The Use of Non-Adjudicative Methods to Resolve Discrimination Complaints under the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000
| Author | Conrad Rademeyer |
| Date | 01 September 2001 |
| Published date | 01 September 2001 |
| DOI | 10.1177/135822910100500304 |
International Journal
of
Discrimination and the Law, 2001, Vol. 5, pp. 129-146
1358-2291/2001 $10
© 2001 A B Academic Publishers. Printed
in
Great Britain
THE USE OF NON-ADJUDICATIVE METHODS TO
RESOLVE DISCRIMINATION COMPLAINTS UNDER THE
PROMOTION OF EQUALITY AND PREVENTION OF
UNFAIR DISCRIMINATION ACT 4 OF 2000
CONRAD RADEMEYER
University
of
Cape
Town, South
Africa
ABSTRACT
The search for adequate structures to successfully manage the conflicts underpin-
ning discrimination complaints necessitates an investigation into the existence
of
the ideal conflict resolution methods.
If
ideal methods exist, it is important to
evaluate the provision made in South Africa's Promotion
of
Equality and Preven-
tion
of
Unfair Discrimination Act 4
of
2000 for the use
of
such methods. The
assessment, in the first part
of
this paper,
of
the nature
of
conflict and the various
types
of
conflict resolution methods identifies non-adjudicative methods as the ideal
conflict resolution methods, although it is acknowledged that these ideal methods
might not necessarily be the most suitable methods. Apart from identifying the
advantages
of
the non-adjudicative methods, the paper also examines the concerns
raised about the use
of
these methods. The final part
of
the paper critically evalu-
ates the scope allowed in the Promotion
of
Equality and Prevention
of
Unfair Dis-
crimination Act for the use
of
non-adjudicative conflict resolution methods, as well
as the proper assessment
of
the conflicts in order to establish the most suitable con-
flict resolution method. The paper finally raises the issue
of
not allowing direct
access to Equality Courts in order to ensure proper assessments
of
conflicts and the
best possible use
of
non-adjudicative methods.
INTRODUCTION
The
success
of
the South Africa's Promotion
of
Equality and Preven-
tion
of
Unfair Discrimination Act 4
of
2000 (hereinafter referred to
as the 'Equality
Act')
will depend on whether adequate structures
and mechanisms are
in
place to properly resolve the conflicts inher-
ent
to discrimination complaints lodged under this legislation.
The
mechanisms available to address conflict
can
be
divided into
three main groups, namely power-based methods, rights-based
methods1 and non-adjudicative methods (interest-based methods). Per-
spectives on conflict influence the way in which people attempt to
resolve their conflicts.
2
130
To
identify the ideal conflict resolution method,
it
is important
to
assess some key aspects
of
conflict as well as
the
various methods
of
conflict resolution. This will
be
the focus
of
the
first
part
of
my
paper. This
paper
will suggest that non-adjudicative conflict resolu-
tion methods are
the
ideal means
of
resolving conflict. This
however
does
not
mean
that non-adjudicative methods should
be
used indis-
criminately to resolve all conflicts.
Under
certain circumstances
the
ideal method might
not
be
the most appropriate method.
3 A thorough
investigation
of
the development
of
every conflict is necessary
to
identify the most suitable conflict resolution method.4
On
the assumption that non-adjudicative methods are
the
ideal
conflict resolution methods, the final part
of
the
paper
will investigate
whether and to what extent provision is
made
in
the
Equality
Act
for
the use
of
non-adjudicative conflict resolution methods to resolve dis-
crimination complaints.
CONFLICT
IN
THE
DISCRIMINATION
COMPLAINT
Although it is very tempting to articulate a complaint about an
alleged infringement
of
the right to equality (or an infringement
of
the provisions
of
the
Equality Act)
in
terms
of
the
legal positions
and
rights
of
the
parties involved in the complaint5, recognition should
be
given to the fact that the complaint concerns a conflict with its
own
particular history, characteristics and dynamics.
The
conflict is
best
managed
if
all its dimensions are taken into consideration.
6
Conflict exist when one
or
both parties in a relationship are
of
the opinion that they
have
different interests, needs, aspirations
or
values and
do
not
believe7 that these different interests, aspirations
and needs
can
be
satisfied concurrently.8
The
conflict is often mani-
fested
when
one
of
the parties to the conflict, through his
or
her
con-
duct and
by
the use
of
the
power
available to
him
or
her, attempts
to protect
or
further his
or
her
own
interests, needs, aspirations
or
values.9
Such
action will inevitably threaten
or
negate
the
interests,
needs, aspirations and values
of
the other party and
may
even
result
in reactionary conduct. Interests, needs, aspirations
and
values under-
pin conflict.
10
Where an attempt is
made
to resolve a conflict,
it
is
very important that these underlying interests, needs, aspirations and
values are identified, understood, sensitively dealt with and addressed
in
the
solutions that are suggested. Addressing these underlying
aspects
of
the conflict should result in mutual satisfaction with
the
outcome and is likely to prevent
the
conflict from recurring.11 •
Conflict poses a threat to
the
continued existence
of
relationships
and
often leads to a total breakdown
of
relationships.
12
An
effective
method
of
conflict resolution should
be
able to protect
or
restore relationships.
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