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.

 

 

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.