w(h)ither restorative justice in south …...crimes criminal justice: pre-trial (diversion)...

Restorative Justice an approach to Justice Collectively Identifying Harms, needs and Obligations Accepting Responsibilities Making Restitution Taking measures to prevent a recurrence of the incident promoting Reconciliation South Africa’s Truth and Reconciliation Commission (TRC) Reducing or preventing criminal behaviour Reducing crime victims’ post-traumatic stress symptoms and related costs Reducing crime victims’ desire for violent revenge against their offenders Providing both victims and offenders with more satisfaction with justice than the criminal justice system Structural Injustice inter-personal crime cannot be policed Inter-personal crime cannot be reduced by hard-line security measures Inter-personal crime cannot be reduced by punishment attending to the relational dimensions of justice attenting to the underlying factors that led to the commission of a crime Peacebuilding Mediation Conflict Transformation Restorative justice jurisprudence The developmental state The National Development Plan The Social Welfare White Paper Review National Policy Framework for Restorative Justice Professional social service Social movement Hate Crimes Criminal justice: Pre-trial (diversion) Pre-sentence Post sentence Family Law Court annexed mediation in civil matters Restorative justice in schools Restorative Justice an approach to Justice Collectively Identifying Harms, needs and Obligations Accepting Responsibilities Making Restitution Taking measures to prevent a recurrence of the incident promoting Reconciliation South Africa’s Truth and Reconciliation Commission (TRC) Reducing or preventing criminal behaviour Reducing crime victims’ post-traumatic stress symptoms and related costs Reducing crime victims’ desire for violent revenge against their offenders Providing both victims and offenders with more satisfaction with justice than the criminal justice system Structural Injustice inter-personal crime cannot be policed Inter-personal crime cannot be reduced by hard-line security measures Inter-personal crime cannot be reduced by punishment attending to the relational dimensions of justice attenting to the underlying factors that led to the commission of a crime Peacebuilding Mediation Conflict Transformation Restorative justice jurisprudence The developmental state The National Development Plan The Social Welfare White Paper Review National Policy Framework for Restorative Justice Professional social service Social movement Hate Crimes Criminal justice: Pre-trial (diversion) Pre-sentence Post sentence Family Law Court annexed mediation in civil matters Restorative justice in schools Restorative Justice an approach to Justice Collectively Identifying Harms, needs and Obligations Accepting Responsibilities Making Restitution Taking measures to prevent a recurrence of the incident promoting Reconciliation South Africa’s Truth and Reconciliation Commission (TRC) Reducing or preventing criminal behaviour Reducing crime victims’ post-traumatic stress symptoms and related costs Reducing crime victims’ desire for violent revenge against their offenders Providing both victims and offenders with more satisfaction with justice than the criminal justice system Structural Injustice inter-personal crime cannot be policed Inter-personal crime cannot be reduced by hard-line security measures Inter-personal crime cannot be reduced by punishment attending to the relational dimensions of justice attenting to the underlying factors that led to the commission of a crime Peacebuilding Mediation Conflict Transformation Restorative justice jurisprudence The developmental state The National Development Plan The Social Welfare White Paper Review National Policy Framework for Restorative Justice Professional social service Social movement Hate Crimes Criminal justice: Pre-trial (diversion) Pre-sentence Post sentence Family Law Court annexed mediation in civil matters Restorative justice in schools Restorative Justice an approach to Justice Collectively Identifying Harms, needs and Obligations Accepting Responsibilities Making Restitution Taking measures to prevent a recurrence of the incident promoting Reconciliation South Africa’s Truth and Reconciliation Commission (TRC) Reducing or preventing criminal behaviour Reducing crime victims’ post-traumatic stress symptoms and related costs Reducing crime victims’ desire for violent revenge against their offenders Providing both victims and offenders with more satisfaction with justice than the criminal justice system Structural Injustice inter-personal crime cannot be policed Inter-personal crime cannot be reduced by hard-line security measures Inter-personal crime cannot be reduced by punishment attending to the relational dimensions of justice attenting to the underlying factors that led to the commission of a crime Peacebuilding Mediation Conflict Transformation Restorative justice jurisprudence The developmental state The National Development Plan The Social Welfare White Paper Review National Policy Framework for Restorative Justice Professional social service Social movement Hate Crimes Criminal justice: Pre-trial (diversion) Pre-sentence Post sentence Family Law Court annexed mediation in civil matters Restorative justice in schools Restorative Justice an approach to Justice Collectively Identifying Harms, needs and Obligations Accepting Responsibilities Making Restitution Taking measures to prevent a recurrence of the incident promoting Reconciliation South Africa’s Truth and Reconciliation Commission (TRC) Reducing or preventing criminal behaviour Reducing crime victims’ post-traumatic stress symptoms and related costs Reducing crime victims’ desire for violent revenge against their offenders Providing both victims and offenders with more satisfaction with justice than the criminal justice system Structural Injustice inter-personal crime cannot be policed Inter-personal crime cannot be reduced by hard-line security measures Inter-personal crime cannot be reduced by punishment attending to the relational dimensions of justice attenting to the underlying factors that led to the commission of a crime Peacebuilding Mediation Conflict Transformation Restorative justice jurisprudence The developmental state The National Development Plan The Social Welfare White Paper Review National Policy Framework for Restorative Justice Professional social service Social movement Hate Crimes Criminal justice: Pre-trial (diversion) Pre-sentence Post sentence Family Law Court annexed mediation in civil matters Restorative justice in schools Restorative Justice an approach to Justice Collectively Identifying Harms, needs and Obligations Accepting Responsibilities Making Restitution Taking measures to prevent a recurrence of the incident promoting Reconciliation South Africa’s Truth and Reconciliation Commission (TRC) Reducing or preventing criminal behaviour Reducing crime victims’ post-traumatic stress symptoms and related costs Reducing crime victims’ desire for violent revenge against their offenders Providing both victims and offenders with more satisfaction with justice than the criminal justice system Structural Injustice inter-personal crime cannot be policed Inter-personal crime cannot be reduced by hard-line security measures Inter-personal crime cannot be reduced by punishment attending to the relational dimensions of justice attenting to the underlying factors that led to the commission of a crime Peacebuilding Mediation Conflict Transformation Restorative justice jurisprudence The developmental state The National Development Plan The Social Welfare White Paper Review National Policy Framework for Restorative Justice Professional social service Social movement Hate Crimes Criminal justice: Pre-trial (diversion) Pre-sentence Post sentence Family Law Court annexed mediation in civil matters Restorative justice in schools Restorative Justice an approach to Justice Collectively Identifying Harms, needs and Obligations Accepting Responsibilities Making Restitution Taking measures to prevent a recurrence of the incident promoting Reconciliation South Africa’s Truth and Reconciliation Commission (TRC) Reducing or preventing criminal behaviour Reducing crime victims’ post-traumatic stress symptoms and related costs Reducing crime victims’ desire for violent revenge against their offenders Providing both victims and offenders with more satisfaction with justice than the criminal justice system Structural Injustice inter-personal crime cannot be policed Inter-personal crime cannot be reduced by hard-line security measures Inter-personal crime cannot be reduced by punishment attending to the relational dimensions of justice attenting to the underlying factors that led to the commission of a crime Peacebuilding Mediation Conflict Transformation Restorative justice jurisprudence The developmental state The National Development Plan The Social Welfare White Paper Review National Policy Framework for Restorative Justice Professional social service Social movement Hate Crimes Criminal justice: Pre-trial (diversion) Pre-sentence Post sentence Family Law Court annexed mediation in civil matters Restorative justice in schools Framework for Restorative Justice Professional social service Social movement Hate Crimes Criminal justice: Pre-trial (diversion) Pre-sentence Post sentence Family Law Court annexed mediation in civil matters Restorative justice in schools Restorative Justice an approach to Justice Collectively Identifying Harms, needs and Obligations Accepting Responsibilities Making Restitution Taking measures to prevent a recurrence of the incident promoting Reconciliation South Africa’s Truth and Reconciliation Commission (TRC) Reducing or preventing criminal behaviour Reducing crime victims’ post-traumatic stress symptoms and related costs Reducing crime victims’ desire for violent revenge against their offenders Providing both victims and offenders with more satisfaction with justice than the criminal justice system Structural Injustice inter-personal crime cannot be policed Inter-personal crime cannot be reduced by hard-line security measures Inter-personal crime cannot be reduced by punishment attending to the relational dimensions of justice attenting to the underlying factors that led to the commission of a crime Peacebuilding Mediation Conflict Transformation Restorative justice jurisprudence The developmental state The National Development Plan The Social Welfare White Paper Review National Policy Framework for Restorative Justice Professional social service Social movement Hate Crimes Criminal justice: Pre-trial (diversion) Pre-sentence Post sentence Family Law Court annexed mediation in civil matters Restorative justice in schools Restorative Justice an approach to Justice Collectively Identifying Harms, needs and Obligations Accepting Responsibilities Making Restitution Taking measures to prevent a recurrence of the incident promoting Reconciliation South Africa’s Truth and Reconciliation Commission (TRC) Reducing or preventing criminal behaviour Reducing crime victims’ post-traumatic stress symptoms and related costs Reducing crime victims’ desire for violent revenge against their offenders Providing both victims and offenders with more satisfaction with justice than the criminal justice system Structural Injustice inter-personal crime cannot be policed Inter-personal crime cannot be reduced by hard-line security measures Inter-personal crime cannot be reduced by punishment attending to the relational dimensions of justice attenting to the underlying factors that led to the commission of a crime Peacebuilding Mediation Conflict Transformation Restorative justice jurisprudence The developmental state The National Development Plan The Social Welfare White Paper Review National Policy Framework for Restorative Justice Professional social service Social movement Hate Crimes Criminal justice: Pre-trial (diversion) Pre-sentence Post sentence Family Law Court annexed mediation in civil matters Restorative justice in schools Restorative Justice an approach to Justice Collectively Identifying Harms, needs and Obligations Accepting Responsibilities Making Restitution Taking measures to prevent a recurrence of the incident promoting Reconciliation South Africa’s Truth and Reconciliation Commission (TRC) Reducing or preventing criminal behaviour Reducing crime victims’ post-traumatic stress symptoms and related costs Reducing crime victims’ desire for violent revenge against their offenders Providing both victims and offenders with more satisfaction with justice than the criminal justice system Structural Injustice inter-personal crime cannot be policed Inter-personal crime cannot be reduced by hard-line security measures Inter-personal crime cannot be reduced by punishment attending to the relational dimensions of justice attenting to the underlying factors that led to the commission of a crime Peacebuilding Mediation Conflict Transformation Restorative justice jurisprudence The developmental state The National Development Plan The Social Welfare White Paper Review National Policy Framework for Restorative Justice Professional social service Social movement Hate Crimes Criminal justice: Pre-trial (diversion) Pre-sentence Post sentence Family Law Court annexed mediation in civil matters Restorative justice in schools Restorative Justice an approach to Justice Collectively Identifying Harms, needs and Obligations Accepting Responsibilities Making Restitution Taking measures to prevent a recurrence of the incident promoting Reconciliation South Africa’s Truth and Reconciliation Commission (TRC) Reducing or preventing criminal behaviour Reducing crime victims’ post-traumatic stress symptoms and related costs Reducing crime victims’ desire for violent revenge against their offenders Providing both victims and offenders with more satisfaction with justice than the criminal justice system Structural Injustice inter-personal crime cannot be policed Inter-personal crime cannot be reduced by hard-line security measures Inter-personal crime cannot be reduced by punishment attending to the relational dimensions of justice attenting to the underlying factors that led to the commission of a crime Peacebuilding Mediation Conflict Transformation Restorative justice jurisprudence The developmental state The National Development Plan The Social Welfare White Paper Review National Policy Framework for Restorative Justice Professional social service Social movement Hate Crimes Criminal justice: Pre-trial (diversion) Pre-sentence Post sentence Family Law Court annexed mediation in civil matters Restorative justice in schools Restorative Justice an approach to Justice Collectively Identifying Harms, needs and Obligations Accepting Responsibilities Making Restitution Taking measures to prevent a recurrence of the incident promoting Reconciliation South Africa’s Truth and Reconciliation Commission (TRC) Reducing or preventing criminal behaviour Reducing crime victims’ post-traumatic stress symptoms and related costs Reducing crime victims’ desire for violent revenge against their offenders Providing both victims and offenders with more satisfaction with justice than the criminal justice system Structural Injustice inter-personal crime cannot be policed Inter-personal crime cannot be reduced by hard-line security measures Inter-personal crime cannot be reduced by punishment attending to the relational dimensions of justice attenting to the underlying factors that led to the commission of a crime Peacebuilding Mediation Conflict Transformation Restorative justice jurisprudence The developmental state The National Development Plan The Social Welfare White Paper Review National Policy Framework for Restorative Justice Professional social service Social movement Hate Crimes Criminal justice: Pre-trial (diversion) Pre-sentence Post sentence Family Law Court annexed mediation in civil matters Restorative justice in schools Restorative Justice an approach to Justice Collectively Identifying Harms, needs and Obligations Accepting Responsibilities Making Restitution Taking measures to prevent a recurrence of the incident promoting Reconciliation South Africa’s Truth and Reconciliation Commission (TRC) Reducing or preventing criminal behaviour Reducing crime victims’ post-traumatic stress symptoms and related costs Reducing crime victims’ desire for violent revenge against their offenders Providing both victims and offenders with more satisfaction with justice than the criminal justice system Structural Injustice inter-personal crime cannot be policed Inter-personal crime cannot be reduced by hard-line security measures Inter-personal crime cannot be reduced by punishment attending to the relational dimensions of justice attenting to the underlying factors that led to the commission of a crime Peacebuilding Mediation Conflict Transformation Restorative justice jurisprudence The developmental state The National Development Plan The Social Welfare White Paper Review National Policy Framework for Restorative Justice Professional social service Social movement Hate Crimes Criminal justice: Pre-trial (diversion) Pre-sentence Post sentence Family Law Court annexed mediation in civil matters Restorative justice in schools Restorative Justice an approach to Justice Collectively Identifying Harms, needs and Obligations Accepting Responsibilities Making Restitution Taking measures to prevent a recurrence of the incident promoting Reconciliation South Africa’s Truth and Reconciliation Commission (TRC) Reducing or preventing criminal behaviour Reducing crime victims’ post-traumatic stress symptoms and related costs Reducing crime victims’ desire for violent revenge against their offenders Providing both victims and offenders with more satisfaction with justice than the criminal justice system Structural Injustice inter-personal crime cannot be policed Inter-personal crime cannot be reduced by hard-line security measures Inter-personal crime cannot be reduced by punishment attending to the relational dimensions of justice attenting to the underlying factors that led to the commission of a crime Peacebuilding Mediation Conflict Transformation Restorative justice jurisprudence The developmental state The National Development Plan The Social Welfare White Paper Review National Policy Framework for Restorative Justice Professional social service Social movement Hate Crimes Criminal justice: Pre-trial (diversion) Pre-sentence Post sentence Family Law Court annexed mediation in civil matters Restorative justice in schools Restorative Justice an approach to Justice Collectively Identifying Harms, needs and Obligations Accepting Responsibilities Making Restitution Taking measures to prevent a recurrence of the incident promoting Reconciliation South Africa’s Truth and Reconciliation Commission (TRC) Reducing or preventing criminal behaviour Reducing crime victims’ post-traumatic stress symptoms and related costs Reducing crime victims’ desire for violent revenge against their offenders Providing both victims and offenders with more satisfaction with justice than the criminal justice system Structural Injustice inter-personal crime cannot be policed Inter-personal crime cannot be reduced by hard-line security measures Inter-personal crime cannot be reduced by punishment attending to the relational dimensions of justice attenting to the underlying factors that led to the commission of a crime Peacebuilding Mediation Conflict Transformation Restorative justice jurisprudence The developmental state The National Development Plan The Social Welfare White Paper Review National Policy Framework for Restorative Justice Professional social service Social movement Hate Crimes Criminal justice: Pre-trial (diversion) Pre-sentence Post sentence Family Law Court annexed mediation in civil matters Restorative justice in schools Restorative Justice an approach to Justice Collectively Identifying Harms, needs and Obligations Accepting Responsibilities Making Restitution Taking measures to prevent a recurrence of the incident promoting Reconciliation South Africa’s Truth and Reconciliation Commission (TRC) Reducing or preventing criminal behaviour Reducing crime victims’ post-traumatic stress symptoms and related costs Reducing crime victims’ desire for violent revenge against their offenders Providing both victims and offenders with more satisfaction with justice than the criminal justice system Structural Injustice inter-personal crime cannot be policed Inter-personal crime cannot be reduced by hard-line security measures Inter-personal crime cannot be reduced by punishment attending to the relational dimensions of justice attenting to the underlying factors that led to the commission of a crime Peacebuilding Mediation Conflict Transformation Restorative justice jurisprudence The developmental state The National Development Plan The Social Welfare White Paper Review National Policy Framework for Restorative Justice Professional social service Social movement Hate Crimes Criminal justice: Pre-trial (diversion) Pre-sentence Post sentence Family Law Court annexed mediation in civil matters Restorative justice in schools Restorative Justice an approach to Justice Collectively Identifying Harms, needs and Obligations Accepting Responsibilities Making Restitution Taking measures to prevent a recurrence of the incident promoting Reconciliation South Africa’s Truth and Reconciliation Commission (TRC) Reducing or preventing criminal behaviour Reducing crime victims’ post-traumatic stress symptoms and related costs Reducing crime victims’ desire for violent revenge against their offenders Providing both victims and offenders with more satisfaction with justice than the criminal justice system Structural Injustice inter-personal crime cannot be policed Inter-personal crime cannot be reduced by hard-line security measures Inter-personal crime cannot be reduced by punishment attending to the relational dimensions of justice attenting to the underlying factors that led to the commission of a crime Peacebuilding Mediation Conflict Transformation Restorative justice jurisprudence The developmental state The National Development Plan The Social Welfare White Paper Review National Policy Framework for Restorative Justice Professional social service Social movement Hate Crimes Criminal justice: Pre-trial (diversion) Pre-sentence Post sentence Family Law Court annexed mediation in civil matters Restorative justice in schools Restorative Justice an approach to Justice Collectively Identifying Harms, needs and Obligations Accepting Responsibilities Making Restitution Taking measures to prevent a recurrence of the incident promoting Reconciliation South Africa’s Truth and Reconciliation Commission (TRC) Reducing or preventing criminal behaviour Reducing crime victims’ post-traumatic stress symptoms and related costs Reducing crime victims’ desire for violent revenge against their offenders Providing both victims and offenders with more satisfaction with justice than the criminal justice system Structural Injustice inter-personal crime cannot be policed Inter-personal crime cannot be reduced by hard-line security measures Inter-personal crime cannot be reduced by punishment attending to the relational dimensions of justice attenting to the underlying factors that led to the commission of a crime Peacebuilding Mediation Conflict Transformation Restorative justice jurisprudence The developmental state The National Development Plan The Social Welfare White Paper Review National Policy Framework for Restorative Justice Professional social service Social movement Hate Crimes Criminal justice: Pre-trial (diversion) Pre-sentence Post sentence Family Law Court annexed mediation in civil matters Restorative justice in schools Restorative Justice an approach to Justice Collectively Identifying Harms, needs and Obligations Accepting Responsibilities Making Restitution Taking measures to prevent a recurrence of the incident promoting Reconciliation South Africa’s Truth and Reconciliation Commission (TRC) Reducing or preventing criminal behaviour Reducing crime victims’ post-traumatic stress symptoms and related costs Reducing crime victims’ desire for violent revenge against their offenders Providing both victims and offenders with more satisfaction with justice than the criminal justice system Structural Injustice inter-personal crime cannot be policed Inter-personal crime cannot be reduced by hard-line security measures Inter-personal crime cannot be reduced by punishment attending to the relational dimensions of justice attenting to the underlying factors that led to the commission of a crime Peacebuilding Mediation Conflict Transformation Restorative justice jurisprudence The developmental state The National Development Plan The Social Welfare White Paper Review National Policy Framework for Restorative Justice Professional social service Social movement Hate Crimes Criminal justice: Pre-trial (diversion) Pre-sentence Post sentence Family Law Court annexed mediation in civil matters Restorative justice in schools Restorative Justice an approach to Justice Collectively Identifying Harms, needs and Obligations Accepting Responsibilities Making Restitution Taking measures to prevent a recurrence of the incident promoting Reconciliation South Africa’s Truth and Reconciliation Commission (TRC) Reducing or preventing criminal behaviour Reducing crime victims’ post-traumatic stress symptoms and related costs Reducing crime victims’ desire for violent revenge against their offenders Providing both victims and offenders with more satisfaction with justice than the criminal justice system Structural Injustice inter-personal crime cannot be policed Inter-personal crime cannot be reduced by hard-line security measures Inter-personal crime cannot be reduced by punishment attending to the relational dimensions of justice attenting to the underlying factors that led to the commission of a crime Peacebuilding Mediation Conflict Transformation Restorative justice jurisprudence The developmental state The National Development Plan The Social Welfare White Paper Review National Policy Framework for Restorative Justice Professional social service Social movement Hate Crimes Criminal justice: Pre-trial (diversion) Pre-sentence Post sentence Family Law Court annexed mediation in civil matters Restorative justice in schools Restorative Justice an approach to Justice Collectively Identifying Harms, needs and Obligations Accepting Responsibilities Making Restitution Taking measures to prevent a recurrence of the incident promoting Reconciliation South Africa’s Truth and Reconciliation Commission (TRC) Reducing or preventing criminal behaviour Reducing crime victims’ post-traumatic stress symptoms and related costs Reducing crime victims’ desire for violent revenge against their offenders Providing both victims and offenders with more satisfaction with justice than the criminal justice system Structural Injustice inter-personal crime cannot be policed Inter-personal crime cannot be reduced by hard-line security measures Inter-personal crime cannot be reduced by punishment attending to the relational dimensions of justice attenting to the underlying factors that led to the commission of a crime Peacebuilding Mediation Conflict Transformation Restorative justice jurisprudence The developmental state The National Development Plan The Social Welfare White Paper Review National Policy Framework for Restorative Justice Professional social service Social movement Hate Crimes Criminal justice: Pre-trial (diversion) Pre-sentence Post sentence Family Law Court annexed mediation in civil matters Restorative justice in schools Restorative Justice an approach to Justice Collectively Identifying Harms, needs and Obligations Accepting Responsibilities Making Restitution Taking measures to prevent a recurrence of the incident promoting Reconciliation South Africa’s Truth and Reconciliation Commission (TRC) Reducing or preventing criminal behaviour Reducing crime victims’ post-traumatic stress symptoms and related costs Reducing crime victims’ desire for violent revenge against their offenders Providing both victims and offenders with more satisfaction with justice than the criminal justice system Structural Injustice inter-personal crime cannot be policed Inter-personal crime cannot be reduced by hard-line security measures Inter-personal crime cannot be reduced by punishment attending to the relational dimensions of justice attenting to the underlying factors that led to the commission of a crime Peacebuilding Mediation Conflict Transformation Restorative justice jurisprudence The developmental state The National Development Plan The Social Welfare White Paper Review National Policy Framework for Restorative Justice Professional social service Social movement Hate Crimes Criminal justice: Pre-trial (diversion) Pre-sentence Post sentence Family Law Court annexed mediation in civil matters Restorative justice in schools Restorative Justice an approach to Justice Collectively Identifying Harms, needs and Obligations Accepting Responsibilities Making Restitution Taking measures to prevent a recurrence of the incident promoting Reconciliation South Africa’s Truth and Reconciliation Commission (TRC) Reducing or preventing criminal behaviour Reducing crime victims’ post-traumatic stress symptoms and related costs Reducing crime victims’ desire for violent revenge against their offenders Providing both victims and offenders with more satisfaction with justice than the criminal justice system Structural Injustice inter-personal crime cannot be policed Inter-personal crime cannot be reduced by hard-line security measures Inter-personal crime cannot be reduced by punishment attending to the relational dimensions of justice attenting to the underlying factors that led to the commission of a crime Peacebuilding Mediation Conflict Transformation Restorative justice jurisprudence The developmental state The National Development Plan The Social Welfare White Paper Review National Policy Framework for Restorative Justice Professional social service Social movement Hate Crimes Criminal justice: Pre-trial (diversion) Pre-sentence Post sentence Family Law Court annexed mediation in civil matters Restorative justice in schools Restorative Justice an approach to Justice Collectively Identifying Harms, needs and Obligations Accepting Responsibilities Making Restitution Taking measures to prevent a recurrence of the incident promoting Reconciliation South Africa’s Truth and Reconciliation Commission (TRC) Reducing or preventing criminal behaviour Reducing crime victims’ post-traumatic stress symptoms and related costs Reducing crime victims’ desire for violent revenge against their offenders Providing both victims and offenders with more satisfaction with justice than the criminal justice system Structural Injustice inter-personal crime cannot be policed Inter-personal crime cannot be reduced by hard-line security measures Inter-personal crime cannot be reduced by punishment attending to the relational dimensions of justice attenting to the underlying factors that led to the commission of a crime Peacebuilding Mediation Conflict Transformation Restorative justice jurisprudence The developmental state The National Development Plan The Social Welfare White Paper Review National Policy Framework for Restorative Justice Professional social service Social movement Hate Crimes Criminal justice: Pre-trial (diversion) Pre-sentence Post sentence Family Law Court annexed mediation in civil matters Restorative justice in schools Restorative Justice an approach to Justice Collectively Identifying Harms, needs and Obligations Accepting Responsibilities Making Restitution Taking measures to prevent a recurrence of the incident promoting Reconciliation South Africa’s Truth and Reconciliation Commission (TRC) Reducing or preventing criminal behaviour Reducing crime victims’ post-traumatic stress symptoms and related costs Reducing crime victims’ desire for violent revenge against their offenders Providing both victims and offenders with more satisfaction with justice

