395 The payment of compensation may, however, not exceed the value of the damage giving rise to the dispute or the amount determined by the Minister by notice in the Gazette from time to time, whichever is the lesser. 396 No legal representation is permitted in traditional courts. 397 Traditional courts must be open to all members of the community. 398 (7) Proceedings of traditional courts must be conducted in the presence of both parties to the dispute and traditional courts must allow the full participation of all interested parties without discrimination on any of the prohibited grounds of unfair discrimination referred to in section 9(3) of the Constitution. 399 The customary law of procedure and evidence applies in traditional courts. 400 The proceedings and records of traditional courts must be in the language most widely spoken in the area of the traditional court in question . 401 8. ALTERNATIVE DISPUTE RESOLUTION A competent legal practitioner must avoid the court process if the parties are agreeable to it. Court is usually fraught with high costs, time consuming and often achieves unsatisfactory results. This is where Alternative Dispute Resolution (ADR) can be helpful. ADR in general is an alternative to usual court proceedings. ADR is usually inserted with the consent of the parties involved, into contracts by competent legal practitioners for the convenience of their clients. It is the parties that settle the dispute themselves or with the help of a third party. What are the Problems usually encountered in formal litigation? 394 Schedule 2 of the Traditional Courts Bill. 395 See s 8 of the Traditional Courts Bill. See also, Memorandum on the Objects of the Traditional Courts Bill,2017. 396 See s 8 of the Traditional Courts Bill. See also, Memorandum on the Objects of the Traditional Courts Bill,2017. 397 s 7(4)(b) of the Traditional Courts Bill. 398 s 7(6) of the Traditional Courts bill. 399 s 7(7) of the Traditional Courts Bill. 400 s 7(8) of the Traditional Courts Bill. 401 s 7(9) of the Traditional Courts Bill.
105 LILS1514 2018 LILS1514 1. It is expensive; 2. It is time consuming; 3. The distance to court is usually far; 4. Policing is often inadequate which can make it difficult to protect your interests; 5. Most people do not understand the courts which have a different language and culture; 6. The accusatorial process often leaves the parties dissatisfied because it is a win-lose situation. 402 The most common forms of alternative dispute resolution are as follows: 8.1 Arbitration In arbitration, the parties conclude a contract in which they appoint a third party to resolve the dispute. 403 The parties can appoint anyone as an arbitrator who is an expert in the field, the process is similar to the court process in that the arbitrator listens to the parties and s/he gives a decision.
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