Presentation
to the Portfolio Committee on Justice and Constitutional Development
From the Centre for the Study of Violence and Reconciliation
26 February 2003
The Centre for the
Study of Violence and Reconciliation has read the proposed Child Justice Bill
of 2002 and would like to comment on one aspect thereof that relates to
Restorative Justice elements. Broadly speaking, the CSVR is satisfied that the
Bill sets out the basic principles of Restorative Justice, and that these
principles are reinforced throughout the Bill and its provisions. However, when
the Bill does mention specific Restorative Justice solutions, we find that it
does so in a way that could prove to be limiting.
S 47 refers
to Diversion options. S 47(4)(g) refers specifically to “referral to
appear at any family group conference or a victim-offender mediation at a
specified place and time”. In relation
to sentencing, S 65 also refers only to family group conferences and to victim
offender mediation. The previous draft of the Bill (2001) that was
approved by Cabinet, however, was more general in that S 54 talked in relation
to diversion, of “Victim-offender mediation or other restorative justice
process”, as did S 88 in relation to sentences.
We believe
that the current phrasing is too narrowly defined and could exclude a whole
range of other or more appropriate forms of restorative justice process.
What are
restorative justice processes?
Restorative
justice is an approach to justice which seeks to :
- Hold offenders personally
accountable for their behaviour
- To emphasize the human impact
of crime
- To provide opportunities for
offenders to take responsibility for their actions by facing their victims
and making amends
- To promote active victim and
community involvement in the justice process, and
- To enhance the quality of
justice experienced by both victims and offenders (Umbreit, 1994)
Although
Restorative Justice embraces principles and practices that are well established
and that have been used in various systems, but it is only relatively recently
that it has been popularized and studied as a special form of justice. It has
been practiced throughout the world in a number of different forms. Dr Mark
Umbreit, one of the most well known researchers/practitioners in this field,
illustrates that Restorative Justice can take a variety of different forms:
crime repair crews; victim intervention programmes; family group conferencing;
victim offender mediation and dialogue; peacemaking circles; victim panels that
speak to offenders; sentencing circles; community reparative boards before
which offenders appear; victim directed and citizen involved community service
by the offender; community-based support groups for crime victims; and
community-based support groups for offenders (Umbreit, 2000).
Umbreit
uses the term restorative justice conferencing to identify all processes that
facilitate restorative dialogue and problem-solving among victims, offenders,
family members and other support persons or community members. Within this
concept, he argues that there are four established modes of restorative justice
conferencing: victim offender mediation, family group conferencing,
peacemaking/sentencing circles, and reparative community boards before which
offenders appear (Umbreit, 2000: 3).
It should
be noted that the term ’victim offender / restorative justice conferencing’ has
a wider meaning of which ‘victim offender mediation’ is only one small part.
Restorative
Justice is perhaps not so well established in South Africa as it is in the
United States of America, Canada, Australia and New Zealand, and there are
fewer models that have been piloted and implemented more widely. The best known
in South Africa is family group conferencing, and Victim Offender Conferencing
(Dissel 2000) with some examples of victim offender mediation (Van Rooyen,
1999).
Restorative
justice and traditional practice
Restorative
Justice is also practiced within traditional African justice practices
(Skelton, 2002). Although the practice may not be named as a restorative one it
is argued that ‘reconciliation, restoration and harmony lie at the heart of
African adjudication’ (Allcott 1977 in Skelton: 499) and that the central aim
of a customary process was to acknowledge that a wrong has been done and to
determine what amends should be made. The role of these customary processes has
been given recognition by the South African Law Commission. It is also
important to incorporate the traditional practices and principles into the more
formal justice system, and the Child Justice Bill could provide an opportunity
to recognise traditional restorative practices, and so develop a system unique
and appropriate to South Africa.