W(H)ITHER RESTORATIVE JUSTICE IN SOUTH AFRICA?An Updated Status Review 2019

Mike Batley and Ann Skelton

W(H)ITHER RESTORATIVE JUSTICE in SOUTH AFRICA? AN UPDATED STATUS REVIEW 2019

MIKE BATLEY AND ANN SKELTON

© 2019, Restorative Justice Centre

Copyright in the volume as a whole is vested in the Restorative Justice Centre, and no part may be reproduced in whole or in part without the express permission, in writing, of both the authors and publishers.

The opinions expressed in this monograph do not necessarily reflect those of the Restorative Justice Centre, its Trustees, or donors.

Authors contribute to RJC publications in their personal capacity.

First published by the Restorative Justice Centre P O Box 29516 Sunnyside Pretoria, South Africa

Contact the RJC: email: [email protected]

mailto:[email protected]

Table of Contents

ACKNOWLEDGEMENTS .................................................................................................................................................. 4

ABOUT THE AUTHORS ..................................................................................................................................................... 4

EXECUTIVE SUMMARY .................................................................................................................................................... 5

1 INTRODUCTION............................................................................................................................................ 6

2 DEVELOPMENTS IN THE FIELD OF RESTORATIVE JUSTICE ....................................................................... 7

2.1 Development in arenas beyond criminal justice ..................................................................................................... 7

2.2 Development in evaluation .......................................................................................................................................... 7

2.3 Locating restorative justice in the related fields of human rights, access to justice, peacebuilding and social justice ..................................................................................................................................................................... 8

2.4 Restorative justice as a social movement .................................................................................................................. 9

3 A REVIEW OF THE CURRENT POLITICAL AND POLICY ENVIRONMENT ................................................... 11

3.1 South Africa’s Truth and Reconciliation Commission (TRC) .................................................................................. 11

3.2 Restorative justice jurisprudence ............................................................................................................................... 14

3.3 Institutional arrangements for delivering restorative justice services............................................................... 16

3.4 The developmental state .............................................................................................................................................. 18

3.5 The National Development Plan ................................................................................................................................. 22

3.6 The Social Welfare White Paper Review .................................................................................................................... 25

3.7 National Policy Framework for Restorative Justice ................................................................................................. 26

3.8 Recent Policy Making ..................................................................................................................................................... 27

3.9 Academic discourse ....................................................................................................................................................... 29

4 GENERAL PRACTICE CURRENTLY ................................................................................................................ 31

4.1 Methodology .................................................................................................................................................................... 31

4.2 Some Important distinctions and focus .................................................................................................................... 31

4.3 Criminal justice: Pre-trial (diversion) .......................................................................................................................... 32

4.4 Pre-sentence..................................................................................................................................................................... 42

4.5 Post sentence ................................................................................................................................................................... 42

4.6 Family Law ........................................................................................................................................................................ 49

4.7 Court annexed mediation in civil matters ................................................................................................................. 51

4.8 Initiatives in education policy and private schools ................................................................................................. 51

5 ANALYSIS AND REFLECTION ...................................................................................................................... 56

6 RECOMMENDATIONS ................................................................................................................................... 59

SELECTED BIBLIOGRAPHY .............................................................................................................................................. 60

4

ACKNOWLEDGEMENTS

The Authors express their appreciation for the assistance of Gertrude Quan in the editing and citations checking for this monograph, and Ann Skelton acknowledges funding from the National Research Foundation that was utilized.

A special thanks to all those interviewed for sharing their time, knowledge and experience during the interviews.

Design, layout and typesetting by Ink Design Publishing Solutions, Cape Town.

ABOUT THE AUTHORS

Mike BatleyMike is the co-founder of the Restorative Justice Centre, which he continues to direct. He is a registered social worker and former probation officer. He has published a number of book chapters and articles on restorative justice and has been quoted in superior court judgements. He was a member of the UN Expert Group Meeting on Restorative Justice in Criminal Matters 22–24 November 2017.

Ann SkeltonAnn is Professor of Law at the University of Pretoria where she holds the UNESCO Chair on Education Law in Africa. Her doctoral thesis was on restorative justice and child justice, and she played a leading role in the development of the Child Justice Act, and in the reduction of child detention in South Africa. She has published widely on restorative justice and on child law, and has appeared as counsel in a number of high profile cases in the apex courts. She is a member of the UN Committee on the Rights of the Child.

http://www.inkdesign.co.za

5

EXECUTIVE SUMMARY

In 2006, Skelton and Batley published a monograph Charting progress, mapping the future: restorative justice in South Africa. It was deemed useful to assess progress since that time, locating the review in developments in the field of restorative justice generally, and the conversation taking place in the country about the significance of the TRC, the broader policy environment in South Africa, practice and the nature and scope of direct implementation of restorative justice services.

The first section reviews South Africa’s current political and policy environment as it pertains to restorative justice. This includes restorative justice jurisprudence, broader policy frameworks such as the developmental state, the National Development Plan, the Social Welfare White Paper Review, the National Policy Framework for Restorative Justice and recent policy making.

The next section provides a snapshot of current general restorative justice practice at the different stages within the criminal justice system. It also looks at recent developments in mediation aligned with restorative justice in family law, court-annexed mediation and schools.

The authors conclude that the South African political and policy environment and current practice show that while it was embraced with some enthusiasm during the period 1996 to 2008, further development and implementation has stalled. After being in development since 2009, the Restorative Justice National Policy Framework appears to have been completely side-lined. There is no implementation plan and no attention to resourcing issues. There are significant gaps in data from government agencies and data from civil society organisations suggest lower levels of implementation than a decade ago.

Despite the promising signs from both local and international research of the value of restorative justice processes and related programmes in contributing to crime reduction, offender reintegration and victim empowerment, as well as the effective administration of justice in general, South Africa has failed to systemically embrace these practices. This also indicates the lack of ability to provide leadership in this area by the state.

Despite this, the authors identify a number of opportunities for strengthening and expanding restorative justice practice and make several recommendations regarding the finalisation of policy, clarification of mutual roles, public awareness, accrediting training and practitioners, record keeping and data collection.

6

1 INTRODUCTION

In 2006, Skelton and Batley published a monograph Charting progress, mapping the future: restorative justice in South Africa. More than a decade has passed, and it seems an appropriate time to assess developments. The 2006 work will henceforth be referred to as Charting Progress (2006). It is also now just over twenty years since the country’s Truth and Reconciliation Commission (TRC) started its work. This paper will seek to locate the review of the progress on implementing restorative justice within developments in the field of restorative justice generally, the conversation taking place in the country about the significance of the TRC, the broader policy environment in South Africa, and the nature and scope of direct implementation.

Since the earliest days of the restorative justice movement there has been debate about understanding and conceptualising it.1 While the wealth of academic writing points to significant development on this score, it is still not uncommon in South Africa to hear the term used fairly loosely. The draft National Policy Framework for Restorative Justice (2015) (hereafter the NPFRJ) described in detail below attempts to address this problem by providing the basis for shared understanding about restorative justice, and we proceed from the definition contained in the framework:

Restorative justice is defined as an approach to justice that aims to involve the parties to a dispute and others affected by the harm (victims, offenders, families concerned and community members) in collectively identifying harms, needs and obligations through accepting responsibilities, making restitution, and taking measures to prevent a recurrence of the incident and promoting reconciliation; this may be applied at any appropriate stage after the incident.2

The significant features of this definition are firstly, that it talks about involving ‘the parties to a dispute’ – this goes beyond the criminal justice context. Secondly, it is more communitarian by drawing in a broader group than just the protagonists involved in the dispute, and allows them to ‘collectively’ identify the harms, needs, and obligations. Thirdly, it includes ‘taking measures to prevent a recurrence’, which highlights the forward-looking nature of restorative justice. Finally, restorative justice may be applied at ‘any appropriate stage after the incident’. This reflects the fact that healing takes time, and that it is not always possible to achieve restorative outcomes immediately after the incident.

1 See for example the list of references cited by G Johnstone & D Van Ness ‘The meaning of restorative justice’ in G Johnstone & D Van Ness (eds) Handbook on restorative justice (2007).

2 The NPFRJ (2015) 14.

7

DEVELOPMENTS IN THE FIELD OF RESTORATIVE JUSTICE2Over the past ten years there are a number of important aspects that mark the development of the field. We have chosen to name a few that seem relevant to South Africa. We will begin at the macro-level – where we will consider restorative justice in the policy environment, before focussing in on general practice of restorative justice in criminal justice, mediation, education policy and hate crimes.

2.1 Development in arenas beyond criminal justice

Johnstone and van Ness,3 identify three different conceptions of restorative justice and how the third, the transformative conception, goes beyond the conceptions of encounter and reparation to emphasise the inextricable connections to other people and indeed to the external world, indicating a ‘lifestyle of restorative justice’. This can be seen in the way this understanding has begun to play out in the development of restorative justice in arenas well beyond the criminal justice context in which it started and still functions. Elements of this development will be seen clearly in the analyses below of South Africa’s policy environment and the references to restorative justice in policy and practice relating to traditional leaders, family law, schools and court annexed mediation.

2.2 Development in evaluation

South Africa continues to experience exponentially high levels of interpersonal violence – approximately a third of all recorded crimes.4 A government-commissioned report that sought to understand violent crime in the country concluded that roughly nine out of ten cases of serious and common assault, four out of five cases of murder, and three out of four cases of rape which are recorded by the police are reported to involve perpetrators who are known to the victim.5 Sanctions that have little bearing on the context in which the incident occurred are unlikely to be effective. Such inter-personal crime cannot be policed or reduced by typical hard-line security measures or punishment: these crimes arise out of relationship-based conflict and should therefore be addressed at this level. This is one reason that a restorative justice approach, with its emphasis on the relational dimensions of justice and attention to the underlying factors that led to the commission of a crime, holds much promise.

In the light of this reality, the results about the effectiveness of restorative justice are important to note. Johnstone and van Ness6 point out the complexity involved, as well as the extensive efforts that have been made in recent years to conduct rigorous research about the effectiveness of restorative justice.

3 n 1, 5.4 Factsheet ‘South Africa’s official crime statistics’ 2012/13 https://africacheck.org/reports/factsheet-south-africas-official-

crime-statistics-for-2012 (accessed 23 April 2018). While various reports about crime statistics do not necessarily reflect this trend each year, the percentage does appear to remain more or less consistent.

