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The Appeal of Restorative Justice to Policy Makers

United Nations Crime Congress: Ancillary Meeting Vienna, Austria, 2000 Steve Swart Member of Parliament, African Christian Democratic Party, South Africa

1. INTRODUCTION

Chairman, Delegates, it is indeed a great honour to serve on this panel and to address you today, and my thanks to the International Prison Fellowship for convening these ancillary meetings. There can be no doubt that IPF is a leading institution in advocating criminal justice reform world-wide, and it is a great privilege to be associated with Dan Van Ness, Pedro Moreno,  Derek Brookes and other members of IPF. I furthermore fully endorse PFI’S declaration[1] adopted on 24 November 1997 in Manila, relating to the organisation’s understanding of Biblical Justice as well as the draft Declaration of Basic Principles on the Use of Restorative Justice Programmes in Criminal Matters (dated 22 November 1999).

The appeal of restorative justice to policy makers and the question whether, in the South African context, victims of crime, compensation for victims and community participation in the criminal justice system require legislative reform can be answered only when the situation with regard to crime in South Africa is considered.    

Political and social transformation has affected South Africa profoundly and this process, though welcome and widely recognised as a true miracle of God, has been far from painless. Most South Africans are overwhelmed and preoccupied with crime, its effects and how to combat it. Most categories of crime have stabilised from late 1996 at unacceptably high levels. The callousness of the crimes, particularly the rapes and murders has resulted in society calling for harsher measures, including the re-introduction of the death penalty.

Last year our Constitutional Court[2]in upholding stricter bail legislation and agreeing with the state’s submissions stated that:

“There can be no quibble with Mr D’Oliviera’s submission that over the last few years our society has experienced a deplorable level of violent crime, particularly murder, armed robbery, assault and rape, including sexual assault on children. Nor can there be doubt that the effect of widespread violent crime is deeply destructive of the fabric of our society and that accordingly all steps that can reasonably taken to curb violent crime must be taken.”

There is no doubt that the South African criminal justice system is not coping and that without an equitable and adequate system of law enforcement and criminal prosecution, there is the danger that the high levels of crime and violence will become institutionalised in the social fabric of our society.

In this paper I would like to focus on the policy shift in South Africa from a criminal justice system based on retribution to that based on restorative justice – with an emphasis on addressing the needs of the crime victims and incorporating communities. In this process I will refer to various recommendations of the SA Law Commission, as well as referring to specific examples of the practical application of Restorative Justice in South Africa.

L Camerer[3] states that the SA government finds itself doing a balancing act – on the one hand upholding a hard-won commitment to human rights – including those of suspects – and on the other, addressing the angry (if not legitimate) calls for vengeance and retribution by many South Africans who have been victimised by crime and want to see justice done. Furthermore, there are existing tensions created by a climate of crime control which call for tougher sanctions for criminals, and the innovative approach of the government’s National Crime Prevention Strategy (NCPS) which holds to the principles of restorative justice, alternative sentencing and victim empowerment. It must be mentioned that the NCPS released in May 1996 promotes a victim-centered approach to crime where government is required to deliver a crime prevention approach which places the rights and needs of victims at the centre of the stage.

Camerer[4] is of the view, which is shared by many, that: “it is only by a clear focus on the needs and rights of crime victims and an adequate response to them, can government hope to restore faith in the criminal justice system as a system of justice for all South Africans”.

In South Africa – with the unacceptably high crime rate – what may seem a desire for retribution is often actually a concern for public safety. A particular appeal of a restorative justice approach is that whilst it might not deliver retribution, it can potentially deliver at least as much public safety as the present system[5]. Therein lies the appeal to policy makers grappling with the demands of society for safer streets.

Whilst the unacceptably high crime rates do understandably result in a cry for retribution, “the point about a retributive system is that you deal with the state and at the end of the day the victim is left angry and bitter, maybe with some feelings of vengeance satisfied, while the offender goes off to prison to learn new tricks, to be further brutalised and dehumanised, and continues on that cycle of crime that lasts forever”. Lapsley[6]

2. HOW CAN RESTORATIVE JUSTICE ASSIST  VICTIMS OF CRIME?

Although there are various provisions in our legislation[7] to provide protection or limited compensation to victims of crime, there can be no doubt that victims have been neglected in South Africa. It would appear that the South African legal system is geared to the protection of the rights of the offender while victims enjoy little protection. Whilst the National Crime Prevention Strategy, sought to address the needs of victims by setting up a national program in Victim Empowerment, much is still to be done in this regard. How can Restorative Justice help victims of crime come to terms with their ordeals?