Victim
Offender Conferencing in South Africa
The
Restorative Justice Initiative (a consortium of seven organisations) has been
engaged in Victim Offender Conferencing (VOC) for two years. Like Family Group
Conferencing, the VOC project sought to involve the community and the victim
and offender’s support system in the process. It allows for the participation
of anyone who is relevant to the offending, the outcome, or to providing
support to either of the parties. The project sought to be community based so
that disputes could be resolved at the community level. Mediators were selected
from the same community in which the courts were situated and from which the
majority of referrals were received. It was conceived of as mainly a
diversionary process to relieve the justice system of some of its load, but was
also open to receiving disputes directly from other community structures.
In
the 2000/2001 project, 224 cases were referred to the VOC project and 178 cases
were mediated at three magisterial districts in Gauteng: Westbury/Newlands;
Alexandra/Wynberg; and West Rand/Dobsonville. During a second phase, the
project was extended to another site in the North West Province: Odi Community
Law Centre in Ga-Rankuwa. During the 12 months of this project, 364 cases were
mediated in the four sites. A further 65 cases were referred for mediation, but
this was not carried through.[i]
The following comments are based on the data collected from the second phase of
the project. The results of this phases are still being analyzed, so this data
should be viewed as interim data.
In
VOC, the cases are referred to mediation by the courts/prosecutors, by the
South African Police Services, or by members of the community. In Odi, several
cases were referred by the Traditional Authority. There are 68 villages in the
area served by Odi.
In
court-referred cases, the matter is stood down from the court roll pending the
mediation. If the mediation is successful, an agreement is drawn up and signed
by the victim and offender. If the prosecutor is satisfied with the agreement,
charges against the offender are sometimes withdrawn at this stage. In some of
the courts, the prosecutors postponed the case until the parties had complied
with the agreement, and then withdrew charges. In a minority of cases, the
prosecution proceeded with the case despite its successful mediation, because
the prosecutor believed that the offence was of such a serious nature that
prosecution should proceed.
The
mediation and agreement does not constitute an admission of guilt, and is not
entered into the court record. However, it does facilitate a process wherein
the offender can acknowledge responsibility for the offence, where
relationships may be restored, and some steps taken towards restoring the
harmony between the parties.
Figure 1.: Nature of cases referred
(2001/2002)
Three hundred and seventy eight
(378) charges were recorded in respect of the 364 cases mediated. In some
cases, more than one charge was recorded. A number of these cases were referred
by community structures where no formal charge had been laid. In these cases,
the mediator or researchers assigned an appropriate charge category. In several
cases it appeared from the records that no offence had occurred, and these
cases are entered as disputes (21). There is also a large category of offence
construed as ‘domestic violence’ (33). In these cases there was often reference
to ongoing domestic disputes, emotional abuse and conflicts over living
arrangements, maintenance and money.
The majority of cases referred were
of interpersonal violence, with common assault (128) and assault grievous
bodily harm (65) being the most prolific. Together these formed 51% of charges
in the cases referred for mediation.
Other cases involved crimen injuria (16) and intimidation (34).
There were also property crimes: Malicious damage to property (35) and theft
(29). There were 3 cases of attempted rape and 2 cases of child abuse.
Despite
the nature of the formal charges against the offender, in most cases the nature
of the offence was not very serious, and this was one of the factors guiding
the courts in referring cases.
Relationships between parties
In
many other countries, victim offender conferencing has mainly been used in
crimes where the parties are unknown to each other. However, in the case of the
VOC process, the parties were known to each other in all but seven of the cases
referred for mediation. Indeed, magistrates and prosecutors interviewed at the
conclusion of this process indicated that they selected cases for mediation
based on the relationship between victim and offender; and on the seriousness
of the case.
