In Pursuit of Harmony: What Is the Value of a Court-Ordered Apology?

Abstract

Vernacular forums – or traditional courts – often order parties to apologise to one another. Versions of the Traditional Courts Bill (published in 2008/2012 and 2017) have consistently provided for an apology as an order that can be issued by such a forum. While there has been little reflection on what the value of an apology is when it is ordered, empirical evidence from vernacular forums shows that ordered apologies do not necessarily bear any relationship with reconciliation, which is the articulated goal. Alternative dispute resolution literature also shows that reconciliation is best achieved by other means than an ordered apology. This chapter explores the motives behind parties’, courts’ and legislators’ desire for the use of an ordered apology as a remedy, interrogates the conditions that produce the endurance of this desire, and challenges the conventional wisdom surrounding traditional dispute resolution practices and their relationship with harmony ideology. In so doing, it engages with the nature of dispute resolution processes as socio-politically performative environments in which social constructs are instantiated. It simultaneously considers the nature of customary law and the political economy of communities that continue to live under traditional normative arrangements in 21st-century South Africa.