Judge Fred McElrea[8] of New Zealand holds the view that, “Restorative justice offers to the world the healing power of repentance and forgiveness, of justice with mercy, of God’s love for all people. These are ideals in which all people can share. If there is to be true accountability in the community it is time we breathed the spirit of justice”.

Jim Consedine[9] makes the connection between Justice, morality and the law: “Justice is an active and life-giving virtue which defends and promotes the dignity of every living person and is concerned with the common good insofar as it is the guardian of relations between individuals and peoples. At its deepest level it is rooted in love and is tempered by mercy…A reflection on justice and a fully developed morality must include a consideration of the place of respect, mercy and forgiveness. Of these three forgiveness is the toughest of the three to practice.”

3. WHAT ROLE DOES FORGIVENESS AND ACKNOWLEDGEMENT OF WRONGDOING PLAY IN RESTORATIVE JUSTICE?


Michael Lapsley,[10]a priest who lost both his hands and an eye in a letter-bomb, states that, “…forgiveness is tied to restorative justice.”

We, in South Africa, fortunately have the wonderful example of our ex-state president, Nelson Mandela who during his term of office epitomised forgiveness and reconciliation. Furthermore Archbishop Desmond Tutu, having listened to more than one-thousand eye-witness accounts of atrocities as chairman of the South African Truth and Reconciliation Commission, says, “I have come to believe fervently that forgiveness is not just a spiritual thing that is ethereal and unrelated to the real world, the harsh world out there. I have come to believe very fervently that without forgiveness, there is no future.”[11]

The St James church massacre in Cape Town in 1993, in which three gunmen killed eleven worshippers, is a further example of the type of forgiveness we are discussing in this context. According to Bishop Frank Retief of St James the immediate response of the majority of the congregation was to offer forgiveness to the perpetrators. He quotes D Van Ness (Crime and its Victims) and writes[12] that a crime of any nature or a deliberate injury inflicted on anyone establishes a personal relationship between the perpetrator and the victim. It is one thing for the state to bring the offender to book and to sentence him to a period of imprisonment, but there is still the sense that there is something unresolved between you and the offender. How does the victim handle this strange relationship?  Does the victim live in lifelong fear of the criminal being released or embark on a lifelong search for revenge? The answer, according to Bishop Retief, is that sooner or later the victim must face the challenge of forgiveness: “We chose to deal with it by means of forgiveness. Not… by condoning their actions but rather by a conscious and deliberate decision not to harbour revenge”. He emphasises, however, that “for true forgiveness to be received there has to be repentance and, as far as possible, restitution.” 

Rev Jim Consedine[13] confirms this approach that “(f)orgiveness is not something that the victim does for the benefit of the offender. It is the process of the victim letting go of the rage and pain of injustice so that he or she can resume living, freed from the power of criminal violation.”

The further appeal of the restorative justice model is the acceptance of blame by the offender, and the recognition of the need to make restitution. Once this stage has been reached, the restorative process can commence. Unfortunately this has not been the traditional approach where the offender has in fact sought to evade accountability, and the legal process has degenerated into a contest between the state and the defence lawyers to establish guilt or obtain an acquittal.

Judge McElrea[14] goes on to say that “the criminal justice system encourages you to avoid responsibility and deny, and hope that you might get off. In a family, such behaviour would be considered dysfunctional. In a community it is still dysfunctional.”

 An aspect further particularly appealing to me is that restorative justice requires a paradigm shift from a world in which law enforcement and prisons are the norm for handling conflict to one in which self-restraint, sacrifice and reconciliation are the norm[15].

4. THE ROLE OF THE SOUTH AFRICAN LAW COMMISSION IN RECOMMENDING POLICY REFORM IN THE CRIMINAL JUSTICE SYSTEM.

As a legislator, I cannot sufficiently emphasise the role played by the South African Law Commission[16] in the process of law reform in South Africa.

The objects of the Commission are set out as follows in its enabling Act: to do research with reference to all branches of the law of the Republic and to study and to investigate all such branches of the law in order to make recommendations for the development, improvement, modernization or reform thereof, including-the repeal of obsolete or unnecessary provisions; the removal of anomalies; the bringing about of uniformity in the law in force in the various parts of the Republic; and the consolidation or codification of any branch of the law.