Table: Nature of relationship
between victim and offender
|
Relationship |
No. of records |
|
Aunt/uncle |
3 |
|
Co-habiting |
31 |
|
Dating |
22 |
|
Daughter/son |
11 |
|
Divorced/separated |
7 |
|
Friends |
38 |
|
Grandmother |
2 |
|
Married |
45 |
|
Neighbours |
61 |
|
Other |
32 |
|
Other family |
25 |
|
parent |
27 |
|
Sex partner |
11 |
|
sibling |
31 |
|
Strangers |
7 |
|
Total records of relationship |
353 |
The
majority of cases (31%) were between romantically or sexually linked couples
(married, co-habiting, dating and sexual partners). In addition in seven of the
cases, parties were divorced or separated from one another. 20% of cases came
from direct family relations, such as parent, child and sibling. Grandparents
and other family accounted for 8% of cases (30). Parties were neighbours in 17%
of cases, and friends in 11%. The
parties were strangers to each other in only 2% (7) cases, and were known to
each other in some other capacity (e.g. employment relationship/ friend of
victim’s boyfriend) in 9% (32) cases.
Within
the very broad definition of the Domestic Violence Act, it appears that the
majority of these cases could be defined as occurring between parties in a
domestic relationship with one another, and on the circumstances of the case,
as instances of domestic violence.
Parties
Offenders: There were 440 offenders recorded
in respect of the 364 cases. Of these, 150 (34%) were female. The average age
of offenders was 32, with the youngest at 11 years and the oldest at 72 years
of age
Victims: there were 378 recorded victims in
respect of the 364 cases. Of these, 71% were female. The average age of the
victims was 35 years. The youngest victim was 9 years old, while the oldest
victim was 79 years of age.
Mediation process
Once
the case had been referred to the VOC project, the trained mediators met
separately with the victim and offender. The purpose of the meeting was to
establish whether there was commitment to follow through with the process, and
also to establish the parties’ own version of their story. They made an
appointment for the mediation - sometimes on a separate day, sometimes on the
same day. The parties were invited to bring along a person to support them in
the mediation, but the majority chose to conduct the mediation with only
themselves and the mediator.
Mediation
was mainly completed in one session, although if the case was more complicated,
or a party wanted to include a witness, or to allow the parties time to discuss
the matter between themselves, it was often postponed to a second or third
occasion. The average time spent on mediation was 1 hour 10 minutes, and a
maximum time of 13 hours.
Once
mediation was completed, the parties either formed an agreement, or not. No agreement was reached in 27 (7%) of the
cases. Agreements were usually reduced to writing and signed by both parties.
In court referred cases, the agreements would be handed to the prosecutor,
along with a report from the VOC site. The prosecutor would usually, though not
always, withdraw the charges against the offender, pending fulfillment of the
terms of the agreement.
The
nature of agreements varied substantially depending on the facts and issues
involved in each case. They could include apology, by offender and victim;
forgiveness; reparation; building respect for each other; undertakings to alter
the behaviour of one or both parties; or agreements to alter the way parties
related to one another, or their involvement in the relationship.
Young victims and offenders
The
VOC project was not specifically targeted at young offenders due to a number of
other initiatives that were directed towards this age group. However, many
young victims and offenders did form part of this process.
Forty-seven
of the offenders were 21 or younger, with 15 of them being children. The
youngest offender was 11 years old. Forty three of the victims were 21 or
younger, with 19 being children.
The
Victim Offender Conference proceeded in the same way with the young parties.
However, a support person was more often included in the process if the
offender or victim was a child. The support person was usually a parent or
grandparent, although sometimes a sibling of the party.
Offences committed by young
offenders
The
crime that the youngsters were charged with reflected the crimes of the general
group, with interpersonal crimes forming the majority. The majority of crimes
committed by young offenders were common assault (13) and assault GBH (13).
Five of the offenders had been accused of domestic violence, and 6 of malicious
damage to property. Other charges related
to intimidation (2), defamation of character (1), theft (4), crimen injuria
(2), and child abuse 1.
Some
of the offences committed were serious. Most of the offences occurred during an
argument. In one case, the victim became angry with the offender for
reprimanding the victim’s child. The offender threw a pot of hot porridge at
the victim, which hit the victim’s child, who sustained burns. In another case,
five female offenders (only one of whom was a child) assaulted 2 women over a
dispute. The five offenders attacked them with a broom, and kicked them, and
one of the offenders stabbed a victim with a knife. In these cases, the
mediation focused on accepting responsibility for the offence and apologising.