5 D Bruce ‘Tackling armed violence key findings and recommendations of the study on the violent nature of crime in South Africa’ 2011 42 https://www.csvr.org.za/docs/study/6.TAV_final_report_13_03_10.pdf (accessed 7 June 2019).

6 n 1, 394–444.

https://africacheck.org/reports/factsheet-south-africas-official-crime-statistics-for-2012%20(accessed%2023%20April%202018

https://africacheck.org/reports/factsheet-south-africas-official-crime-statistics-for-2012%20(accessed%2023%20April%202018

https://www.csvr.org.za/docs/study/6.TAV_final_report_13_03_10.pdf

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International as well as local research has continued to confirm the significant impact of restorative justice regarding:

• Reducing or preventing criminal behaviour

• Reducing crime victims’ post-traumatic stress symptoms and related costs

• Reducing crime victims’ desire for violent revenge against their offenders

• Providing both victims and offenders with more satisfaction with justice than the criminal justice system.7

While South African research regarding these dimensions is limited, similar conclusions have been reached in the few studies undertaken, indicating that there is value in advancing implementation of the entire restorative justice field.8

2.3 Locating restorative justice in the related fields of human rights, access to justice, peacebuilding and social justice

A continuing theme that became evident in the early 2000s is the relationship of restorative justice to human rights and access to justice.9 At the 9th International Conference of the European Forum for Restorative Justice (EFRJ) held in June 2016 under the theme ‘Realising restorative justice: Human rights and personal realities’, the introductory note of the conference report affirmed that human rights and restorative justice values and principles were closely linked.10 It was observed that human rights of victims, offenders and the community indicate the value of using restorative justice in cases of conflict or criminal offences and to take the outcome into account. The conference organisers aimed to demonstrate that restorative justice could more directly address human rights challenges, through protecting and empowering vulnerable groups and, ensuring justice and security. The conference organisers envisaged a role for restorative justice in encouraging a social dialogue about thorny issues such as refugees and radicalisation.11

Writers within the peacebuilding tradition have articulated the connection between structural injustice and personal, community and national destruction. Structural injustice is defined as follows: ‘Disparities, disabilities and deaths result when systems, institutions, policies or cultural beliefs meet some people’s needs and human rights at the expense of others. Structural violence creates relationships that cause secondary violence to occur at the personal, community and national level’.12 These can be responded to with the understanding of conflict transformation that ‘recognises the immediate situation as well as the

7 See LW Sherman & H Strang ‘Restorative justice: the evidence’ 2007 http://www.iirp.edu/pdf/RJ_full_report.pdf (accessed 25 August 2009).

8 Monitor and Evaluation Report for the Khulisa Justice And Restoration Programme (Jarp): Report for Mediation Cases from April 2010 To April 2012 https://www.khulisa.org.za/resources/ accessed 24 October 2019. H Hargovan ‘Restorative justice: yesterday, today and tomorrow – making sense of shifting perspectives in crime control and criminal justice in South Africa’(2007)20(1) Acta Criminologica 79. H Hargovan ‘Evaluating restorative justice: working out ‘what works’ (2011) 24(1) Acta Criminologica 67.

H Hargovan ‘Violence, victimisation and parole. Reconciling restorative justice and victim participation’(2015) 54 Crime Quarterly 55 Pretoria, Institute for Security Studies, available at http://dx.doi.org/10.4314/sacq.v54i1.5

9 See for example A Skelton & C Frank ‘How does restorative justice address human rights and due process issues?’ in H Zehr and B Toews (eds) Critical issues in restorative justice (2004) 203–213; A Skelton & M Sekhonyane ‘Human rights and restorative justice’ in G Johnstone & D van Ness (eds) Handbook of restorative justice (2007) 580–597; A Skelton ‘Human rights and restorative justice’ in T Gavrielides (ed) Routledge international handbook on restorative justice (2018)137–149

10 The 9th international conference of the European Forum for Restorative Justice (EFRJ) held in June 2016 under the theme ‘Realising restorative justice: human rights and personal realities’.

11 The 9th international conference of the European Forum for Restorative Justice.12 L Schirch The little book of strategic peacebuilding (2004)8–24.

http://www.iirp.edu/pdf/RJ_full_report.pdf

https://www.khulisa.org.za/resources/

http://dx.doi.org/10.4314/sacq.v54i1.5

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underlying patterns and context. It has been defined as ’to envision and respond to the ebb and flow of social conflict as life-giving opportunities for creating constructive change processes that reduce violence, increase justice in direct interaction and social structures and respond to real-life problems in human relationships’.13

In South Africa, with serious violence at multiple levels (high levels of substance abuse, suicide, family and domestic violence, crime, community protests, student protests, political violence) these perspectives and the proven effectiveness of restorative justice point to its potentially profound relevance especially when understood as part of peacebuilding and conflict transformation. Henkeman has suggested that:

‘Since restorative justice practitioners are in partnership with the state to deal with crime more holistically, it follows that these partners should point out the hitherto ‘invisible’ interaction between individual and structural factors, as well as make appropriate policy recommendations. Restorative justice practitioners are in a position to render structural violence visible through the cases they mediate’.14

However, practitioners are not trained to recognise and record patterns of interaction of individual and structural factors in the cases they mediate, nor are they trained to make victims and offenders aware, conscious, informed and educated about the social forces that create the environments they live in.15 Henkeman recommends specific training to address this shortcoming. The distinctions between crime and violence within the context of structural injustice are well articulated in Deutsche Gesellschaft für Internationale Zusammenarbeit (GIZ’s) Inclusive Violence and Crime Prevention (VCP) for Safe Public Spaces.16

2.4 Restorative justice as a social movement

Stauffer has taken this concern a step further.17 He concurs with Henkeman’s analysis that by concentrating on justice in interpersonal interactions there has been a tendency to overlook structural injustice and the need for systemic change. He suggests that there has been a tendency to limit restorative justice to a set of ‘technical skills’, a well-packaged professional social service that has been given legitimacy through its general application of procedural and policy protocols. The obsession with standardized bureaucratic growth causes restorative justice to become quite susceptible to co-option or easy assimilation into already existing institutional systems be that in the judicial, corrections, or educational arenas. Subsequently, restorative justice then becomes one more supplemental program that supports the widening net of social control imposed by the current, often dysfunctional, social systems already in existence. The ‘unintended consequences’ of this phenomenon are that restorative justice is in fact undergirding the very systems it purports to want to reform, or even transform.18

13 JP Lederach The little book of conflict transformation (2003)14.14 Unpublished: S Henkeman ‘Restorative justice as a peacebuilding tool: a South African case study’ unpublished PhD thesis,

University of KwaZulu Natal, 2013 246.15 Henkeman (n 14) 251. 16 See ‘Building safer communities through systemic approaches to violence prevention. Tackling violence in South Africa:

background and concepts’ Book one: 34–36 http://www.saferspaces.org.za (accessed 27 November 2014).17 C Stauffer ‘Formative Mennonite mythmaking in peacebuilding & restorative justice’ in A Klager & M Gopin (eds) From

suffering to solidarity: the historical seeds of Mennonite interreligious, interethnic and international peacebuilding (2015) 140–160.

18 For more on this subject, Stauffer refers to the work of D Greene ‘Repeat performance: is restorative justice another good reform gone bad?’ (2013) Contemporary Justice Review 359–390.

http://www.saferspaces.org.za

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Stauffer proposes that the answer to this problem is to integrate personal and structural agency, to balance restorative justice as an ‘interpersonal, social service practice’ and a ‘framing paradigm for systemic change’ by understanding restorative justice as a social movement. He identifies three tasks necessary to do this:

• Form individual and organizational alliances that can support the strategic, organizational and logistical requirements of durable change

• Develop and sustain strong localized practice

• Ensure collaboration between individuals and organizations both within and without the field to drive transformation of the system as whole.

The range of largely unconnected civil society organisations currently practising and promoting restorative justice in South Africa that is described in the final section of this paper points to the emergence of this broader movement across sectors in South Africa and the need to attend to the tasks Stauffer proposes. An additional dimension of this perspective has been the development of knowledge and resources in the field of crime and violence prevention and the recognition that this has to be increasingly outside the scope of the criminal justice system. In the government commissioned study about the particularly violent nature of the country’s crime Bruce makes the following recommendations:19 Strengthening the criminal justice system:

• Creating safety in public and other spaces such as schools

• Child and youth development especially aspects such as bullying

• Addressing the culture of violence

• Engaging in issues of social justice.

These recommendations have since been strengthened by a National Social Crime Prevention Strategy and a number of other projects, particularly GIZ’s Inclusive Violence and Crime Prevention (VCP) for Safe Public Spaces20 that contains six comprehensive toolkits. Although the toolkit does not refer specifically to restorative justice, it does include community mediation and conflict resolution in its understanding of law enforcement.

19 Bruce (n 5) 53–62. 20 See ‘Building safer communities through systemic approaches to violence prevention. Tackling violence in South Africa:

background and concepts’ Book one: 45 http://www.saferspaces.org.za. (accessed 27 November 2014).

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3.1 South Africa’s Truth and Reconciliation Commission (TRC)

South Africa has been a country in transition since the early 1990s. One of the institutions that has shaped this transition significantly is the Truth and Reconciliation Commission.21

SA’s interim Constitution of 199322 provided the rationale for the Truth and Reconciliation Commission (TRC). The epilogue23 to the interim Constitution laid a foundation for South Africans to transcend the divisions of the past, ‘on the basis that there is a need for understanding but not for vengeance, a need for reparation but not retaliation, a need for ubuntu but not for victimisation’.

South Africa’s Truth and Reconciliation Commission (TRC) was formally established late in 1995 by the Promotion of National Unity and Reconciliation Act.24 The general objective of the TRC was ‘to promote national unity and reconciliation in a spirit of understanding that transcends the conflicts and divisions of the past’.25 The Act26 spelt out five tasks, namely to establish a picture of the gross human rights violations covered, to facilitate the granting of amnesty for specific acts under certain conditions, to grant victims an opportunity to relate their own accounts and to recommend reparation measures for them, and to make general recommendations. The Commission operated through three committees: The Human Rights Violations Committee, the Amnesty Committee and the Reparation and Rehabilitation Committee.

While the Promotion of National Unity and Reconciliation Act does not use the term restorative justice, the final report of the TRC offered a definition of restorative justice27 based on one proposed by the SA Law Reform Commission.28 There has been considerable analysis and debate about the appropriateness29

21 This section draws on AM Skelton ‘The influence of the theory and practice of restorative justice in South Africa with special reference to child justice’ unpublished PhD thesis, University of Pretoria, 2005.

22 Act 200 of 1993. All-party negotiations formally began with the convening of the Conference for a Democratic South Africa (CODESA). The parties agreed on a 2 stage transition. The Constitutional Court (Ex Parte Chairperson of the Constitutional Assembly: in re Certification of the Constitution of the Republic of South Africa 1996 (4) SA 744 (CC) par 13) succinctly described the process as follows: ‘An interim government, established and functioning under an interim constitution agreed to by the negotiating parties would govern the country on a coalition basis while a final constitution was being drafted by the elected parliament’.

23 The epilogue is often referred to as the ‘post-amble’ to the interim Constitution. The word ‘epilogue’ is drawn from Mahomed DP in Azanian People’s Organisation (AZAPO) v The President of the Republic of South Africa 1996 (4) SA 671 (CC).

24 Act 34 of 1995. The pre-amble to that Act echoed the language contained in the epilogue to the interim Constitution.25 Promotion of National Unity and Reconciliation Act 34 of 1995 s 3(1).26 S 3(1) and (2).27 Restorative justice as a process which: (a) seeks to redefine crime (from breaking laws to violations against human beings);

(b) is based on reparation (as it aims at the healing and restoration of all concerned); (c) encourages victims, offenders and the community to be directly involved in resolving conflict and (d) supports a criminal justice system that aims at accountability of offenders, and the full participation of victims and offenders Truth and Reconciliation Commission of South Africa, Report (1) 1998 126.

28 South African Law Commission Issue paper 7 ‘Sentencing restorative justice’ 9.29 There is debate over the extent to which the TRC was an appropriate vehicle. For strands of this debate see M Minow Between

vengeance and forgiveness (1998), E Fattah ‘Is punishment the appropriate response to gross human rights violations? Is a non-punitive justice system feasible?’ In E Van der Spuy, S Parmentier & A Dissel (eds) Restorative justice: politics, policies and prospects (2007) 209–227 and A Snyman ‘Thoughts on dealing with the legacies of radically unjust political behaviour’ In W Le Roux and K Van Marle (eds) Law, memory and the legacy of apartheid: ten years after AZAPO v President of South Africa (2007) 3–10. For a comprehensive list of sources on the TRC see L Mallinder ‘Indemnity, amnesty, pardon and prosecution guidelines in South Africa’ Working paper No. 2, Institute of Criminology and Criminal Justice, Queen’s University Belfast.

3 A REVIEW OF THE CURRENT POLITICAL AND POLICY ENVIRONMENT

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and effectiveness30 of SA’s TRC, and whether it presented a comprehensive model of restorative justice31 or whether it placed too much emphasis on apology and forgiveness32and the impact it has had. While it is not necessary to engage in these debates in any detail here, it is important to recognise that the TRC was based on restorative justice principles33 and that these have shaped the country’s landscape in various ways. The literature of transitional justice has regarded the TRC ‘an instructive example’ and ‘a significant development in truth commissions’.34 For example. Llewellyn endorsed the TRC’s understanding of restorative justice as a theory of justice, rather than as a set of practices that differ from mainstream justice practices.35 In particular, she emphasises the relational dimensions of justice that a restorative view articulates: The restoration of relationships in both personal and socio-political spaces to reflect equal dignity, concern and respect.

The TRC provided a major point of reference for engaging difficult questions about the nature of justice, proposing specific principles and presenting restorative justice as a theory of justice.36 This influence has been seen clearly in policy and legislation (most explicitly in the Child Justice Act, 2008, but in various other proposed and approved statutes relating to traditional leaders, family law, schools and court annexed mediation). It has also generated a valuable legacy in the South African Constitutional Court’s jurisprudence.37 Furthermore, restorative justice has continued to surface in official and public discourse.38

The TRC Report grappled with many dimensions of the country’s transition and suggested four kinds of truth as opposed to a monolithic understanding of factual truth.39 It reflected on the issues of truth, reconciliation, amnesty, and justice and the challenges in opting for conditional amnesty as a way of creating the conditions that would yield maximum information while still holding perpetrators accountable. The Report regarded these ‘ tensions and links between amnesty, truth and justice, and the

30 For further reading on this debate see R Wilson The politics of truth and reconciliation in South Africa: legitimizing the post-apartheid state (2001); A Chapman & H van der Merwe Truth and reconciliation in South Africa: did the TRC deliver? (2007).

31 See J Allen ‘Between retribution and restoration: justice and the TRC’ (2001) South African Journal of Philosophy 22–41 ; R Wilson The politics of truth and reconciliation in South Africa: legitimizing the post-apartheid state (2001) 531–62; S Parmentier ‘South African Truth & Reconciliation Commission: towards restorative justice in the field of human rights’ in E Fattah and S Parmentier (eds) Victim policies and criminal justice on the road to restorative justice (2001) 401–428 ; P Lenta ‘In defence of AZAPO and restorative justice’ in W Le Roux and K Van Marle (eds) Law, memory and the legacy of apartheid: ten years after AZAPO v President of South Africa (2007) 149–182.

32 T Govier & W Verwoerd ‘The promise and pitfalls of apology’ In E Doxtader and C VillaVicencio (eds) To repair the irreparable (2004) 242–255 ; T Madlingozi ‘Good victim, bad victim: apartheid’s beneficiaries, victims and the struggle for justice’ In W Le Roux and K Van Marle (eds) Law, memory and the legacy of apartheid: ten years after AZAPO v President of South Africa (2007) 107–126; B Hamber Transforming societies after political violence: truth, reconciliation, and mental health (2009) 1–255.

33 D Tutu No future without forgiveness (1999) 24–26.34 J Llewellyn ‘Truth commissions and restorative justice’ in G Johnstone & D Van Ness (eds) handbook of restorative Justice

(2007) 361.35 Llewellyn (n 34) 355. 36 See Llewellyn (n 34). 37 A Skelton ‘The South African Constitutional Court’s restorative justice jurisprudence’ (2013) 1(1) Restorative Justice: An

International Journal 122–145.38 See for example http://www.iol.co.za/news/crime-courts/daughter-of-victim-forgives-de-kock-1.1232693; http://ewn.

co.za/2017/11/17/masutha-recommends-janusz-walus-attend-therapeutic-programmes; http://www.independent.co.uk/news/people/oscar-pistorius-reeva-steenkamps-parents-request-meeting-with-athlete-following-his-sentencing-for-9735566.html; https://www.news24.com/SouthAfrica/News/ferguson-to-alleged-rapist-i-am-offering-you-a-restorative-justice-process-20171024.