In short, the Commission is an advisory body whose aim is the renewal and improvement of the law of South Africa on a continuous basis.

The SA Law Commission has several on-going projects most of which will have far-reaching effects on the criminal justice system. I am indebted to the Commission as I have drawn heavily on its issue papers and discussion documents, particularly those pertaining to Restorative Justice, Community Dispute Resolution Structures and Juvenile Justice. These issue papers are published to elicit public comment and the final reports usually contain draft legislation. I wish to acknowledge the outstanding work performed by the Law Commission, particularly in this context of encouraging public debate and awareness around the issue of restorative justice and sentencing. The Law Commission undoubtedly plays a key role in influencing policy and legislation in South Africa. I must, however, point out that the Law Commission makes recommendations to Cabinet, but that the legislative authority still clearly vests with Parliament.

5.THE LAW COMMISSION’S RECOMMENDATIONS REGARDING RESTORATIVE JUSTICE

In its Issue Paper on Sentencing Restorative Justice[17] the Commission dealt specifically with restorative justice, including compensation for victims of crime and victim empowerment. The purpose of this Issue Paper was to consider and elicit a public response to the question of restorative justice which included a consideration of the involvement of victims of crime in the criminal justice process, reparation to victims of crime and community participation in the criminal justice process and to determine whether there was a need for legislative reform. It must be mentioned that such Issue Papers are not to be regarded as the Commission’s final views, and that final reports are being prepared in this regard.

The paper stated that since the Republic of South Africa is part and parcel of Africa and whereas certain judicial principles of Africa are also bound to be applied in South Africa, it is appropriate to reconsider the victims of crime as the "lost son" of the judicial process from an African perspective. Traditionally African principles are based on reparation and less emphasis is placed on the retributive aspect of crime. The victims of crime are therefore central in those judicial systems. The question arises whether the so-called African principles should also be accommodated in the search for a system which will give due recognition to the victims of crime[18].

 It found that a desire has been expressed to return to more traditional systems of justice which give greater prominence to the victim, greater emphasis on the issue of redress and community involvement in the fight against crime and healing of the community. When crimes are committed communities feel violated as well and they have needs too[19].

Restorative Justice is therefore in the first instance, a form of criminal justice based on reparation. Actions are aimed at repairing the damage caused by the crime, either materially or at least symbolically. When someone wrongs another, he or she has an obligation to make things right. The goal of the process is to heal the wounds of every person affected by the crime. In this context reparation to the victim and community is regarded a duty or obligation on the offender[20].

Secondly, it found that communities are also affected by the commission of crime. If communities believe that the criminal justice agencies can effectively prescribe solutions to the crime problem, there is a risk that they may cease to look to preventative obligations which are fundamentally in their own hands[21]. It found that crime is best controlled when members of the community are the primary controllers through active participation in persuading offenders to accept responsibility for their actions, and, having done so, through concerted efforts of participation, reintegrate the offender back into the community of law abiding citizens. Low crime communities are communities where people do not mind their own business, where tolerance and deviance has limits, where communities prefer to handle their own crime problems rather than hand them over to the professionals.

The Commission suggested[22] that in general the philosophy of restorative justice is based on three beliefs, namely:

  • Crime results in harm to victims, offenders and communities. 
  • Not only government, but also victims, offenders and communities should be actively involved in the criminal justice process. 
  • In promoting justice, the government should be responsible for preserving law and order, and the community for establishing peace.

 

These general beliefs lead to a number of elements common among restorative justice programmes, including:

  • Crime is regarded an injury to victims and community peace. 
  • It focuses on putting right the wrong. 
  • The victim, community and offender are active roleplayers in the process. 
  • Compensating victims for their losses through restitution. 
  • Empowering victims in their search for direct involvement in the criminal justice process. 
  • Assisting victims to regain a sense of control in the areas of their lives affected by the offence. 
  • Holding offenders responsible for their behaviour.

