda of the ANC, a situation that can preclude or interfere with the community's immediate needs. This process also interferes with the development of organic and autonomous structures of community serf-governance.

My involvement as researcher and trainer was from May until July 1992. A community member requested my help in training the local structure (street committee) of a particular area of Clermont.(8) Specifically, this street (Avenue ZZ) had its own case committee, composed of four elected members from this street. The case committee dealt with all kinds of disputes that were reported to the street committee or to members of the case committee.

The process of solving a dispute was known by the case committee members as a people's court. In contrast to the experience of the 1980s, however, this people's court lacked judges, prosecutors, marshals, and community involvement (Burman and Sharf, 1990). Indeed, it was organized by the case committee so that its four members would mediate (that is, facilitate the discussion) between the disputing parties. The "court" sits in the house of any of the parties in dispute. In a very ordered way, members of the case committee listen to the controversy, but do not impose a solution.

In contrast to the other popular justice structures I have witnessed in South Africa (Nina, 1993a), members of the dispute-resolution structure of Avenue ZZ in Clermont lacked many skills. For example, during a general discussion in which they explained their system to me and I explained other systems in operation both in South Africa and in other countries, the following areas of development were identified: case reporting, facilitation techniques, techniques for identify the controversy and possible solutions, and types of punishment. We also discussed the need (or lack of one) to relate to state structures (police and the magistrate courts).

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