39 A Sachs ‘His name was Henry’ in W James & L Van de Vijver After the TRC: reflections on truth and reconciliation in South Africa (2000) 96–97. Sachs has described these as microscopic or observational truth (which operates in a limited, prescribed, field), dialogic truth (which involves multiple perspectives and interpretations, logical truth (whereby it is possible to deduce truth by a process of inference) and experiential truth (which can be generalised out of lived experiences). According to Sachs the TRC ‘enabled this experiential truth to come out, wave upon wave’.

http://www.iol.co.za/news/crime-courts/daughter-of-victim-forgives-de-kock-1.1232693

http://ewn.co.za/2017/11/17/masutha-recommends-janusz-walus-attend-therapeutic-programmes

http://ewn.co.za/2017/11/17/masutha-recommends-janusz-walus-attend-therapeutic-programmes

http://www.independent.co.uk/news/people/oscar-pistorius-reeva-steenkamps-parents-request-meeting-with-athlete-following-his-sentencing-for-9735566.html



https://www.news24.com/SouthAfrica/News/ferguson-to-alleged-rapist-i-am-offering-you-a-restorative-justice-process-20171024

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relationship between the Commission and the criminal justice system in South Africa (as preparing) the way for the Commission’s principal task of ‘restoring the human and civil dignity of victims’.40 The Report was clear about the TRC’s explicit endorsement of restorative justice and provides a comprehensive and nuanced understanding of how restorative justice addresses the needs of victims and holds perpetrators accountable.41 Most significantly, it ‘recognised the need for social and institutional reparations (as) an important part of restorative justice42 and the need for a deeper and wider sense of moral accountability beyond individuals in the political and security arenas.43 In the process of building a bridge to a new future, it called on those who have benefited and are still benefiting from a range of unearned privileges under apartheid (as having) a crucial role to play. Although this was not part of the Commission’s mandate, it was recognised as a vital dimension of national reconciliation. This means that a great deal of attention must be given to an altered sense of responsibility; namely the duty or obligation of those who have benefited so much (through racially privileged education, unfair access to land, business opportunities and so on) to contribute to the present and future reconstruction of our society.44

Conversations that filtered into public discourse,45 reflect particular concern about the inadequacy of a narrow focus in transitional justice generally and of individualizing oppression and ultimately of the apparent choice that was made for peace rather than justice46. In this view, the call by the TRC to people who benefitted from apartheid (see above) has in many ways gone unheeded. This results in these beneficiaries being ignorant of the cost of privilege and of being unconcerned about systemic transformation. These debates emphasise the need for a broader view that ensures that the transition was not limited to the experience of a political and economic elite, but that it addresses development, socio-economic rights, community reconciliation and the restoration of relations between people. Despite these very fundamental criticisms and debate, the existence and work of the TRC has been defended as a ‘bold model of restorative justice’ which ensured that the culture of silence that had existed for decades about gross abuses was broken, creating a historical, public record.47 The TRC made an attempt to provide accountability since amnesty was granted on an individual basis and the process forced perpetrators to publicly admit responsibility for their acts, and those who failed to apply for or were refused amnesty were to be prosecuted for their crimes.48 However, there is a critique, including by some former TRC Commissioners, that the failure of the prosecution authorities to bring prosecutions has undermined the process. A letter sent on 19 February 2019 to President Cyril Ramaphosa by former Commissioner Yasmin Sooka on behalf of herself and several other Commissioners,49 called for the appointment of a Commission

40 Truth and Reconciliation Commission of South Africa (hereafter the TRC report (1), Report, (1), 1998 125–126.41 The TRC report (1) (n 40) 128–131.42 The TRC report (1) (n 40) 130.43 The TRC report (1) (n 40) 131. 44 The TRC report (1) (n 40) 134.45 ‘Youth contemplate the truth and reconciliation commission: reflections and possibilities’ Round table on 11 August 2015

report http://www.ijr.org.za/news-and-events.php?nid=251&type=news (accessed 14 August 2016); T Madlingozi ‘Taking stock of the South African truth and reconciliation commission 20 years later: no truth, no reconciliation and no justice’ (2015). Paper presented at 3rd international colloquium of the insttuto humanitas at UNISINOS, Brazil 16 September 2015; T Maepa Beyond retribution: prospects for restorative justice in South Africa (2005). https://issafrica.s3.amazonaws.com/site/uploads/Mono111.pdf(accessed 5 December 2005).

46 See also ‘History for the future’, a series of interviews of TRC commissioners during 2016 conducted by Pippa Green on http://www.702.co.za/features/139/trc.

47 T Maepa ‘The truth and reconciliation commission as a model of restorative justice’ in T Maepa (ed) Beyond retribution: prospects for restorative justice in South Africa (2005)74–75.

48 P Lenta ‘In defence of AZAPO and restorative justice’ in W Le Roux and K van Marle (eds) Law, memory and the legacy of apartheid (2007) 168.

49 The letter is endorsed by several organisations, including the Institute for Justice and Reconciliation, who have made it available via their website at: https://www.ijr.org.za/2019/02/08/ijr-endorses-letter-by-former-trc-commissioners/

http://www.ijr.org.za/news-and-events.php?nid=251&type=news

https://issafrica.s3.amazonaws.com/site/uploads/Mono111.pdf(accessed

https://issafrica.s3.amazonaws.com/site/uploads/Mono111.pdf(accessed

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http://www.702.co.za/features/139/trc

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of Inquiry to investigate the suppression of investigations and prosecutions of cases referred by the TRC to the National Prosecuting Authority. The letter points out that the ‘historic compromises’ made during our negotiations for a peaceful transition demand that justice be pursued for serious apartheid-era crimes, such as murder. The letter goes on to say that idea ‘lay at the heart of the compact struck with victims’ – there was an expectation that the state would pursue justice for victims in cases where no amnesty was granted. The letter points to evidence that there has been political interference in post-apartheid justice, resulting in virtually no prosecutions resulting from the list of several hundred cases conveyed from the TRC to the NPA. The few that have been brought followed intense work by human rights activists and family members. The letter concludes that the victims have been betrayed, and that they need information and apology regarding the failures. These views have been endorsed by the court judgment in an application for a stay of prosecution brought by former police officer Joao Rodrigues who is now charged with murder following the work by human rights activists and family members.50 The court found that there had indeed been political interference in investigating and prosecuting TRC cases and that the NPA was wrong to have allowed this.

The failures in the period after the TRC appears to be tarnishing the memory and spirit of the TRC. That discourse has arguably made restorative justice less palatable to many political and human rights activists of the last decade. This has contributed to a reduction of focus on restorative justice in policy making in South Africa, an issue to which we will return, below.

3.2 Restorative justice jurisprudence

South African superior courts have ruled on a number of matters involving restorative justice in the past ten years, with several high courts, the Supreme Court of Appeal and Constitutional Court all having handed down judgments that have contributed to a significant jurisprudence on the matter. Skelton has located this development in the national project of reconciliation and the work of the Truth and Reconciliation Commission as has been explored above and in the constitutional value of ubuntu.51 Core principles of ubuntu include ‘human sympathy, willingness to share and forgiveness’52 and ‘respect for human dignity of personhood with emphasis on the virtues of that dignity in social relationships and practices’.53 Cornell and Muvangua have pointed out that ubuntu should not be seen as simplistically communitarian; it also encompasses the humanness of each individual.54 Section 211 of the Constitution provides that the institution, status and role of traditional leadership are recognised subject to the Constitution. Customary law must now be regarded as equal with the common law and as an integral part of our law’ and ‘an independent source of norms within the legal system.’ In the well-known matter S v Makwanyane,55 the judgment of the Constitutional Court that abolished the death penalty, Sachs J underlined the importance of drawing on the best from all streams of justice in South Africa, in particular giving recognition to African law and legal thinking as a source of legal ideas, values and practice.56

50 See article on the Daily Maverick site and the court judgement Rodrigues v NDPP and Others51 n 37, 142. 52 A Mafeje ‘Africanity: a combative ideology’ (2000) 1 Codesria Bulletin 66–77.53 Y Mokgoro ‘Ubuntu and the law in South Africa’ (1998)4 Potchefstroom Law Journal 15–24. 54 D Cornell & N Muvangua Ubuntu and the law: African ideals and post-apartheid jurisprudence (2012) 5. See also T Bekker ‘The

re-emergence of ubuntu’ (2006) 21(2) South African Public Law 333. 55 1995(3) SA 391(CC).56 S v Makwanyane para 365.

http://mail.legalbrief.co.za/wf/click?upn=AkG5D8HzCEhZ-2BFUFBd0fKkW67UrIs85-2BTI1fsbz3tzDHRLi9awS6vF0v-2FNWTWkcHn1aEr82-2FnutmVqZCzbNPvaUTkoxadzgfdYt-2FI07Ps9l0N9Y3dmCPLC3dKWYJC8LhGW1YuVT431pZbkaphdL351OFkjtDgK2IoVGvO09oXjQ-3D_XANSKQloumCWiTKE7pV97staUUyQXwHzqg3ij5XldG1ZZLZBb4mHYuFCb-2B5dVclePzKsuKKDGTAbpe3-2BDIQSzwlD1ltR-2FfSMR-2FUNWANoD3D12LJsA3mqlWS-2FT3Z5vH5W3tQKsCPcuaY0YnUNaF8UojNyUAoA5xP2TCDwTxpwWwxUauhpfd6SRzKp9Dk8ZHnX1oqLJHrev2iiPZqwVz86KDh4pBPGkJfq9n8CUdzhtIU-3D

http://mail.legalbrief.co.za/wf/click?upn=AkG5D8HzCEhZ-2BFUFBd0fKmyaT5fNKI7ck5uWY5KTBDh9bL1Q-2BDRLQOBs0M-2BO-2BOqZHUMZm9Q2oVhE8-2Bm2ubxZ8H1i33VflRBgzr5FGju-2F-2BCKU3vuigODO-2F1gX1qXbcPwUqEJ2RgQsbOy8BMc6qEnpOA-3D-3D_XANSKQloumCWiTKE7pV97staUUyQXwHzqg3ij5XldG1ZZLZBb4mHYuFCb-2B5dVclekJLhVTgy-2F0luZZBXFFWnQvDUmM-2FwhVJXrXipGSQDTqOycf41AVbtWNety86Y3ekJrcNaDog2PFkOITZX2NYcvw74O-2BvJ1OXvNygjFUDoCcBA-2FOvgiYfitfVo8k-2Fp6SiynA8ZJpulVTy6CTxzR-2BYcRhV-2BCajF9mCks53LlSinuGM-3D

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According to Skelton,57 in the arena of criminal law,58 Constitutional Court judgments relating to restorative justice have emphasised the following aspects:

• the recognition of the community rather than the criminal justice agencies as the prime site of crime control

• the validity of community-based sentences that keep open the option of restoration in a way that imprisonment cannot do

• the importance of restitution or compensation to victims

• the centrality of the restoration of relationships

• While it is important for government to denounce crime and to communicate to the public that citizens’ rights are linked to obligations, such denunciation must be constitutionally constrained. The means used to effect the denunciation must be compatible with the values that society seeks to affirm.

However, some recent cases in the Supreme Court of Appeal, while paying lip service to restorative justice have failed to provide a proper justification in cases where they have declined to apply it. Van der Merwe and Skelton59 have pointed out that in S v Thabethe60 the Supreme Court of Appeal should have drawn on useful foreign jurisprudence from England and Wales which provides a rationale to allow victims mitigating views to ameliorate sentences – an approach which better accords with restorative justice. Batley61 has also suggested that the Thabethe judgement did not denounce the crime in a constitutionally appropriate way and in fact caused further harm. In the more recent case of Seedat v S62 the Supreme Court of Appeal has taken a similar approach to the Thabethe case. Lubaale has criticised the judgment, drawing comparisons with the approach of the courts in New Zealand.63

In the arena of civil law, Skelton64 has traced the influence of restorative justice and its principles in housing and eviction law,65 In this regard, the Constitutional Court emphasised the need for encounter, mediation or meaningful engagement between all concerned parties, including government, to forge a dignified model of sustainable reconciliation of competing interests. Participation is emphasised in the judgment, so that the occupiers can express their views, and thus emerge as individuals rather than a faceless group

57 n 37, 127–145. 58 The relevant judgments relating to criminal law are as follows: The criminal matters in which superior courts have ruled on restorative justice are: High Court: S v Shilubane 2008 (1) SACR 295 (T); S v Maluleke 2008 (1) SACR 49 (T); S v Thabethe 2009 (2) SACR 62 (T); Eastern

Cape: S v Saayman 2008 (1) SACR 393 (E). Supreme Court of Appeal: S v Thabethe 2009 (2) SACR 62(T); Seedat v S 2017 (1) SACR 141 (SCA). Constitutional Court: S v M (Centre for Child Law Amicus Curiae) 2007 (2) SACR 539 (CC).

59 A Van der Merwe & A Skelton, ‘Victim’s mitigating views in sentencing decisions: a comparative analysis’ (2015) 35 Oxford Journal of Legal Studies (2) 355–372.

60 S v Thabethe 2009 (2) SACR 62 (T).61 M Batley A call to agents of change in the justice system: guidelines in the use of restorative justice in sentencing for magistrates,

judges, prosecutors, probation officers (2014) 13 https://www.rjc.co.za/about/resources. 62 Seedat v S 2017 (1) SACR 141 (SCA).63 E C Lubaale ‘Concessions on custodial cases: learning from the New Zealand approach to restorative justice’ (2017) 61 SA

Crime Quarterly 31–39.64 n 37, 127–140. See also A Skelton ‘Civilizing civil justice’ in D Cornwell, J Blad & M Wright (eds) Civilising criminal justice (2013)

171–186. 65 The relevant judgments relating to meaningful engagement in housing and eviction law are as follows: Government of the

Republic of South Africa v Grootboom 2001 (1) SA 46 (CC)Port Elizabeth Municipality v Various Occupiers 2005 (1) SA 217 (CC); Occupiers of 51 Olivia Road & 197 Main Street v City of Johannesburg 2008 (3) SA 208 (CC); Residents of Joe Slovo Community, Western Cape v Thubelisha Homes 2010 (3) SA 454 (CC) ; Abahlali Basemjondolo Movement SA & Sibusiso Zikode v The Premier of the Province of Kwazulu-Natal 2010 BCLR 99 (CC). See also G Muller ‘Conceptualising ‘meaningful engagement’ as a deliberative democratic partnership’ (2011) 22(3) Stellenbosch Law Review 742; S Liebenberg ‘Engaging the paradoxes of the universal and particular in human rights adjudication: the possibilities and pitfalls of ‘meaningful engagement’ (2012) 12(1) African Human Rights Law Journal 1.

https://www.rjc.co.za/about/resources

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of poverty-stricken people. Reintegration into the community depends on achieving mutual respect for and a mutual commitment to one another Although the courts did not use the term ‘restorative justice’ in these cases, Sachs J, who was a judge of the Constitutional Court at the time when most of the judgments were written, has directly linked these cases to restorative justice in a chapter of his book Strange alchemy of life and law.66

Another strand of civil law featuring restorative justice – in these cases expressly so – are a number of case relating to damages for injury to personality.67 In one of the matters dealing with damage for injury to personality, the Court decided that the old common law remedy known as the amende honorable, which consisted of retraction and apology, had fallen into disuse over the years.68 The Court did not reinstate it, but instead developed the law in accordance with equitable principles. The Court explained that the reasons for developing the law in this way rested on respect for the dignity of others, which lies at the heart of the Constitution and the society we aspire to. Without that respect for each other’s dignity, our aim to create a better society may be impeded. The Court described dignity and respect as being foundational to South Africa’s young democracy. Reconciliation between people who opposed each other in the past is crucial to our constitutional endeavour. Skelton concluded that ‘the judgments thus far have developed a uniquely South African brand of restorative justice and have demonstrated originality and flexibility, particularly in the application of restorative justice to civil disputes’.69

3.3 Institutional arrangements for delivering restorative justice services

In Chapter 7 of Charting Progress (2006), under the heading Whose Business? The Respective Roles of State and Civil Society in Restorative Justice, a substantive analysis was made of the various aspects of this debate.

The chapter referred to international dimensions of the debate as well as local policy and implementation dynamics that were beginning to become evident. Internationally, the State tends to play one or more of four typical roles: enabler, resourcer, implementer or guarantor of the quality of services. Noting trends in several countries since the early 1990s, an optimistic view of the role that civil society organisations (CSOs) could play was outlined, particularly regarding the opportunity to take ownership of conflict (thus reversing the trend of the State and professionals to ‘steal’ conflict, in Christie’s famous article) and by creating opportunities for direct community involvement in justice processes and to strengthen civil

66 A Sachs Strange alchemy of life and law (2009) 63–112.67 The relevant judgments relating to injury to personality are as follows: Dikoko v Mokhatla 2006 (6) SA 235 (CC); Le Roux v Dey

2011 (3) SA 274(CC); The Citizen 1978 (Pty) Ltd and others v McBride (Johnstone and others, Amici Curiae) 2011 (4) SA 191 (CC). 68 See further R Midgley ‘Retraction, apology and right to reply’ (1995) 58 Tydskrif vir Hedendaagse Romeins Hol-landse Reg 288;

Y Mokgoro ‘Ubuntu and the law in South Africa’ (1998) 4 Potchefstroom Law Journal 15; A Mukheibir ‘Ubuntu and the amende honorable: a marriage between African values and medieval canon law’ (2007) 28(3) Obiter 583; M Swart ‘Sorry seems to be the hardest word: apology as a form of symbolic reparation’ (2008) 24 South African Journal of Human Rights 50; A Skelton ‘Face to face: Sachs on restorative justice’ (2010) 25(1) Southern African Public Law 94; D Milo ‘It’s hard for me to say I’m sorry’: apology as a remedy in the South African law of defamation’ (2012) 4(1) Journal of Media Law 11.

69 Skelton (n 47 ) 143;R Midgley ‘Retraction, apology and right to reply’ (1995) 58 Tydskrif vir Hedendaagse Romeins Hollandse Reg 288; D Milo ‘It’s hard for me to say I’m sorry’: apology as a remedy in the South African law of defamation’ (2012) 4(1) Journal of Media Law 11; Y Mokgoro ‘Ubuntu and the law in South Africa’ (1998) 4 Potchefstroom Law Journal 15;A Mukheibir ‘Ubuntu and the amende honorable: a marriage between African values and medieval canon law’ (2007) 28(3) Obiter 583; A Skelton ‘Face to face: Sachs on restorative justice’ (2010) 25(1) Southern African Public Law 94; M Swart ‘Sorry seems to be the hardest word: apology as a form of symbolic reparation’ (2008) (24) South African Journal of Human Rights 50.

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society and democracy. Sources such as Jantzi,70 and Kurki and Pranis71 were cited suggesting that this involvement would build social capital and nurture healthy informal social control. Citing local work in the area of governance by Shearing, Skelton and Batley also argued that the appropriate balance of the roles of the State and civil society was that the State should primarily be ‘steering’– providing direction and fulfilling the roles of enabler, resourcer and guarantor of practice, and that civil society should be the primary ‘rower’, the main implementer. They also noted the externally positive policy environment for CSOs and made it clear that, in theory at least, the South African context was more positive than it had hitherto been for civil society organisations. However, they also noted the warning of Russell and Swilling:

We must emphasise, however, that like so much else at the policy and legislative level in South Africa since 1994, it is only really the potential that has been created. There are already complications with the implementation of the framework, most of which have to do with a dearth of managerial and institutional capacity in the National Development Agency, the Department of Social Development, and the South African Revenue Service. Much will depend on how the new mechanisms are put to use. And, more importantly, whether they are sustainable in a neo-liberal macro-economic environment. Will they simply become mechanisms for co-opting NPOs?72

The chapter concluded on an optimistic note, based on recent discussions with the Department of Justice and Constitutional Development at the time: The stage does indeed seem set for a new era in state--NGO relations in the justice, safety and security sector. It is up to government officials and NGO staff to make this a reality.