 

The Commission recommended the following definitions in its project on Community Dispute Resolution Structures[23] when dealing with Restorative Justice:

“Restorative justice’ represents a way of dealing with victims and offenders by focusing on the settlement of conflicts arising from crime and resolving the underlying problems which caused the conflict. It is also, more widely, a way of dealing with crime generally in a rational and problem-solving way. Central to the notion of restorative justice is the recognition of the community rather than the criminal justice agencies as the prime site of crime control.  Restorative justice is therefore in the first instance, a form of criminal justice based on reparation.”

‘Retributive justice’ is a form of criminal justice based on response to crime primarily by punishing offenders, yet virtually ignores the victims and communities hurt by crime.’

The Commission considered[24] the issue of compensation for victims of crime, victim empowerment and community participation with specific reference to the following issues:

Consultation between prosecutor and victim, the victim impact statement, victim-offender mediation including,

  • Family group conferences 
  • Community Youth conferences 
  • Community Aid Panels 
  • Circle sentencing.

 

and recommended that legislation should be passed dealing with a wide range of issues to co-ordinate victim support service services in South Africa and to provide for principles to govern the treatment of victims.

The Commission through its project committee on Victim Empowerment has also recommended a compensation scheme for South Africa (which would include restitution for victims of crime) and this aspect is presently being investigated by an expert in the field. It is interesting to note that a Private Members Bill relating to this aspect has been referred to the relevant Parliamentary Portfolio Committee, suggesting a state fund be established to compensate victims of crime.

6. THE NEED TO INVOLVE COMMUNITIES IN THE CRIMINAL JUSTICE PROCESS THROUGH COMMUNITY DISPUTE RESOLUTION STRUCTURES

A further aspect of particular appeal to policy makers and legislators are the restorative justice principles relating to the inclusion of communities in the criminal justice process. 

Although this aspect was touched upon in the Commission’s Issue paper on Restorative Justice, its Discussion paper[25] on the role of Community Dispute Resolution Structures dealt with this aspect in depth, and will profoundly affect policy and legislation

The Law Commission’s proposals stressed the need to empower community forums with facilities and training, without destroying the inherent flexibility and legitimacy which keeps them close to their communities.

The Commission indicated[26] that over the years, South Africa’s formal legal system has been perceived by certain sections of the population, notably black South Africans as illegitimate (because of its association with the apartheid government), as repressive (through its implementation by the police force) or as an expensive process in which the cost of justice is prohibitive.  For many, a foreign, dominant, Western legal system, is seen to be superimposed on an intuitive, indigenous legal system.[27] It is seen as alien, inaccessible and inappropriate for dealing with conflict which most South Africans experience in their daily lives.[28]  This invariably prevents meaningful access to courts:  even those who have access are often victims of delay.   Many Black communities have actively rejected this system which has been seen as intricately linked to their oppression.

In contrast to the Roman Dutch[29] legal system based on retributive justice, where the object is to establish blame and administer punishment, the informal structures attempt to promote healing and enforce community values by using social pressure.  Restorative justice and reiterative shaming are two of the most important tools of the enforcement process.

According to the Congress of Traditional Leaders of South Africa[30] (CONTRALESA), indigenous African customary courts apply a form of restorative justice. In the rural areas the way in which restorative justice works allows disputing families to reconcile. Within many indigenous communities throughout South Africa, a philosophy of reconciliation is practised. This philosophy ultimately replaces vengeance with forgiveness, alienation with healing, and punishment with education.  

Skelton,[31]confirms this approach: “At the heart of African adjudication lies the notion of reconciliation, of restoration, of harmony. The job of a court or an arbiter is less to find the facts, state the rules of law and apply them to the facts than to set right a wrong in such a way as to restore harmony”. In this system there was not much of a distinction between criminal and civil matters. The issue was that a wrong had occurred for which amends must be made.

Community courts should be distinguished from the kangaroo courts which existed within a political context in the 1980s, when “mob justice” was meted out by people who did not represent structures which ordinarily would deal with justice issues in those communities, and which earned popular justice an unsavoury reputation[32].

An important aspect of any future model of community forum is the need for these forums to operate according to basic principles of law and respect for the Constitution of the Republic of South Africa.  Any model chosen should be framed within a culture of rights and should be used to promote respect for and obedience to the law at local level.[33]

The Law Commission  concluded on this aspect that the recognition of community structures should be based on legislation to enhance, encourage, and regulate the use of such structures. We, at Parliament, are expecting to consider draft legislation in this regard later this year.