The victims in both cases agreed to pay reparation for the medical expenses.
In
another case, one boy attacked another at school when he insisted that the
victim keep quiet. The victim refused and the offender stabbed him. In this
case, these was no agreement between the parties, and the matter was referred
back to court. The assault was apparently fueled by racism (the parties were
from different race groups). There was another school-based dispute where the
offender and victim fought following an argument over money. The offender
kicked the victim in the eye and was charged with common assault. Mediation was
held that resulted in his apologies.
There
were several cases where parents had sought assistance in disciplining their
children and where they had not been referred by the court. These cases were
recorded as domestic violence. There
were other cases involving parental attempts at discipline that were referred
by the courts. In one case, an 18 year old boy had an argument with his
grandmother. He charged out of the house slamming the kitchen door. It swung
back and hit the old lady. He was charged with common assault. During the
mediation, it was agreed that the offender did not hit the victim, but he
agreed t take steps to alter his behaviour.
Two
young offenders (16 and 20 years of age), who had both had previous convictions
for property crimes, were charged with theft. They stole a video recorder from
the victim. The case was mediated and they agreed to find work so as to find
the money to repay the victim.
In
one case a 21 year old offender was charged with child abuse. Her neighbour’s
child had come into the house to use the toilet. He had stayed in the house and
played with her pots and pans, and had broken a door. She beat him with a belt.
The boy’s mother complained and laid a charge of child abuse. After the 2 hour
mediation, the offender apologised for her actions and the charge was
withdrawn.
Victim
offender conferencing with serious cases: a case study
During 2001 and 2002, the VOC project dealt with one
case of a fatal stabbing by a young schoolboy of his friend.[ii]
The offender was 14 and the victim aged 10, although they were of about the
same size and weight. The boys had begun play-wrestling. The boys were egged on
by some on-lookers, and at one point the offender felt threatened. He
remembered that he had an open knife in his pocket. He pulled it out and swung
it at the victim, meaning to chase him or scare him away. However, the victim
in attempt to get out of the way, jumped into the path of the knife which
caught him in the chest, just below the clavicle bone in the neck. The blade
punctured a major artery in the lung causing the victim to bleed to death. The
offender ran home covered in blood, and the offender’s mother ran out and took
the victim to the hospital. He was found dead on arrival.
The offender’s parents took him immediately to the
police to make a statement. As a juvenile offender he was released on bail, and
later charged with culpable homicide. The offender’s mother visited the mother
of the deceased a couple of times. The deceased’s mother also expressed a
desire to find out what had happened. As a result, the family approached a
minister friend in the Department of Correctional Services who referred the
case to the VOC project.
Two mediators were selected who were both social work
professionals and skilled mediators. They met separately with the family of the
victim and offender on several occasions. It appeared that the offender had
been taunted by his school mates following the death and been called a serial
killer and murderer. He had also been threatened. Meetings were also held with
one of the offender’s friends, the police superintendent and the offender’s
family counselor.
A joint meeting was arranged at a neutral venue. The
offender, his parents, aunt and counselor were present. On the victim’s side,
there were the parents, older brother and a family friend. The three aims of
the process were:
- to
hear the story from the mouth of the offender
- to
allow the victim’s family a chance to tell their story and ask hard questions
- to
allow the offender to respond to the family’s pain.
The mediators identified six critical factors that
contributed towards a constructive outcome:
1)
the
positive attitude of the offender
2)
effective
integrative shaming
3)
unconditional
apology
4)
concern
over the offender’s future
5)
role
of religious values
6)
active/
useful role of support people
The meeting closed with an agreement that there would
be no further meetings as it was too painful and intense. The parties departed
with hugs and words of farewell to each other. Parties felt the meeting was
worthwhile. It helped the parties to deal with the emotions surrounding the
event and its aftermath. They were able in some sense to integrate what had
happened into their lives, and “it opened the door for healing in the lives of
all involved.”