These hopes have not been fulfilled. The discussions with the Department of Justice and Constitutional Development were taken a step further in 2009 when the Department initiated the drafting of a Restorative Justice National Policy Framework (RJNPF). While not a fully consultative process, significant work was done with key government, traditional leaders and civil society stakeholders in developing a shared frame of reference. Under the heading ‘Specific roles and responsibilities of the various stakeholders in restorative justice, the following statements were used as points of departure73:i. Department of Correctional Services (DCS) has the responsibility to provide restorative justice

processes and programmes in correctional facilities and for people under community corrections. ii. The Department of Justice and Constitutional Development (DOJ &CD) has the responsibility of

coordinating the implementation of Restorative Justice within the JCPS cluster.iii. The Office of the Chief Justice (OCJ) has the responsibility of promoting the use of restorative justice

by presiding officers.iv. The Department of Social Development (DSD) has the responsibility of ensuring the provision of

programmes and processes promoting the use of restorative justice at all levels of service delivery.v. The South African Police Service (SAPS) has to promote the utilisation of restorative justice in

appropriate cases.

70 V Jantzi ‘What is the role of the state in restorative justice programs?’ in H Zehr & B Toews (eds) Critical issues in restorative justice (2004) 189–201; V Jantzi ‘ Restorative justice in New Zealand: current practice, future possibilities’ August 2001 www.resotrative justice.org.

71 See L Kurki & K Pranis ‘Restorative justice as direct democracy and community building’ <www.restorative justice.org.72 B Russel & M Swilling ‘The size and scope of the non-profit sector in South Africa’ 2002 <www.ukzn.ac.za/ccs (accessed 29

January 2006).73 Department of Justice and Constitutional Development ‘Restorative justice national policy framework’ 2015 Revision

September 2015.

http://justice.org

http://www.ukzn.ac.za/ccs

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vi. The National Prosecution Authority has the responsibility to promote restorative justice approach in appropriate cases.

vii. The Department of Basic Education has the responsibility to promote restorative justice approaches in appropriate cases. COGTA Traditional Leaders are responsible for practicing restorative justice in their respective traditional courts in resolving disputes.

viii. Legal Aid South Africa has the responsibility to promote and encourage the use of restorative justice in appropriate cases.

ix. Civil Society Organisations (CSOs) are regarded as key partners for the delivery of restorative justice services. It is inherent in the concept of Restorative Justice that communities and community organisations are enabled to fulfil significant roles in service delivery.

While these points of departure are promising, in practice they have not translated into any implementation plan. At the time of finalizing this paper (December 2018) the RJNPF has never been signed off, despite the content of the document having been in process since 2009 and having been finalized by the stakeholder group in September 2015.

Some NGOs receive a subsidy for restorative justice services as part of their crime prevention programmes (such as competency development programmes for diversion and non-custodial sentences) funded by provincial departments of social development (see the section below). The Department of Correctional Services has to date not made any financial support available to organizations that deliver any programmes, including restorative justice processes.

The extremely limited scope of these services and their apparent decreasing availability is detailed below. Shortcomings include the near total lack of data, including about the services rendered by probation officers in provincial departments of social development. While the National Prosecuting Authority benefits from these services through reduced pressure on court rolls and the judiciary and Department of Justice benefit from the value added to the administration of justice, in terms of the above arrangements they do not bear the costs of this. Their position during the time of drafting the RJNPF was that they are not geared to fund CSO partners, which the DSD is. An analysis of the broader policy context within which this situation has evolved is dealt with in the section that follows.

3.4 The developmental state

The Russell and Swilling74 reference above to a neo-liberal macro-economic environment is a reference to the Growth, Employment and Redistribution Programme (GEAR), government’s macro-economic development framework that was introduced in 1996 ‘to stimulate faster economic growth which was required to provide resources to meet social investment needs. The Policy aligned with the social objectives of the Reconstruction and Development Programme but was also intended to reducing fiscal deficits, lowering inflation, maintaining exchange rate stability, decreasing barriers to trade and liberalizing capital flows’.75 Although the policy was successful in a number of ways, it was blamed by organised labour for increasing poverty, growing social inequality, retrenchments and high unemployment.76 It was replaced in 2005/06 by the Accelerated and Shared Growth Initiative of South Africa (ASGISA). ASGISA envisioned aimed to:

74 n 72. 75 SA history online http://www.sahistory.org.za/article/south-africa%E2%80%99s-key-economic-policies-changes-1994-2013

(accessed 28 June 2016).76 C Chagunda ‘South Africa as a development state’ 2007 Southern Africa catholic bishops’ conference: briefing paper 178 1.

http://www.sahistory.org.za/article/south-africa%E2%80%99s-key-economic-policies-changes-1994-2013

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Reduce poverty by 2010, and halve unemployment by 2014 from the 28% in 2004 to 14% by 2012; it also recognized that the policies implemented to address these issues needed to be at the forefront of economic policy decision making. ASGISA built on the foundations of the RDP’s goals of building a united, democratic, non-sexist and non-racial society, and a single integrated economy. ASGISA, though partly successful, was abandoned by the ruling party. While there was some reasonable level of success, the level of Implementation and future of the programme was uncertain as no official word came from the government regarding the fate of ASGISA.77

At the momentous national conference of the ANC in Polokwane in December 2007 at which Jacob Zuma was elected as its president, a formal policy proposal for a developmental state was tabled and accepted.78

Since then, the concept, its origins and nature have been the subject of considerable debate. At an initial level, the core aspects of a developmental state are (all emphases added):

• Following the pattern in Asian countries until the mid-1990s, ‘a situation in which a government, motivated by the desire for socio-economic development, intervenes in the operation of the free market’. ‘The success of the Asian developmental states lies in the fact that the state formed alliances with social groups in society that helped to achieve developmental goals.’79;

• A developmental state has been defined as a state where government is intimately involved in macro- and micro- economic planning in order to grow the economy. This and many other definitions of a developmental state place emphasis on the active role the state plays in guiding economic development and in using the resources of the country to meet the needs of the people.80

• An underlying factor for the early developmental states was the autonomy/independence of the state from social forces (corporate and civil society), which enabled the state to devise and implement long-term economic policies without being side-tracked by private interests (Leftwich, 1995, quoted by Gumede, 2011.81 Kuye and Ajam82 elaborate on this theme, stressing the notion of ‘the insulation of competent bureaucrats’ who have the requisite knowledge, capacity and incentives to take appropriate long-term economic decisions, rooted as they are in a ‘bureaucracy inculcated with values and ethics consistent with public service and stewardship of public resources rather than merely self-interest’

• Noting the higher levels of autonomous political power enjoyed by the Asian states than in the current democratic dispensation in South Africa, some scholars ‘argue that the notion of a developmental state has largely lost legitimacy, overtaken by a need to revitalize the relationship between the people and the state, in relation to the discourse on human development and democracy.’ Scholars in this stream introduce the notion of a capable state ...about reclaiming the position of the state at the centre of the discourse on democratic governance. It involves a transformative agenda that goes beyond the top-down technical fixes of the market model to a more contextual political economy perspective that recognizes the value of people in terms of analysing and addressing issues related to governance and human development.

77 SA history online http://www.sahistory.org.za/article/south-africa%E2%80%99s-key-economic-policies-changes-1994-2013 (accessed 28 June 2016).

78 C Chagunda ‘The ANC economic transformation policy discussion document’ 22 March 2007.79 Chagunda (n 78 ) 1& 2.80 M De Onis ‘Battle hymn of the modern minority: myth, poverty and policy analysis’ (1999) 37(2) Journal of Social Sciences in

N Ngamlana ‘Examining the notion of a developmental state making a case for a developmental capable state’ http://www.ngopulse.org/article/examining-notion-developmental-state-making-case-developmental-capable-state (accessed 27 June 2016).

81 V Gumede ‘South Africa as a developmental state in the making’ www.vusigumede.com (accessed 13 June 2016).82 JO Kuye & T Ajam ‘Leadership, governance and a dialogue in public sector finance’ (2012) African Journal of Public Affairs 53.

http://www.sahistory.org.za/article/south-africa%E2%80%99s-key-economic-policies-changes-1994-2013

http://www.ngopulse.org/article/examining-notion-developmental-state-making-case-developmental-capable-state


http://www.vusigumede.com

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The notion of a developmental state recognises the value of sound relations between citizens and the state institutions that would facilitate the interface between the two. In this context, a capable state provides enabling conditions for market and civil society to thrive. Both civil society and actors in the market are important stakeholders in the process of development.83 At a deeper level, Kuye and Ajam84 frame some key challenges for a democratic developmental state. An aspirant developmental state will have to discharge two broad roles effectively.

First is to create incentives for individuals to invest in their own capabilities through a distribution of basic rights and social support for education, healthcare etc. Second, in addition to achieving societal goals, developmental states will also act as the platforms for defining developmental goals and making hard social choices. Achieving this function ‘places democratic deliberation at the top of the list of capabilities that the development state must foster’85 . According, it is clear that an incipient developmental state would not only have to develop technical policy formulation and analysis capacity and administrative capacity, but also the political capacity for effective governance. This political capacity is often underplayed in the discussion of the developmental state yet it is pivotal to the state’s ability to mobilise a country and it’s many distinct interest groups around a common national development project in a legitimate, transparent and accountable manner.86

Furthermore, they suggest that any chance for a successful developmental state would seem to require strong leadership to negotiate the treacherous passage between the Scylla of state capture by powerful elites in the guise of developmental alliances (too little state autonomy) and the influence of technocrats disengaged from business, unions and broader civil society (insufficient embeddedness). The net result of this politically tempting pitfall would be a state which calls itself a developmental state but, contrary to its own rhetoric, ‘builds an institutional framework which is politically expedient but ducks the difficulties of delivering on capability expansion’.87

From this perspective, Kuye and Ajam list a number of internal conditions in the country that are seen as retarding the institutionalisation of a developmental state, including,88 an incompetent, unmotivated bureaucracy; lack of policy coherence and the absence of an overarching vision of development to align the ambitious policy frameworks devised by powerful departmental policy units in separate ‘silos’, largely disconnected from each other; and the fact that political repression of civil society and the labour movement is inconsistent with the Constitution. However there is little evidence of the governance ability to forge consensual social pacts. This has been confirmed by the High Level Panel Report on the Assessment of Key Legislation and the Acceleration of Fundamental Change, headed by Kgalema Motlanthe. As reported in Parliament89, ‘To realise the vision of the Constitution requires a capable and developmental state. The panel

83 ND Ngamlana ‘Examining the notion of developmental state making a case for a developmental capable state’ http://www.ngopulse.org/article/examining-notion-developmental-state-making-case-developmental-capable-state (accessed 13 June 2016).

84 n 82, 52.85 P Evans ‘Constructing the 21st century development state: potentialities and pitfalls’ In O Edigheji (ed) Constructing a

democratic development state in South Africa. Pretoria: Human Sciences Research Council (2010) 37–59.86 O Edigheji ‘Constructing a democratic developmental state in South Africa; potentials and challenges’ In O Edigheji (ed)

Constructing a democratic developmental state in South Africa (2010) 1–36.87 Evans (n 85) 51. 88 Evans (n 85 ) 55.89 M van der Merwe ‘Promised land: grim truth about ‘redistributed’ land failures told in parliament’ The Daily Maverick

https://www.dailymaverick.co.za/article/2018-03-15-promised-land-grim-truth-about-redistributed-land-failures-told-in-parliament/ (accessed 16 March 2018).



https://www.dailymaverick.co.za/article/2018-03-15-promised-land-grim-truth-about-redistributed-land-failures-told-in-parliament/

https://www.dailymaverick.co.za/article/2018-03-15-promised-land-grim-truth-about-redistributed-land-failures-told-in-parliament/

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has been confronted, from the testimony of the public and experts alike, with evidence of weaknesses on the part of government to execute policy and legislation.’

They conclude that the since 1994 the South African government has followed an ‘intermediate model’ with some neoliberal, some developmental state, some welfare state and some clientalist neopatrimonial state characteristics.90 Key ‘structural’ social justice issues remain unresolved because of the political in fighting in government, state capture and the fight for succession within the ruling party. There is still no social compact around job creation, despite unemployment being one or the greatest driver of poverty and inequality, nor around responding to the crisis of quality in the dysfunctional education system. While there has been some progress in respect of minimum wages, issues as reducing inequality through taxation of wealth, national health insurance, social security reform, and land reform all seem to have stalled.91

During the period 2016–2017, public discourse was largely pre-occupied by reports about allegations of state capture by individuals within political parties and in business. The reality of this has been confirmed in the post-Zuma period and with the revelations at Commission of inquiry into Allegations of State Capture, Corruption and Fraud in the public sector headed by Justice Zondo, the judicial commission of inquiry into the Public Investment Corporation, headed by Justice Mpati, and the judicial commission of inquiry into the tax affairs and governance, headed by Justice Nugent.

The apparent inadequacy of many public servants and the gap between them and the citizens they serve has continued to feature. The Review of the Welfare White Paper on Social Welfare revealed a breakdown in relationships between the Department of Social Development and non profit organisations, despite the Department’s public acknowledgement of the need for partnership in delivery of services.92 News reports about hostility to civil society have also been noted,93 such as the apparently adversarial stance taken by the National Department of Social Development on the matter of adoptions, in which it appears to intentionally discredit civil society practitioners while being thoroughly unrealistic about its own capacity. This is specifically reflective of some of the bureaucratic characteristics referred to by Kuye and Ajam.94

As the preceding section summarising the position about the role of civil society taken in Charting Progress (2006) reflects, part of reversing the centuries old tendency of the state to ‘steal’ the conflict of individuals and communities must be to afford maximum roles for civil society actors. Despite the optimistic stance taken in 2006, it seems clear that the trend since then has been more in line with the warning issued by Russell and Swilling that CSOs and the mechanisms created by government to engage with them have instead been used to co-opt them and indeed to eviscerate them.

90 Evans (n 85) 54.91 Personal correspondence with Tanya Ajam, February 2017.92 Department of Social Development Comprehensive Report on the Review of The While Paper on Social Welfare, 1997 (2016)

336 available at https://www.gov.za/sites/default/files/Comprehensive%20Report%20White%20Paper_.pdf (accessed 20 November 2018).

93 See http://www.dailymaverick.co.za/article/2016-06-15-clampdown-on-ngos-mooted-amid-regime-change-talk/#.V2Qm0qJWizk and ‘Growing gap between municipals, residents’ The Pretoria News 13 June 2016 http://www.dailymaverick.co.za/opinionista/2016-06-15-why-should-civil-society-organisations-incite-regime-change-in-a-transparent-democracy/#.V2Qo5qJWizk .

94 http://www.dailymaverick.co.za/article/2015-09-06-op-ed-the-great-power-struggle-over-adoption/#.V2gQ_6JWizk (accessed 7 September 2015) and Report of the review of the welfare white paper which comments on breakdown in relationships between government and NGOs https://www.gov.za/sites/default/files/Comprehensive%20Report%20White%20Paper_.pdf (accessed 20 November 2018).

https://www.gov.za/sites/default/files/Comprehensive%20Report%20White%20Paper_.pdf



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One further perspective confirms this. In 2008 a group of leaders from across different sectors met to address the issue of state competence in a constructive spirit. Their starting point was that citizens and leaders from all sectors need to actively engage with the state to improve delivery and enforce an accountable government. They developed a framework of four scenarios that they used to diagnose the state of affairs at that point as well as possible trajectories for the future, as follows95:

Engaged

Ineffective Effective

2020

2020

2020

Collaborative and enabling state. Engaged and active citizanry.

Interventionist and directive state. Dependent and compliant citizerry.

Corrupt and ineffective state.Distrusting and self-protective citizenry.

Disengaged

CHARACTER OF CIVIL SOCIETY

CAPACITY OF THE STATE

W A L K T O G E T H E R

W A L K B E H I N D

W A L K A P A R T

2009

The preferred scenario was obviously ‘walk together’. Given the centrality of the role of government, politically and administratively, in how justice is approached, the impact of the dynamics at stake here cannot be ignored. A decade has passed since this analysis, and it would appear that we are closer to the ‘walk apart’ trajectory than the ‘walk together’ one. At the same time however, these same dynamics and pressures also help to catalyse and shape an engaged and active citizenry. The choices that are made in this regard will be have a major impact on the path of restorative justice.

3.5 The National Development Plan

The National Development Plan (NDP) was drafted by the National Planning Commission (NPC) in 2011 and officially adopted by the ANC as policy in 2012. Ngamlana argues that the NDP highlights the state in which the public sector ought to be in order to facilitate the emergence of a capable state.The NDP seeks to set out a comprehensive vision for the country – it provides specific objectives across 13 focus areas underpinned by 119 specific actions96.The development of the discourse of the developmental state referred to above can be seen in characteristics of the plan highlighted by Kuye and Ajam.97

95 See www.dinokengscenarios.co.za. 96 See National development plan https://www.gov.za/issues/national-development-plan-2030.97 n 82, 58.

http://www.dinokengscenarios.co.za

https://www.gov.za/issues/national-development-plan-2030

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The Plan explicitly draws on the democratic development state model, premised on job creation through accelerated economic growth while de-racialising ownership and control in the economy, enhanced education quality, effective skills development and innovation coupled with building the capability required for a developmental state. The NDP is premised on a theory of change which suggests that strong leadership, effective government and active citizenry are key success factors for building the capacity to identify and act upon opportunities to transform the economy and society. The strategic application of this capability, anchored in an environment of social cohesion, has the potential to engender a virtuous cycle of development: increased employment and growth, reduced poverty and higher living standards.