7. THE NEED FOR JUVENILE JUSTICE DIVERSION OPTIONS

The Law Commission is finalising its investigation into the whole aspect of juvenile justice[34]. Of particular interest are the recommendations relating to sentencing options (with specific reference to Restorative Justice principles) contained in pre-trial detention and release policy, diversion, juvenile courts, and sentencing.

Time does not allow me to deal with specifics, suffice to say that the final Report, with accompanying draft legislation entitled the Child Justice Bill was considered by the Law Commission two weeks ago and should be tabled sometime this year in Parliament to deal with the whole issue of juvenile justice, including assessment, diversion, a range of new orders, compulsory legal representation, and a novel preliminary inquiry procedure.

8. EXAMPLES OF RESTORATIVE JUSTICE APPLICATIONS IN SOUTH AFRICA


In determining policy and thereafter considering legislation regarding restorative justice, it will be crucial to study international, and more particularly local case studies to ascertain the workability of restorative justice. In this regard I offer the following South African examples which have already had an impact on policy formulation.

8.1.Victim-offender mediation in the Magistrate’s Court, Greyton (KwaZulu-Natal)

The primary goal of victim-offender mediation is seen as compensating the victim for the loss suffered as a result of the crime by making the offender take personal responsibility for making good his loss. The programme gives the victim an opportunity to tell the offender how the crime affected him or her. The offender, has the opportunity to apologize, explain his or her behaviour and make some reparation or pay compensation.

In 1995 the process was introduced with the object of introducing a system whereby criminal cases of a less serious nature, eg. assault, malicious injury to property and theft of a petty nature would be resolved out of court. According to the magistrate[35], the advantages were obvious: not only would it mean less of these cases ending up in court, but also, primarily, victims were to be compensated for the losses sustained. It was agreed that the whole process would be totally voluntary and that no one would be pressurized to participate.

The summarised process is the following;

  • In a case of a charge of assault or malicious injury to property, the complainant is interviewed to establish whether he or she is prepared to have the matter resolved and what he or she would require,
  • If the complainant indicates that he or she is prepared to resolve the matter, the accused is interviewed separately and the proposals of the complainant are then put to him or her,
  • If the accused agrees then arrangements are made as to how and when compensation will be paid, and the matter is postponed to a date on which the accused will be able to pay the compensation,
  • On the agreed date the accused pays the compensation to the complainant. The parties are assisted to make peace, shake hands and leave the court buildings in harmony, after the matter has been withdrawn in court.

 

Should either party not be prepared to resolve their case in this manner then the matter proceeds to trial in court.

8.2 The National Institute for Crime Prevention and Reintegration of Offenders (Nicro)

Nicro has  been doing pioneer work in this regard for some years now.[36] Its Diversion Project offers a second chance to young people charged with a criminal offence. In lieu of prosecution and conviction, the young person has to participate and comply with one or more programmes. Five programmes are available:

  • Youth Empowerment Scheme – a six-part life skills programme spread over six weeks,
  • Pre-trial Community Service,
  • Victim Offender Mediation – for the victim and offender to work out a mutually acceptable agreement with the aim of restoring the balance,
  • Family Group Conferences[37] – involving the families of the victim and the offender in the mediation process,
  • The Journey Programme is aimed at high risk children and juveniles and involves life skills training, adventure education and vocational skills training.

 

8.3 Stepping Stones One Stop Youth Justice Centre, Port Elizabeth

Stepping Stones is a one-stop youth justice centre initiative of the government, consisting of a police officer (exclusively for children), a youth court (dealing only with children), and a welfare component staffed by probation officers and child and youth workers. A restorative justice approach is followed with an emphasis on:

  • Re-uniting young people with their families, and preventing them from being separated from their families,
  • Focussing on the least restrictive and most empowering sentence option,
  • Giving the young people the opportunity to correct the wrongs committed by them.

 

Families and the community are involved through Family Group Conferences, with a primary emphasis being placed on the importance of the family as a socialization agent and environment most suitable to child rearing. As such services as far as possible focus on family reunification, taking into account the child’s best interests.

Stepping Stones believes[38] that the approach to young people in trouble with the law should focus on restoring societal harmony and righting wrongs rather than punishment. “The young person should be held accountable for his or her actions and where possible make amends to the victim”.