Taken from a report “Something has gone terribly
wrong” by Carl Stauffer and Connie Jood.
Comments on the VOC process
The
VOC process is a flexible one enabling parties to engage in constructive
dialogue over the events leading to the offence, as well as the events that
follow it. It enables them to deal with their emotions around the issues, and
to some extent, to identify steps that need to be taken to deal with the
offending behaviour. Although in some cases, offenders were referred to
agencies for assistance in this regard, it is the writer’s view that this was
in very few cases, and more use should be made of referrals for appropriate
treatment and assistance.
The
VOC process is very useful for dealing with young people’s offending behaviour.
Because of its informality, and its ability to probe beyond the scope of a
criminal inquiry, it does allow the parties to deal with a broad range of
issues relating to the offending behaviour.
This is necessary to remind offenders that their behaviour is
problematic, and it also allows them to reflect on why they are behaving as
they are, and to recognise the impact of their actions on others. It’s early
intervention may prevent further crimes from occurring and positively influence
the way that people relate to one another. Further work needs to be done to
test the impact of these interventions in South Africa, although studies
oversees have indicated that offenders who participate in a restorative justice
process are less likely to re-offend than offenders going through the criminal
justice process (Morris and Maxwell, 2000).
The
VOC process can deal with cases being referred from a number of different
sources, and is flexible to deal with different contexts – for instance cases
referred by the traditional authorities. It is quick and easy to set up.
In
the four pilot sites, it was found to operate well in relation to the four
magistrate’s courts, and all magistrates interviewed on the project expressed
an interest in seeing VOC made available at other courts.
An
inclusive approach to Restorative Justice
Rather
than being seen as narrowly defined set of practices, Restorative Justice could
be viewed as a broad set of principles that could be applied in a number of
different processes. Although two of these practices have become well known in
South Africa, this should not preclude the use of other lesser-known practices,
such as traditional processes, or sentencing circles. Restorative Justice
processes should be selected so as to suit the participants in the process, the
nature of the case, as well as the location (rural or urban), as well as the
belief system of the key participants. Another factor may be the availability
and type of restorative process that is available in a particular place at any
point in time. Restorative Justice processes are usually run by people trained
or schooled in a particular type of practice.
The
Child Justice Bill should be inclusive in its approach so that a child may be
referred to an appropriate Restorative Justice process. An appropriate
restorative justice process would be one that is suitable to the factors I have
just mentioned. It should also meet the generally accepted principles of
restorative justice.
In
view of this, the Centre for the Study of Violence and Reconciliation
respectfully submits that the wording of S47(4)(g) and S65 be changed so as to
refer to ‘family group conferencing, victim offender conferencing, or other
restorative justice processes’.
References
Dissel, A (2000) Restoring the
Harmony: A report on a Victim Offender Conferencing Pilot Project,
Restorative Justice Initiative and Centre for the Study of Violence and
Reconciliation, Johannesburg.
Morris, A. and Maxwell, G. (2000) “The
Practice of Family Group Conferences in New Zealand’, in Crawford, A. and
Goodey, J. (eds), Integrating a Victim Perspective within Criminal Justice,
England: Dartmouth Publishing Company Limited, at 207.
Skelton, A (2002) ‘Restorative Justice as
a framework for Juvenile Justice Reform: A South African Perspective”, British
Journal of Criminology 42, 496 –513.
Umbreit, M (1994) Victim meets
Offender: The impact of Restorative Justice and Mediation. Willow Tree
Press, Monsey. N.Y.
Umbreit, M (2000) Restorative Justice
Conferencing: Guidelines for Victim Sensitive Practice, Centre for
Restorative Justice and peacemaking, University of Minnesota, Minnesota.
Van Rooyen, G. H. (1999( ‘Blessed are the
Peace Makers: Victim-offender mediation in the criminal justice system – a practical
example’. South African Criminal Justice Journal (1999) 12, at 62.