The fraught public discourse referred to above notwithstanding, the discourse about the NDP has a different flavour. For example, speaking at a Roundtable about the NDP convened by the Helen Suzman Foundation on 4 November 2013, Minister Trevor Manuel, the chairperson of the NPC, spoke frankly about the very difficult environment in which implementation of the NDP would have to take place. The first challenge he referred to the breakdown of trust within SA society generally and specifically between NGOs and government. He also spoke of early childhood development as an example of implementation underway and referred approvingly to the fact that ‘NGOs and private providers of Early Childhood Development stand ready to work with government to advance this most important programme.’

In similar vein, in its chapter on building safe communities the NDP recognizes the need to move away from a narrow law enforcement approach to an integrated approach with active citizen involvement and co-responsibility.98 However, the document does not articulate clearly what this means. While this chapter appears to be one of the less contested of the NDP, there do not appear to have been any attempts by civil society actors to have expanded it meaningfully. A further example of this more constructive discourse regarding CSOs is reflected in the government’s Twenty Year Review of South Africa’s progress, released by the president on 11 March 2014. The Review ends its chapter on safety and security by stating clearly that ‘the criminal justice system, while having a critical role to play in addressing crime, cannot provide a safe and secure environment for all without other role-players both within and outside government contributing to addressing the causes of crime and violence’.99

The approach of the NDP appears to be an example of what Super has described as a neoliberal, managerialist approach.100 Such an approach is in the tradition of the National Crime Prevention Strategy, which Super describes as ‘apolitical and eclectic’.101 By its very nature, such an approach focuses on efficiency, rather than on contextual structural issues and their relation to crime. Hargovan has referred to the ‘bewildering and often contradictory developments in criminal justice. Mandatory sentencing and zero-tolerance policing are the most conspicuous of these, but not far behind is the rise of restorative justice’.102 Super also argues that it is inherent in this approach to combine apparently antithetical objectives, such as mandatory sentencing and the restorative prison103 for political ends to accomplish such ends as nation building.104

98 n 20, 356. 99 Department of performance monitoring and evaluation ‘The twenty year review: South Africa 1994–2014’ April 2014 146.100 G Super Governing through crime in South Africa: the politics of race and class in neoliberalising regimes (2013) 120–124.101 Super (n 101) 116.102 H Hargovan ‘Restorative justice: yesterday, today and tomorrow – making sense of shifting perspectives in crime control and

criminal justice in South Africa’ (2007) 20(1) Acta Criminologica 79. 103 While Super does not explain what she means by this term, it presumably refers to explicit references to restorative justice

objectives in regimes of correctional facilities within the context of a punitive discourse and legislation such as minimum sentencing.

104 n 100, 23–24.

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From a broad public sector perspective Kuye and Ajam propose that a new type of public leadership is required to be able to carry out the vision contained in the NDP. For the purposes of this monograph these are to recognise citizens as active shapers of their own developmental destinies and engage with them in a way that acknowledges this, not simply as a public relations exercise and to Identify appropriate spaces for private sector involvement and manage these contracts in a way that is beneficial for the public and creates long-term value.105

They regard public leadership and management in the South African public sector as still having a tendency towards centralised decision making and as having silos both within and among various public sector entities. To counter this, drawing on the work of Brooks,106 they hold that two specific types of leadership are required:107

• Collaborative leadership that is shared among different organisations which share a common aim and vision

• Collegiate leadership that is distributed throughout a single organisation where its constituent parts need to cooperate but have some element of managerial discretion.

These two aspects of leadership are presented in the following matrix (62):

Low High

SHARED LEADERSHIP

Hig

h

DIS

TRIB

UTE

D L

EAD

ERSH

IP

Collegiate not collaborativeOperates in own silo with narrowly defined aims and objectives – not collaborativeBut provides some authority to its teams or units therefore collegiate.Organisation locally structured, little joined up work, underpinned by behavioural and transactional approaches.

Collaborative and collegiateShared leadership driving shared vision aims and objectives – collaborative multi-agency and collective approach to collective leadership both across and within the constituent organisations.Also fully devolved authority and responsibility and decentralised structures.Vision-to-delivery focussed leadership, likely to display all aspects of leadership styles with a focus on transformational and adaptive styles.

Low

Not collegiate or collaborativeIndividual approach to determining aims and objectives, insensitive to the needs of other organisations – not collaborative.Not collegiate – little authority to teams and units within the organisation.Silos, bureaucratic focus leadershipunderpinned by individual trait approaches.

Collaborate but not collegiateShared leadership in taking forward shared visions, aims and objectives with partner organisations – collaborative.No distributed leadership in the organisation Joined up at executive level but less so lower down, more centrally determined and hierarchic, may take a multi-agency approach. Focus on high level aims and objectives but less emphasis on local integrated service delivery.Visionary focussed leadership which displays elements of transformational leadership at the higher level only.

105 Kuye & Ajam (n 82) 59–60.106 Kuye & Ajam (n 82 ) 61. See S Brooke 360 degree leadership in the public sector: a collective approach (2007).107 Kuye & Ajam (n 82) 61.

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This framework and these two specific leadership abilities have potential to guide both civil society and government officials regarding the future development of the implementation of restorative justice in South Africa.

At the present time, the NDP appears to be lost in the current political climate. Although the president appointed a new Planning Commission to oversee the plan in 2015 as part of the first in a series of five-year planning cycles that started in 2014–2019, key aspects about its content and implementation remain severely contested, particularly regarding the economy. Some commentators have suggested that although there are prospects to the contrary, the NDP is likely to remain mired in factional battles within the ANC, resulting in a lack of political will to make necessary choices for implementation, very little action, low growth and in the country sliding downwards on key indicators.108

3.6 The Social Welfare White Paper Review

A White Paper for Social Welfare was published in 1997. A review of the Paper was initiated in September 2013. The Comprehensive Report of the Review, 2016 notes that:

While the White Paper made a commitment to restorative justice, this approach was not clearly evident in the Committee’s review process.109 The Report also states the following under its section on victim empowerment that ‘There were repeated complaints about the weakness of inter-agency collaboration’.110 As the Report also notes, victim empowerment was not dealt with explicitly in the White Paper, although there was section dealing on women development that noted the impact of violence against women and rape, and this has been the central focus for victim empowerment.111

In an extended section dealing with partnerships, the report notes:

During the Committee’s review process, there were many comments on the relationship between DSD and NPOs. A small number of the comments were positive, but the majority were negative. Overall, NPOs experienced the relationship as a top-down one in which government imposed its views. NPOs said that the relationship had deteriorated over time. These perceptions contradicted the stated policy of DSD and White Paper, and the NDP’s emphasis on partnership.112

Generally, the macro perspective of the developmental state and NDP and the reflections that have surfaced in the White Paper Review confirm a feeling among NGO leaders that the attitude many government officials have towards them is deeply ambivalent. On the one hand there is a need to appear democratic and in touch with the responses of communities to social needs and issues. On the other hand, there is also pressure to demonstrate that the State is competent and is delivering services. This may explain the continued discourse affirming the importance of partnerships but at the same time engaging with NGOs in a manner that does not reflect this, and while continuing to make unrealistic pronouncements about the capacity of provincial social development departments. Framing this experience in the language of

108 J Malala We have now begun our descent: how to stop South Africa losing its way (2015).109 Ministerial committee, Department of Social Development ‘Summary report on the review of the white paper for social

welfare 1997’ September 2013–March 2016 156. http://www.dsd.gov.za/index2.php?option=com_docman&task=doc_view&gid=707&Itemid=3 (accessed 21 March 2018).

110 See n 110, 57.111 See n 110, 57.112 See n 110, 106.

http://www.dsd.gov.za/index2.php?option=com_docman&task=doc_view&gid=707&Itemid=3


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the analysis about the developmental state, this seems to confirm the inability of both senior and junior officials to provide collaborative and collegiate leadership, and that at a macro level, within the social development sector, the relations between the State and civil society are firmly entrenched in the ‘Walk Apart’, rather than moving towards the ‘Walk Together’ scenario.

3.7 National Policy Framework for Restorative Justice

Initiated in 2009 under the auspices of a national committee chaired by the Department of Justice and Constitutional Development, South Africa’s National Policy Framework for Restorative Justice (NPFRJ) has been through several drafts but at the time of writing has yet to be formally endorsed by the Minister. The status of the document is thus officially still only a draft, most recently amended in September 2015.

The framework follows a broad approach, seeking to connect criminal justice, civil law, family law and African traditional justice under the term. It uses the terms ‘restorative approaches’ to include initiatives such as non-custodial sentencing, ‘restorative practices’ to refer to conflict-resolution processes and restorative processes, and ‘interventions that contain restorative elements’ to refer to behavioural and cognitive change interventions. A unique feature of the document is the reflection of idioms, sayings and practices from most of the country’s indigenous languages that reflect the restorative nature of African customary justice.

In an acknowledgement at the start of the document by the Director General of the Department, the aim of the document is clearly stated as:

This National Policy Framework is intended to provide the basis for shared understanding about restorative justice in South Africa, building on the legacy of the Truth and Reconciliation Commission and a variety of initiatives since 1994. It also spells out the roles and responsibilities for all the departments who make up the JCPS113 cluster, traditional leaders and civil society organisations in implementing restorative justice. In doing this, it provides a foundation for the increased implementation of restorative justice.

The Department of Justice and Constitutional Development is the lead department in implementing this policy. In this regard we therefore call on all officials in the JCPS cluster, traditional leadership and civil society organisations working in this field to help make this framework a living document in order to realise the stated noble objectives.114

Although this document with its ‘noble objectives’ has been referred to as ‘one of the most thorough and clear governmental statements on restorative justice115 the fact that is remains a draft after seven years is deeply concerning. The document was initially driven by the Chief Directorate for Vulnerable Groups and in October 2015 was transferred to the policy unit. There does not appear to have been any further movement since then.

113 Justice, crime prevention and social cluster.114 ‘The draft national policy framework on restorative justice’ (2015) 6–7. (copy on record with authors).115 T Gavrielides & G Loseby The wind of change: comparative lessons from restorative justice in South Africa and the United

Kingdom (2014) 30.

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3.8 Recent Policy Making

In Charting Progress, we demonstrated that restorative justice had been high on the agenda between 1994 and 2006. An assessment of the policy making since then shows that the role of restorative justice is not as dominant as it was in the previous period of review. Two examples demonstrate some of the difficulties:

3.8.1 African Traditional justice and the Traditional Courts Bill

Throughout this monograph there are a number of references to the contribution that African traditional justice and practices have made to restorative justice and the potential this heritage holds for future restorative justice practice in South Africa. This view needs to be understood in relation to the Traditional Courts Bill, 2017, which was introduced into parliament shortly before elections in 2019, and at the time of writing is before the National Council of Provinces.

This Bill has been highly contentious, as has its forerunner, introduced in 2008 and withdrawn in 2011. The Bill needs to be understood within a longer historical context that recognizes how the institution of traditional leadership was co-opted by both colonial administrations and the apartheid government. Some of the main controversies at present include disputes about the succession of leaders, claims to land, business deals with mining companies without the consent of communities and the extent of the powers of traditional leaders, given that the Bill appears to vest executive, legislative and judicial authority in the person of the traditional leader116.

Wicomb, of the Legal Resources Centre, has pointed out that the adoption of South Africa’s Constitution marked the first time that indigenous customary law was recognised as a source of law equal to its common law and even statutory law counterparts. This recognition of customary law as an independent system of norms to be understood and interpreted within its own context and, in particular, the context of how it is lived and applied by the community without specific reference to traditional leadership has developed significantly over the past twenty five years. It is ironic that at the same time, there has been a political emphasis on the position and role of leaders.117

The current Traditional Courts Bill defines restorative justice as an approach to the resolution of disputes that involves all parties to a dispute, the families concerned and community members in order to collectively identify and address harms, needs and obligations by accepting responsibility, not only in order to effect restitution, but also to take measures to prevent a recurrence and to promote reconciliation. The list of orders that can be made confirm the principles of restitution (by way of direct compensation or indirectly by way of service to the victim) and apology. However, despite the stated consensual nature of traditional justice, the Bill now places a traditional leader in a decision-making (or autocratic) position.118

116 See T Motaung ‘Of traditional leadership and democracy’ City Press 28 February 2019 https://city-press.news24.com/Voices/how-history-democracy-has-shaped-the-institution-of-chieftaincy-20190228 (accessed 23 March 2019) & A van Dalsen ‘The Traditional Courts Bill – a problematic piece of legislation’ https://hsf.org.za/publications/hsf-briefs/the-traditional-courts-bill-a-problematic-piece-of-legislation (accessed 10 April 2019).

117 M Thamm ‘A royal conundrum: King Dalindyebo and the traditional leaders hot potato ’ 2016 https://www.dailymaverick.co.za/article/2016-01-13-a-royal-conundrum-king-dalindyebo-and-the-traditional-leaders-hot-potato/ (accessed 16 January 2016).

118 A van Dalsen ‘The Traditional Courts Bill – a problematic piece of legislation’ https://hsf.org.za/publications/hsf-briefs/the-traditional-courts-bill-a-problematic-piece-of-legislation (accessed 10 April 2019).

https://city-press.news24.com/Voices/how-history-democracy-has-shaped-the-institution-of-chieftaincy-20190228

https://city-press.news24.com/Voices/how-history-democracy-has-shaped-the-institution-of-chieftaincy-20190228

https://hsf.org.za/publications/hsf-briefs/the-traditional-courts-bill-a-problematic-piece-of-legislation


https://www.dailymaverick.co.za/article/2016-01-13-a-royal-conundrum-king-dalindyebo-and-the-traditional-leaders-hot-potato/

https://www.dailymaverick.co.za/article/2016-01-13-a-royal-conundrum-king-dalindyebo-and-the-traditional-leaders-hot-potato/



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This intense focus on the position of traditional leaders obscures what the system of customary law has to offer the field of restorative practice and the administration of justice more generally and suggests that South Africa may be at risk of losing the potential it has of harnessing this heritage.

3.8.2 Restorative Justice and Hate Crimes

Over the past several years, a number of countries have grappled with the reality of hate crimes and how best to respond. Hate crimes are defined based on two factors. The first is that the act is considered a crime under existing criminal law (such as arson, damage to property, assault, rape or murder). The second is that the act is motivated in whole or in part by prejudice or hatred regarding an aspect of the victim’s identity (such as their race, nationality, religion, sexual orientation).

Hate crimes are not simply crimes committed against vulnerable groups. Instead hate crimes are crimes committed against individuals because of a prejudice the perpetrator holds against an entire group of people, but directed at an available victim. They serve as a message of intolerance and intimidate and harass not just the victim, but whole communities. As a result, they undermine social cohesion and the creation of a society based on equality.

The Hate Crimes Working Group (HCWG) has been lobbying for legislation to address the issue. Proponents of legislation point out that such legislation also has symbolic value: it sends a clear message to society that such crimes are not tolerated. Hate crimes legislation that includes robust duties for stakeholders and is fully implemented will be a powerful tool to combat these crimes. It will also assist in generating information about the nature and prevalence of this type of crime, which would inform the development of appropriate tools.119

The Department of Justice and Constitutional Development published the Prevention and Combating of Hate Crimes and Hate Speech Bill. While an early informal draft had featured the concepts of restitution for victims and diversion options for offenders such as mediation, counselling and treatment prominently, these provisions were all removed from the Bill. This would appear to be in line with comments made by the Deputy-minister of Justice, John Jeffery at the Annual General Meeting of the HCWG on 30 March 2016. His argument was that as these concepts have been used in the Child Justice Act, 2008, they serve as mitigating mechanisms to the usual legal responses as this is appropriate when dealing with children. However, the main purpose of hate crime legislation is to introduce aggravating mechanisms to existing responses, and restorative justice provisions would be at odds with this.

In contrast to this view, recent research conducted by Walters, highlights two fundamental criticisms about the legislative approach that has been documented since at least 1998:120

• The enhancement of punishment and additional criminalization of hate-motivated perpetrators does little to repair the harms caused by incidents of hate

• Enhancing the penalties of offenders is unlikely to effectively challenge the underlying causes of prejudice, at least at an individual level (emphasis in original).

119 https://internationalhatestudies.com/hate-crime-restorative-justice-exploring-causes-repairing-harms/ 120 M A Walters Hate crimes and restorative justice: exploring cases, repairing harms (2014) xxii.

https://internationalhatestudies.com/hate-crime-restorative-justice-exploring-causes-repairing-harms/

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Walters’ research focuses on two mediation projects in London that dealt with hate crimes. It found that the majority of complainant victims interviewed (17/23) were of the opinion that the mediation process directly improved their emotional well-being and that levels of anger, anxiety and fear were reduced directly after the mediation process.

The four most common reasons given for this effect were:

• Participants felt they could play an active part in their own conflict resolution

• Participants were able to explain to the perpetrator and others the harms they had experienced

• Participants felt supported by mediators who listened to their version of events

• The perpetrator signed an agreement promising to desist from further hate incidents.

The study also found that 11 out of 19 separate cases of ongoing hate crime incidents researched in the Southwark project ceased directly after the mediation process had taken place. A further 6 cases stopped after the community mediator included other agencies within the mediation process. These included schools, social services, community police officers and housing officers.

The HCWG has indicated that once the Bill was introduced to Parliament, it would explore the value that restorative justice might add as part of the public debate about the matter. The Bill has been introduced to Parliament, and during a discussion in the Parliamentary Portfolio Committee on Justice, Steve Swart, member of parliament for the African Christian Democratic Party expressed concern about the exclusion of the principle of restorative justice. He said that it was a principle that he had advocated for many years in the Committee. He did not understand why it would not be applicable for hate crimes and hate speech.121

3.9 Academic discourse

A recent literature search for local restorative justice publications revealed a range of academic and professional writing that had been published in South Africa since 2006.122 While not a large number in the

121 Parliamentary Monitoring Group Prevention of Hate Crimes and Hate Speech Bill and international Crimes Bill: Briefing with Minister and Deputy Minister, June 2018. Available at https://pmg.org.za.