Restorative Justice is practised by:

  • Implementing pre-trial diversion programmes,
  • Involving and assisting victims of crime,
  • Educating stakeholders about the principles of restorative justice,
  • Implementing the least restrictive and most empowering sentence and placement options,
  • Making use of sentence conditions such as community service, and diversions such as victim-offender mediation.

 

Stepping Stones is assisted by social workers from Nicro in its divergent processes and is pioneering an Inter-sectoral Steering Committee comprised of representatives from all the stakeholders involved, namely the Departments of Justice, Welfare, Correctional Services,  the National Association of Child Care Workers, the Child Welfare Society and the University of Port Elizabeth.

The success of this project has resulted in legislation being drafted to empower the Minister of Justice and Constitutional Development to establish and maintain such one stop child justice centres.

9. CONCLUSION

In conclusion, I am pleased to advise delegates that our Minister of Justice shares my conviction that the application of the principles of restorative justice in South Africa will be an important instrument for crime prevention and community participation in crime-related matters. The Department of Justice’s vision for transforming the administration of justice places, in the words of the Minister “a strong emphasis on restorative, as opposed to retributive, justice, and on community participation in the workings of the justice system.”[39]

Similarly the Department of Correctional Services has advocated[40] the adoption of the restorative justice approach.

Speaking as a Christian, and having experienced the miracle of the peaceful transition in South Africa, I am convinced that we will win the fight against crime and that our society will be transformed. I do however have no delusions about the magnitude of the task facing South Africans in the light of the high crime rate, but submit that restorative justice will play a fundamental role in providing opportunities for active personal participation by the victim, the offender and their communities in responding to crime. The application of restorative justice principles will particularly prevent victims becoming embittered and harbouring  anger, grief, pain and fear.

Furthermore, many millions of forgiving and praying South Africans contributed to a peaceful transition to democracy. The prayers of intercessors together with legal reform will similarly be the catalyst for a return to a society based on justice, forgiveness and reconciliation.

It would be apposite to conclude by referring to the prophet Micah who asked what it was that God desired of His people, and concluded that it was not offerings or religious devotion: “He has showed you, o man, what is good. And what does the law require of you? To act justly and to love mercy and to walk humbly with your God.”[41]

I thank you for your kind attention this afternoon.

 


[1]Text:

    1.     Justice is an expression of God’s character. Therefore, Christians must share God’s concern for justice and reconciliation throughout society, and for liberation from all injustice and oppression. This is part of our Christian duty.

    2.     Every person, regardless of race, religion, colour, caste, culture, class, sex, age, or moral or   criminal status, is made in the image of God and therefore has intrinsic dignity which must be respected.

God is as concerned about sin as about crime. We have all sinned and have no merit of our own. We are not morally superior to even the worst criminal, although we confess that we have often acted as though we are. Our only hope, and the hope of all, is to repent and to receive the redemptive love of God offered through Jesus Christ.

Justice requires that society deal seriously and firmly with crime, recognising that it is as much an offence against persons as it is against the state. It is as much a violation of the victim as it is a violation of the law.

Justice requires that offenders take responsibility in four areas:

Repent and become constructive members of society,

Acknowledge and repair the harm done,

Acknowledge legal consequences to be accepted, and

Address factors that may have contributed to their criminal behaviour.

Government, society and the Church have the responsibility to encourage and facilitate such actions by offenders.

Punishment for wrongdoing must never be arbitrary, undeserved or disproportionate to the offence. Although considerations of retribution, deterrence, rehabilitation and incapacitation are important, a key element of a just sentence is restitution for damage done.

Justice requires that the needs of victims be addressed and redressed by the offender, the government, society and the Church. We confess and repent of our failure to fully reflect this requirement in our work with offenders, public authorities and the Christian community.

The outcome of a justice process is as important as the process itself, and should include restoration of relationships, rights and dignities of offenders, their victims and communities. Furthermore, this process must assure that all, including the poor, the vulnerable and the disenfranchised, experience just procedures and results.