122 Examples include L Vermaak ‘Crime and punishment in present-day South Africa: a cryptic look at restorative justice’ (2009) 22 Advocate; G Super Governing through Crime in South Africa: the politics of race and class in Neoliberalizing Regimes (2013); G Super ‘Twenty years of punishment (and democracy) in South Africa: the pitfalls of governing crime through the community’ (2014) 48 SA Crime Quarterly ; Unpublished: L van Wyk ‘Restorative justice in South Africa: an attitude survey among legal professionals’ unpublished thesis, University of Free State, 2015. H Hargovan ‘Violence, victimisation and parole: reconciling restorative justice and victim participation’ (2015) SA Crime Quarterly; A Skelton & M Batley ‘Restorative justice: a contemporary South African review’ (2008) 21 (3) Acta Criminoligica 37. A Van der Merwe ‘A new role for crime victims? An evaluation of restorative justice procedures in the Child Justice Act 2008’ (2013) De Jure 43.T Gxubane ‘Multi-disciplinary practice guidelines for the management of youth sex offenders within a restorative justice approach in South Africa’ (2015) 3(1) Restorative Justice 49. C Corliss ‘Truth commissions and the limits of restorative justice: lessons learned in South Africa’s Cradock four case’ (2013) 21 (2) International Law Review 273. TR Samara ‘Development, social justice and global governance: challenges to implementing restorative and criminal justice reform in South Africa’ (2007) Acta Juridica 113. K Landman ‘Exploring the impact of gated communities on social and special justice and its relation to restorative justice and peacebuilding in South Africa’ (2007) Acta Juridica 134. C Bezuidenhout ‘Restorative justice with an explicit rehabilitative ethos: Is this the resolve to change criminality?’ (2007)20(2) Act Criminologica 43. G Bradshaw ‘Truth, reconciliation and resolution in South Africa’ (2002) 32(1) Africanus 77. D Foster ‘The Truth and Reconciliation Commission and understanding perpetrators’ (2000) 30(1) South African Journal of Psychology 2. T Gxubane ‘Multi-disciplinary practice guidelines for management of youth sex offenders within restorative justice approach in South Africa’(2015) 3(1) Restorative Justice: An International Journal 49. A Jones ‘The settler problem ‘ubuntu and South Africa’s Truth and Reconciliation Commission’ (2014) 3(1&2) Ubuntu: Journal of Conflict and Social Transformation 7. A Krog ‘The Truth and Reconciliation Commission – A national

https://pmg.org.za/

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context of all articles published about restorative justice worldwide, it nonetheless reflects a significant level of engagement by academics, particularly in the fields of criminology and law. Restorative justice features in the Commentary on the Criminal Procedure Act123, a primary resource for criminal law academics and practitioners. There is a detailed discussion about the impact of restorative justice on sentencing. A number of students have written dissertations and theses on restorative justice themes, but no Universities have introduced full courses on restorative justice into their curricula (although many teach it within a broader subject such as criminal law, criminal procedure or criminology). A conference under the theme ‘Lawyers as Peacemakers’ organised by the Institute for Dispute Resolution in Africa of the University on South Africa in October 2015 that looked at themes such as therapeutic jurisprudence, lawyers as healers and peacemakers and collaborative law. The conference also sought to articulate a distinctly African jurisprudential perspective, quoting Idowu:124

African jurisprudence is essentially therapeutic since law is not only taken as an active social force but most importantly as an instrument for the enhancement and/or restoration of social cohesion and equilibrium. African jurisprudence is essentially therapeutic since it removes the conception of law away from the harsh realities of Austinian jurisprudence or positivist jurisprudence and, instead, emphasises the nature of law in terms of reconciliation and restorative justice. In other words, ‘that peace-keeping and the maintenance of social equilibrium’ stand at the heart of African jurisprudence.

ritual?’(1998) 26(1) Missionalia: South African Journal of Mission Studies 5. F Mangena ‘Restorative justice’s deep roots in Africa’(2015) 34 (1) South Africa Journal of Philosophy 1. M Oelofse and A Oothuysen ‘The knowledge and perceptions of history students of South Africa’s Truth and Reconciliation Commission (TRC)’ (2014)10(1) TD The Journal of Transdisciplinary Research in South Africa 253. A Skelton ‘The South African constitutional court’s restorative justice jurisprudence’(2013) 1(1) Restorative Justice: An International Journal 122. WFM Luyt and TD Matshaba ‘The application of restorative justice amongst sentenced offenders in an eastern cape correctional centre: A South African case study’ (2014) 27(2) Acta Criminologica 82. S Wilson ‘The myth of restorative justice: Truth, reconciliation and the ethics of amnesty’ (2001) 17 South African Journal of Human Rights 531.

123 E Du Toit et al Commentary on the Criminal Procedure Act (2009) 28–10A to 10–B1.124 W Idowu ‘Against the sceptical argument and the absence of thesis: African jurisprudence and the challenge of positivist

historiography’ (2006) 6 The Journal of Philosophy, Science and Law 42.

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GENERAL PRACTICE CURRENTLY44.1 Methodology

Desk top research was conducted for this section of the study to develop a sense of the range and scope of actual implementation of restorative justice. Details were confirmed through email correspondence and telephone conversations.

4.2 Some Important distinctions and focus

In pursuing its aim of providing a basis for shared understanding about restorative justice, the National Policy Framework for Restorative Justice (NPFRJ) draws and elaborates on the distinctions made in the UN Handbook on Restorative Justice Programmes, 2006, that include:

• Restorative justice as an approach to justice

• Restorative justice processes that bring together everyone who has been affected by a crime incident to participate in its resolution

• The integration of restorative justice concepts into areas of practice such as probation, diversion competency development programmes, offender reintegration work, victim empow0erment work and sentencing.

In this section dealing with direct practice, this paper will focus mainly on restorative justice processes. It is worth noting in this regard the status of the relationship between restorative justice processes and the alternative/appropriate dispute resolution field, particularly mediation. Early restorative justice practice manuals125 either drew a clear distinction between the two or did not use the term mediation at all. It appears that they were seeking to emphasize the difference between the fields and wanting to be sensitive to the need to allow parties affected by crime and conflict to be central in developing a response to this and to the concerns about the power imbalances inherent in encounters between victims and offenders.126 More recently, while the tendency for conflict resolution to be ‘captured’ by professionals remains, there appears to be considerable convergence between the fields of mediation (particularly facilitative, transformative, therapeutic and narrative mediation as opposed to settlement and evaluative mediation), and restorative justice. Especially in cases where parties know each other, once the injustice and specific incident have been acknowledged, a range of underlying factors may come to the fore that require an interest-based model of mediation.127 This understanding is important when noting the various contexts in which restorative justice is now being applied. The distinctions between mediation and restorative justice can be reflected as follows:128

125 L Stutzman Amstutz & H Zehr Victim offender conferencing in Pennsylvania’s juvenile justice system (1998) and H Bowen & J Boyack January ‘New Zealand restorative justice practice manual’ 2000 www.restorativejustice.org.nz (accessed 25 April 2007).

126 Private correspondence with Carl Stauffer on 11 May 2016.127 Thanks to George Lai Thom for this perspective and practice development.128 Adapted from http://emu.edu/now/restorative-justice/2010/08/13/restorative-justice-mediation-and-adr by Howard Zehr.

http://www.restorativejustice.org.nz

http://emu.edu/now/restorative-justice/2010/08/13/restorative-justice-mediation-and-adr

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RESTORATIVE JUSTICE MEDIATION

Moral dimensions Explicitly principle value driven

Acknowledges wrong doing

Creates space for acceptance of responsibility

Parties are morally equally

Language neutral

Mediator ‘balanced partiality’ Neutral, impartial

Rational problem solving Rooted in storytelling, expression of emotion, can also deal with rational problem solving

Often centred on rationally identified interests

4.3 Criminal justice: Pre-trial (diversion)

4.3.1 Children

At the time of writing Charting Progress (2006), the Child Justice Bill had been introduced to the public domain and was being actively debated in a number of sectors. After the difficulties of establishing diversion in the early 1990s, it seemed that the concept and practice was becoming firmly established. It was noted in Charting Progress,129 that the levels of activity fall far short of the targets set for once the Child Justice Bill has been enacted and implemented. It is worth noting that, during the financial year April 2004, to March 2005, 18 523 cases of children in trouble with the law were diverted. The Inter-sectoral Committee on Child Justice estimated an increase to 74 229 diversions per year by the third year of implementation.

The Child Justice Act130 was enacted in 2008 and came into operation on 1 April 2010. Restorative justice is stated as one of the objectives of the Act and diversion is a central feature. Explicit provision is made for family group conferencing and victim offender mediation at both a diversion level and as part of sentencing procedures131. Restorative justice as an approach, diversion and restorative processes are thus now part of statutory law for children.

However, implementation and diversion practice has not developed as foreseen. According to the National Prosecuting Authority132 the total number of children being diverted is as follows:

129 A Skelton & M Batley Charting progress, mapping the future: restorative justice in South Africa (2006) 116.130 75 of 2008.131 See Sections 53(7), 61, 62 and 73. 132 Annual reports and correspondence with Adv Marelize Potgieter Snr State Advocate NPS OPS 6 February 2019. NPS OPS only

started to capture separately the number of children diverted from 2007/08 as part of the court performance dataset

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4

5

6

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PRA

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FIN

AN

CIA

L YE

ARS

2007

/ 0

820

08

/ 09

2009

/ 1

020

10

/ 11

2011

/ 1

220

12

/ 13

2013

/ 1

420

14

/ 15

2015

/ 1

620

16

/ 17

2017

/ 1

820

18

/ 19

APR

–D

EC

PRO

JEC

TED

CH

AN

GE

OV

ER P

REV

YE

AR

PRO

JEC

TED

CH

AN

GE

OV

ER

PERI

OD

20

10/1

1–18

/19

Div

ersio

ns o

f ch

ildre

n ito

CJ

A (b

efor

e en

rollm

ent)

00

07

869

6 42

26

605

6 35

25

882

5 52

85

790

5 04

93

329

−12,

1%−4

3,6%

DC

00

07

750

6 25

66

401

6 20

85

785

5 46

65

574

5 02

53

305

−12,

3%−4

3,1%

RC0

00

119

166

204

144

9762

216

2424

33,3

%−7

3,1%

Div

ersio

ns

of c

hild

ren

ito C

JA (a

fter

enro

llmen

t)

18 7

9317

635

16 1

738

593

5 23

64

815

4 45

73

331

2 59

31

883

1 72

01

141

−11,

6%−8

2,3%

DC

18 4

2417

324

15 9

098

395

5 17

94

725

4 38

53

263

2 55

31

837

1 67

31

099

−12,

4%−8

2,5%

RC36

931

126

419

857

9072

6840

4647

4219

,1%

−71,

7%

TOTA

L Ch

ildre

n di

vert

ed

18 7

9317

635

16 1

7316

462

11 6

5811

420

10 8

099

213

8 12

17

673

6 76

94

470

−12,

0%−6

3,8%

DC

18 4

2417

324

15 9

0916

145

11 4

3511

126

10 5

939

048

8 01

97

411

6 69

84

404

−12,

3%−6

3,6%

RC36

931

126

431

722

329

421

616

510

226

271

6623

,9%

−72,

2%

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The reasons for this decline and a more recent levelling off, as opposed to the anticipated increase are not fully understood but it is generally accepted that at least part of the decrease may reflect the unwillingness of many police officials to follow the requirements of the Act.133 Similarly, the NPA assessment in its Annual Report 2014–2015 (41) is:134

This decline is not necessarily positive as an increase in the number of diversions was an important step in achieving one of the goals of the Act. The decline does not necessarily suggest that there are fewer numbers of children in conflict with the law. However, different factors as received from our nodal points can be drawn from the decline:

• That some of the children do not qualify for the requirements of diversions as provided for in section 52 of the CJA e.g. they do not acknowledge responsibility etc.

• That some commit serious offences where there are no exceptional circumstances to allow the DPP to authorise diversion

• There is generally a slight decrease in matters diverted due to the limited number of accredited diversion programmes and the decrease of service providers – this on its own will have a negative impact on the number of children being diverted

• During this financial year we have also noted that children do not comply with diversion orders and if the non-compliance certificate has been submitted to the clerk of the court the child may be referred to the child justice court for prosecution. One of the reasons of non-compliance is that some children do not have good support systems at home to sustain them during the diversion programmes.

4.3.2 Details from the diversion register maintained by the Department of Social Development

Section 60(1) of the Child Justice Act, 1978 requires the Department of Social Development to maintain a register of children in respect of whom a diversion order has been made. The register must include – (a) the personal details of each child; (b) details of the offence in relation to which the diversion order was made; (c) the diversion option or options as described in the diversion order; and (d) particulars of the child’s compliance with the diversion order.

According to Mr Steven Maselesele135 of the Department provision is made in their statistical system to reflect all the above data. Since the Act was implemented in 2010 the focus has been on ensuring consistency in numbers between the different departments and in trying to understand the reasons for the decrease in the total number of diversions. While details of the diversion options described in orders are noted (in compliance with subsection (c)), these numbers have not been collated. There is thus no provincial or national breakdown of the kinds of programmes to which children are referred, meaning that it is not known how many family group conferences or victim offender mediations are being conducted in terms of the Act.

133 Ministerial committee, Department of Social Development ‘Summary report on the review of the white paper for social welfare 1997’ September 2013 to March 2016 (n 103) 156 http://www.dsd.gov.za/index2.php?option=com_docman&task=doc_view&gid=707&Itemid=3 (accessed 13 August 2016).

134 https://www.npa.gov.za/sites/default/files/annual-reports/Annual%20Report%202014%20-%202015.pdf (accessed 24 November 2015

135 Personal communication 25 May 2016.



https://www.npa.gov.za/sites/default/files/annual-reports/Annual%20Report%202014%20-%202015.pdf

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4.3.3 Adults

As diversion became established practice in dealing with children, it began to be expanded to adults. A number of CSO role-players established projects at this level from approximately 1999 onwards, with several coming together in the Restorative Justice Initiative Southern Africa (RJISA).136 Specific projects referred to in Charting Progress (2006) included:

• Alexandra Community Law Clinic, Johannesburg

• Conquest for Life, Westbury, Johannesburg

• Khulisa, Johannesburg and later in KZN and North West

• The Restorative Justice Centre, Pretoria

• Nicro, nationally

• Phoenix Zululand, KwaZulu Natal

These organisations ran conferencing and mediation projects of various sizes, essentially all demonstrating that this was a meaningful and viable way of responding to and possibly disposing of a crime incident.

4.3.4 Restorative justice processes offered by Khulisa137

Khulisa Social Solutions delivers services across a range of focus areas. It has adopted a systemic approach to community development which aims to address the challenges faced by communities in a more holistic and comprehensive manner. It aims to identify the systemic challenges in the society and community, and to overcome fragmentation of policy, systems and delivery through the mobilisation of local capacity138.

The main restorative justice based programme that is offered is the Justice and Reconciliation Project (JARP), which began in 2007 in Phoenix, KwaZulu-Natal and which dealt with over 3 000 cases in the period March 2010 – April 2012, at a pre-trial level. This led to the establishment of JARP in five further sites funded by the European Union. JARP is a ‘creative, pre-trial, community based restorative justice initiative for dealing with crime, wrongdoing and conflict through a direct dialogue between victims and offenders, their families and their support networks’.

According to an independent evaluation that was published in August 2012, during March 2010 – April 2012, the European Union funded JARP dealt with 3 930 cases. Out of these, 2 387 were youth diversion cases.139 The work in these six sites included engaging with traditional leaders and training sixty six, with the intention of strengthening their work of conflict resolution in the community and creating a basis for sustainability. Key features of JARP are the use of a multi-method approach (using one to one mediation, conferencing and peace-making circles, and combining them, as appropriate), the use of carefully selected and trained community members as mediators rather than professionals, active building of relationships with the criminal justice system as well as with the community, and a well-developed monitoring and

136 RJISA functioned from 1999 to 2010 after which it fell into disuse when unable to acquire further funding. It was funded by the Open Society Foundation and the Royal Danish Development Aid (DANIDA). Apart from arranging training for a number of organisations and practitioners it also oversaw the development of a set of Practice Guidelines drafted by Frank & Skelton, 2007 www.rjc.co.za.

137 Based on detailed information provided by George Lai Thom, National restorative justice coordinator for Khulisa Social Solutions. See also Gavrielides & Loseby (2014).

138 http://khulisa.org.za (accessed 13 May 2017).139 H Hargovan ‘A balancing act for the prosecutor: restorative justice, criminal justice and access to justice’ (2012) 42 SA Crime

Quarterly 14.

http://www.rjc.co.za

http://khulisa.org.za

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evaluation system. JARP was also extended to Mitchell’s Plain in the Western Cape (October 2012 – May 2013), as well as Orange Farm in Gauteng (2011–2013), with 170 and 200 cases being dealt with at each site respectively. Both these sites received referrals from local prosecutors and police as well as directly from the community and other NGOs. About 60% of the cases involved domestic violence. Funding ceased at the end of these periods and has since not been found to continue the work, leading to suspension of the service.

In addition to JARP, Khulisa’s restorative justice work has included a focus on offenders incarcerated for serious crimes who are in the process of being released from correctional facilities. Since 2004 work has been done in 11 correctional facilities in four provinces. A similar multi-method approach to JARP was used. Each case could result in one or more different processes involving different participants, such as victim’s family and offender’s family; offender and offender’s family; offender and victim’s family; community and offender’s family; community and offender’s family and offender, etc. Communication aids such as video, audio cassette and letters are widely used. Numerous separate meetings are conducted where needed. The typology used according to Umbreit’s typology can be classed as Empowerment (Empowerment-Narrative-Therapeutic).140 Mediators worked in teams; at times as many as four to a case.

A fully structured schools mediation programme was implemented in Orange Farm 2013–2014. Two male mediators who were part of the JARP project referred to above were trained to mediate in schools. Assisted by a coordinator the two mediators concluded approximately 600 cases successfully, accessing cases in 9 primary and secondary schools.

Type of cases included:

• Minor assault

• Thefts

• Conflict over dating partners

• Sexual harassment

• Pregnancy

• Bullying

• Truancy

Khulisa also used the expertise of its national restorative justice co-ordinator to deal with internal conflict in the organisation and conflict with other organisations. The coordinator also assisted the Restorative Justice Centre in developing its workplace mediation project.