[2] B Dlamini and others versus The State CCT21/98 – judgement delivered on 3 June 1999

[3] L Camerer, “Crime, Violence and punishment – putting victims on the agenda”, African Security Review, Vol   6 No 3 (1997)  p46

[4] L Camerer, ibid p50

[5] K Pranis, “Building Community Support for Restorative Justice: Principles and Strategies” p12      www.restorativejustice.org/library/BuildingSupport_Pranis.html

[6] M Lapsley, “ The heart of Justice: Truth, Mercy, Healing, Forgiveness” – Chapter 4 p49 – Restorative Justice: Contemporary Themes and Practice (J. Consedine and H Bowen) – Ploughshares publications, New Zealand

[7] Such as the Criminal Procedure Act, 51 of 1997(sections 170A, 185A, 300,and 301), the Probation Services Act, 116 of 1991(section 3(a) in terms of which programmes may be established aimed at the care and treatment of victims of crime), the Prevention of Family Violence Act, 133 of 1993, the Promotion of National Unity and Reconciliation Act, 34 of 1995 (which allows victims to relate the harm suffered and provides for reparation to such victims).

[8] McElrea F, “Creative Criminal Justice” Chapter 5 p62 Restorative Justice: Contemporary Themes and Practice (J. Consedine and H Bowen) – Ploughshares publications, New Zealand

[9] Consedine, J “Restorative Justice: Contemporary Themes and Practice” (J. Consedine and H Bowen) – Ploughshares publications, New Zealand

[10] Lapsley M, op cit fn5

[11] quoted by  Consedine J op cit fn 8 on p43

[12] Retief, F “Tragedy to Triumph: A Christian response to trials and suffering” p 137, 144, 151 and 155  Word Publishing 1993

[13]Consedine J op cit  fn 8 on p62

[14] McElrea F, op cit fn 8 p 60

[15] Van Ness D, “ A Restorative Future for Juvenile Justice?” p9 www.restorativejustice.org/conference/dvnWIP.html

[16] Established by the South African Law Commission Act 19 of 1973

[17] SA Law Commission, 1997, Sentencing Restorative Justice (Compensation for victims of crime and victim empowerment), Issue Paper 7, Project 82

[18] ibid para 1.5

[19] ibid para 1.6

[20] ibid para 2.2

[21] ibid para 2.4 and 2.7

[22] ibid paras 2.5 and  2.6

[23] SA Law Commission, 1999, Community Dispute Resolution Structures, Discussion Paper 87, Project 94

[24] SA Law Commission op cit fn 17  paras 2.5, 4.6, 4.7, 4.9

[25] SA Law Commission op cit fn 23

[26]  ibid  para 1.2

     [27] Van Niekerk GJ, ‘ People’s courts and people’s justice in South Africa – new developments in community dispute resolution’ (1994) ! De Jure 19 (as quoted by SA Law Commission  op cit fn 23  para 1.2)

[28] Van der Merwe H and Mbebe M, ‘Informal Justice: The Alexandra justice centre and the future of interpersonal dispute resolution’ (1994) Centre for Applied Legal Studies Working Paper No. 21 2 (as quoted by  SA Law Commission  op cit fn 23 para 1.2).

[29] SA Law Commission op cit fn 23 para 1.2.5. The Roman Dutch legal system in South Africa was the legacy of the Dutch East Indian Company and was allowed to continue under British colonialism even after the system was no longer applied in Europe.

[30] SA Law Commission op cit fn 23 para3.3.1.11  (speech by MMP Mopeli of the House of Traditional Leaders – Orange Free State  - representing  CONTRALESA)

[31]A Skelton, ‘Developing a juvenile justice system for South Africa: International instruments and restorative justice’ (Acta Juridica 1996, p 193) – Juta publications

[32] SA Law Commission op cit fn 23 paras 1.2.5.

[33] W Schärf at the second legal forum in Pretoria (as quoted in SA Law Commission op cit  fn 23 para 4.7 p57)

[34] SA Law Commission, 1997, Issue Paper 9, Project 106 – Juvenile Justice; see also the Criminal Procedure Amendment Bill (Detention of Juveniles)

[35] GH Van Rooyen: Blessed are the peacemakers: victim-offender mediation in the criminal justice system-a practical example, SA Criminal Journal (1999:12 p 62)

[36] NICRO, National Office Annual Report (1998/1999)

[37] See also the Family Group Conference Pilot Project operated in Pretoria.

[38] Welcome to Stepping Stones One Stop Youth Justice Centre, Port Elizabeth – Brochure-email ssyjc@yahoo.com

[39]M P Maduna, ( Minister for Justice and Constitutional Development) - Letter dated 9 Feb 2000 to S N Swart,   MP.

[40]Parliamentary Briefing by Department of Correctional Services, February 2000

[41]  Micah 6:8

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