Khulisa’s national restorative justice co-ordinator has led some exploratory research in the wake of xenophobic violence in the country in 2009 and 2015 with a view to undertaking some dialogue and peacebuilding. One large peace-making circle that included community members and Somali Shopkeepers in Atteridgeville was held that was very productive. It cleared up misunderstandings and created empathy between the shopkeepers and the community members present, and a commitment to work together to combat xenophobia. It did not involve any direct any offenders or lead to any substantive intervention.

All the above work was supplemented with extensive training of community members, mediators and staff from the criminal justice system.

140 M Umbreit et al Facing violence. The path of restorative justice and dialogue (2003) 323.

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4.3.5 Restorative justice processes offered by Nicro

Founded in September 1910, NICRO is one of the largest, most enduring South African non-profit organisations. The organisation, which specialises in social crime prevention and offender reintegration, boasts a rich, unparalleled history in human rights, juvenile justice and innovative criminal justice reform. NICRO renders life changing services to approximately 24 955 direct beneficiaries and touches the lives of between 40 000 and 50 000 South Africans each year141. The organisation regards its work as being grounded in the approach of restorative justice as an alternative paradigm through which to look at crime and conflict.142

NICRO pioneered the introduction of restorative justice and diversion to the country, when together with Lawyers for Human Rights the organisation piloted the first juvenile justice programme, in the early 1990’s. In those years NICRO was diverting over 30 000 young people away from the criminal justice system. The organisation’s 2017/18 Annual Report and data obtained from the senior management of NICRO reflects the following statistics:

NATIONALLY 2017/2018

Restorative group conferences

Diversion (pre-trial)

Non-Custodial Sentencing

Offender Reintegration

Schools Adult diversion

1 571 3 778 590 617 1 042 18 928

NICRO uses Restorative justice processes across its intervention areas-pre-trial, as a sentencing option, in prison, and at schools. It has attempted to continue work at a sentencing stage with serious cases as well as providing support to parole boards, the Department of Correctional Services and other CSOs working in this field in the Western Cape area. The organisation believes in pursuing a very thorough and professional approach, stating that the minimum number of hours a social worker should spend on a restorative process is 60 hours. In cases where serious trauma dynamics (severe violence and physical and psychological harm) exist this time could and frequently does exceed 60 hours.

Restorative justice at Traditional courtsFrom 2009–2010 NICRO ran a pilot project in Eerstehoek, Mpumalanga that attempted to integrate its usual offender reintegration work with the activities of traditional leaders from four tribal courts. A research paper by NICRO143 about the project provided a number of insights about the challenges that the project had experienced. Regarding restorative justice, these included: The operations of the traditional courts are not always conducive to victim-centred justice. In one case, the victim was publicly reduced to tears and then rebuked for crying. In the narrative of the court reports, it appears as if the traditional leaders are sometimes more concerned with whether their protocol has been followed than with the experiences and needs of the victim in question. Restorative justice practices are often absent from these proceedings and the tendency of the traditional courts to make use of fines, which in many instances, they retain. The report found that there was scope for to undertake sensitization of the traditional leaders around victim-centred justice.144

141 See www.nicro.org.za.142 Correspondence with Venessa Padayachee, Advocacy Manager, on 27 November 2018.143 J Jules-Macquet The traditional leaders research paper (2011).144 Jules-Macquet (n 146) 4–5.

http://www.nicro.org.za

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Restorative Justice with serious and violent crime NICRO has also been using restorative justice processes in serious and violent crime (such as murder and rape). NICRO has received referrals from courts on an ad hoc basis with serious and violent crime-often at a pre-sentence level. The Judiciary is still cautious about using this for serious and violent crime. NICRO has also been working closely with the DCS in tracing victims and facilitating Victim Offender Dialogues. Challenges affecting the success of such processes include tracing victims, victims often not supported or have received no counselling, suspicion when victim hears offender is about to be released, and that the process is likely to grant an offender parole. Restorative justice processes need to start earlier than just before an offender qualifies for a parole date. More restorative interventions have to also be done with the families and communities in re-entry efforts.

Restorative Justice in schoolsIn the last few years NICRO has embarked on extending its restorative justice processes to schools. This has been in response to referrals from schools of learners for bullying behaviour, gangsterism and crime and violence. We have engaged teachers, learners and parents in the process. Restorative Justice has huge potential for use in disciplinary processes as well. 1042 learners were reached through our schools projects. We continue to engage and are partnering both the Department of Education and Social Development regarding work in schools.

NICRO Therapeutic Justice CentreNICRO is in the process of developing a Therapeutic Justice Centre, which promotes balance, restorative justice and is grounded in judicial approaches that address behaviour through non-traditional sanctions and/or social services in addition to traditional sanctions. Service delivery is grounded in principles of:

9 Accountability (Increasing the offenders’ awareness of the effect of their actions on others and offering them opportunities accept responsibility for these actions and to repair the harm caused),

9 Competency development (Providing offenders with opportunities to increase their skills so they are able to function as more productive members of society), and

9 Community protection (Increasing offenders’ skills and ties to the community so they will be less likely to harm the community again)

Training, Guidelines & Advocacy NICRO has developed training material on Restorative Justice and a Guideline for Victim Offender Mediation with support from the Open Society Foundation. NICRO actively campaigns for more restorative approaches to crime and conflict, at a local, regional and international level through conference papers, dialogue and participating in research. NICRO in collaboration with key partners are also presently exploring Restorative principles that can be applied to prisons and other criminal justice environments, as well as more transformative spaces for juveniles in detention.

4.3.6 Restorative justice processes offered by the Restorative Justice Centre (RJC)

The Restorative Justice Centre is an independent Christian organisation that draws on the Catholic, Mennonite and Charismatic traditions. It is based in Pretoria. From January 2001 until February 2014 the RJC offered victim offender conferences to all the courts in the Tshwane area mainly at a pre-trial level and some isolated cases at a pre- and post-sentence level. During this period some 3141 cases involving 9905 participants were dealt with. About 60% of the total caseload involved domestic violence, with a dedicated social worker located for these cases at the Garankuwa court between 2013 and 2014. The organisation

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pioneered the use of conferencing at a pre-sentence level, also integrating the use of a restorative perspective for pre-sentence report writing through its dedicated unit.145 The RJC was also contracted by the national Department of Social Development to train 50 probation officers in each province from 2004–2006. To date the organisation has trained over 2 600 people, not including awareness raising. The RJC regards advocacy as an important part of its work and played an active role in drafting the restorative justice National Policy Framework. It also acted as Amicus Curiae in the Thabethe and Le Roux v Dey matters referred to above.146

The background to the termination of these and most of the RJC’s services is revealing. In a context of limited financial resources, a senior staff member and a consultant who had been engaged to undertake an assessment of the impact of the organisation’s services, tabled serious allegations about the senior staff and board members with the Gauteng Department of Social Development (DSD) and National Lottery Distribution Trust Fund (NLDTF), the two major funding sources of the RJC. Management acknowledged the validity of four out of over forty allegations and undertook to correct them immediately. Despite this, and despite receiving reports from two investigation teams that confirmed this position, the Head of Department chose to terminate the Service Level Agreement (SLA) retrospectively and without allowing the RJC any opportunity to take corrective action. She also expressly refused to engage with the leadership of the RJC in any way at all. The RJC challenged this decision through the courts and was ultimately successful in reversing the decision. The damage was done however – both DSD and NLDTF chose not to fund the RJC for the 2013/14 year. The DSD email notification in this regard simply stated that the department could no longer fund the service due to ‘rationalizing/streamlining’ services. After this point DSD ceased to communicate with the RJC altogether, not only about matters relating to funding, but also about general matters of interest in the field such as the accreditation of programmes and the White Paper Review.

During 2017 with the support of the National Lotteries Commission, the RJC implemented Prison Fellowship SA’s Sycamore Tree Project (a victim offender panel model) in the Baviaanspoort and Zonderwater Correctional Facilities, engaging over 300 people there. The project also involved significant social media efforts. The organisation attempted to re-establish victim offender mediation at the Pretoria and Pretoria North Magistrates’ Courts on a fee-paying basis in the absence of funding. The scope has also been broadened to include matters from the domestic violence, harassment, maintenance and equality courts. Referrals to date have been extremely low.

4.3.7 The National Prosecuting Authority and restorative justice

As part of its own focused transformation project in 2005–2006, the National Prosecuting Authority (NPA) began to realise the value of disposing of matters at a pre-trial stage using mediation. From 2007/08 onwards, the NPA implemented what it termed the Alternative Dispute Resolution Mechanism (ADRM). ADRM encompasses diversion and informal mediation as methods of resolution of disputes between parties. It includes cases diverted after enrolment, cases diverted before enrolment in terms of the Child Justice Act (CJA) and cases mediated on an informal basis. It excludes cases removed from the roll for other reasons such as withdrawal or struck off the roll. The NPA has followed this focused approach as an alternative measure to reduce trial cases.

145 See M Batley ‘A call to agents of change in the justice system: guidelines in the use of restorative justice in sentencing for magistrates, judges, prosecutors, probation officers’ 2014 https://www.rjc.co.za/about/resources

146 n 67.

https://www.rjc.co.za/about/resources

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PerformanceNB these numbers are drawn from the Annual Reports of the NPA and reflect the cases dealt with by all courts, although by their nature the bulk of ADRM, informal mediations and diversions occur at the district court level.

IND

ICAT

OR

2005

/620

06/7

2007

/820

08/9

20

09/1

020

10/1

120

11/1

220

12/1

320

13/1

420

14/1

520

15/1

620

16/1

720

17/1

8

Tota

l cas

es

final

ised

incl

A

DRM

388

634

431

601

469

541

460

891

448

793

466

800

505

342

503

463

477

802

505

351

493

844

Div

ersi

ons

adul

ts a

nd

child

ren

(AD

RM)

37 4

2244

483

46 4

7043

729

50 3

6146

538

32 8

8337

174

46 9

7247

008

43 0

4448

030

51 0

92

Info

rmal

m

edia

tions

(A

DRM

)

15 3

9338

032

68 2

7012

9 43

399

812

103

913

129

217

137

306

123

908

115

985

108

562

Case

s fin

alis

ed

excl

AD

RM

373

995

334

551

296

656

311

825

350

910

284

920

316

098

323

390

329

153

319

149

310

850

341

336

334

190

Com

pens

atio

n or

ders

19

696

124

7N

ot

refle

cted

Not

re

flect

ed

138

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In many ways this picture reflects a positive development. The NPA has formally recognised that informal mediation is a legitimate way of dealing with criminal matters, something that was not recognised previously. According to the above table, taking the total number of informal mediations as a percentage of the total number of cases finalised, the number has ranged from 21,9% to 27,2%, a significant proportion. There are, however, some concerns:

• The term ‘alternative dispute resolution mechanism’ is an NPA term that does not align with the terminology used in the field: alternative (or appropriate or amicable) dispute resolution (ADR) is used to denote a range of practices such as negotiation, conciliation, mediation and arbitration. This mis-alignment is confusing as it includes referral to other diversion programmes such as didactic life skills courses that are not part of ADR;

• As dominus litis prosecutors utilise their discretion about whether or not to prosecute, withdraw or divert a matter. This discretion is constrained and directed in the NPA Policy Directives for Prosecutors. In exercising this discretion, they wield considerable power that affects both offenders and victims. Also inherent in exercising this power, they cannot be perceived by both victims and offenders as impartial. Depending on how they fulfil this function, perceptions of being co-opted or bribed may arise. The Deputy Minister of Justice has expressed his concern publicly on exactly this point on more than one occasion;147

• At a training workshop on restorative justice and mediation facilitated by the author in October 2015 a number of ways in which prosecutors are implementing mediation became evident: some are not doing much, others are doing it very actively, even in child justice matters arising out of preliminary enquiries. It seems that many are doing conciliation rather than mediation but not recognising this,

• No further detail about the above numbers is recorded, nor has any research been undertaken regarding the types of offences in which it is used, the value of resolving cases in this way or the experience of the stakeholders,

• No provision has been made to recognise, draw on or fund the work done by the CSOs referred to above.

During this same period (2007/08 till 2017/18) all the mediation projects run by CSOs doing work at this stage of the criminal justice system have been terminated due to funding constraints. The impression has sometimes been given that these services were now being undertaken by DSD itself. However, in the absence of any statistics about this (see above) it does not appear to be the case, at least not to the same extent as the level of service that the CSOs were providing.

4.3.8 Community Advice Offices

Paralegal practitioners have a history of helping people at grassroots level gain access to justice since the 1950s in South Africa but have generally been marginalised by the mainstream system. Organisations such as the National Alliance for the Development of Community Advice Offices (Nadcao)148 and the Association of Community Advice Offices of South Africa (ACAOSA)149 are committed to the development and long-term sustainability of Community Advice Offices (CAOs), with the core mandate to facilitate access to justice for marginalised and vulnerable communities. These two organisations together work with 312 community advice offices in the 9 provinces of South Africa.

147 17 February 2016 court-annexed mediation and restorative justice workshop and annual general meeting of the hate crimes working group 30 March 2016.

148 http://nadcao.org.za (accessed 13 May 2016).149 https://namati.org/network/organization/association-of-community-advice-offices-of-south-africa-acaosa (accessed 30 May

2016).

http://nadcao.org.za

https://namati.org/network/organization/association-of-community-advice-offices-of-south-africa-acaosa

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According to ACAOSA’s chairperson, Mr Seth Mnguni,150

Community Advice Offices operate within a space of conflict often experienced by members of the community /families against each other or against private or state institutions about their rights or entitlements, CAOs therefore use flexible set of tools including negotiations and mediation to resolve the dispute navigating between formal and indigenous law and systems.

Of all cases received by Cao’s 70% are amicably resolved through mediation, these case are from clients who walks into the advice or are referred by the nearby Court. The focus of our mediation other than resolving the dispute is:

• The development of community transformation process that can be replicated at civil society level.

• Empower communities on how to manage, diffuse and develop sustainable mechanisms of handling conflicts in the home, the streets and in communities they live in.

• Facilitate a process where parties in the dispute participate in the resolution of their own dispute and thus own the process.

The provision of this service by CAOs leads to considerable direct benefits to both the communities and the justice system through increasing the efficiency of the courts by minimising the case loads. The assistance we provide ensures that our client’s matters take the correct and most efficient path through or away from the Justice System. While no national statistics are available, as an example of the scale of the work of CAOS, between January and May 2016 an office in Mabopane recorded 1300 mediation cases referred by the court, about 5 cases a day. The senior Magistrate confirmed that 90% were resolved and that 75% were female complainants.

4.4 Pre-sentence

There is no data available about the extent to which restorative justice as an approach or victim offender conferencing has been integrated by the probation officers of provincial departments of social development into pre-sentence reports. This information is difficult to track, as it would require a researcher to gain access to pre-sentence reports, and it is unknown whether there is a data base containing such reports. If provincial departments of social developments do keep such information in a central place, it would be a worth-while undertaking to analyse the restorative justice aspects of such reports. No such work has been undertaken to date.

4.5 Post sentence

4.5.1 Department of Correctional Services

The Department’s Annual Reports reflects the following information under the heading SUB-PROGRAMME: COMMUNITY REINTEGRATION:

150 Correspondence with one author on the 24 May 2016.

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2

3

4

5

6

4

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ERAL

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2013

/201

4 –

2015

/201

6

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4

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5A

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ON

S

Num

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f vic

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who

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1 75

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Num

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who

pa

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(RJ)

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still

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Enco

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are

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by

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prog

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to o

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(18)

Soc

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uxili

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orke

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osts

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e ad

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to b

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p th

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ty th

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pos

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.

151

DCS

Annu

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epor

t, 60

.15

2 DC

S An

nual

Rep

ort,

72.

153

DCS

Annu

al R

epor

t, 78

.

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According to Ms Nonosi Mokoena, Deputy Director for Client Relations in the Department, these numbers include the work done by civil society organisations such as those illustrated below.

4.5.2 Hope Now Prison Ministry154

Hope Prison Ministry has its roots in a local Baptist church and is led by a husband and wife team Reverend’s Jonathan & Jenny Clayton who are the National Prison Chaplains for the Baptist Union of Southern Africa. The Ministry operates with a Board of Directors, Executive Directors (The Claytons), Operation Directors, Three Field Directors: Boland & Southern Suburbs (Cape Town) & Eastern Cape and a Restorative Justice Coordinator for Gauteng Region. It has five focus areas:

• Incarcerated people

• Formerly incarcerated people

• Victims of crime

• Families of Incarcerated People

• Correctional Officials

Hope Now’s Restorative Justice & Victim Offender Dialogue Process consists of a 70 hour long curriculum with a group of offenders at a time. The Department of Correctional Service is supportive of the work but does not contribute financially in any way.

For the period January–December 2015, 14 Victim Offender Dialogues were conducted at Pollsmoor (as opposed to 60 the previous year) and 200 Victim Offender Mediations. Since then then operations have expanded, reflected in the numbers who have participated in 2018

• Pollsmoor CC – 36

• Dwarsriver CC – 36

• Malmesbury CC – 45

• Worcester Female CC – 24

• Drakenstein CC – 30

• Haweqau CC 30

• Brandvlei × 2 = 60

• Johannesburg × 3 = 98

• Total = 359

About 70% of this number participated in victim offender mediation or dialogue.

Some of the challenges stated by the organisation include an increase in security levels and a shortage of staff at DCS facilities, which impacts on the way programmes can be run. They also find that direct surviving victims are sometimes too bitter and angry to participate.

Hope Now has trained about 220 Correctional Officials in their International Standard Restorative Justice and Victim Offender Process.

154 Information provided by Jonathan Clayton.

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4.5.3 Phoenix Zululand155

Phoenix Zululand is a Quaker-led organisation that runs programme work in eleven prisons of Zululand, which is an informally and traditionally defined region on the east coast of South Africa in the Province of KwaZulu-Natal. The organisation’s headquarters are in a small town called Eshowe in central Zululand.

The organisation’s programme delivery is informed by the following principles:

• The agency of rehabilitation is located in the participants themselves.

• The ‘weakest’ members of society—children, women, the elderly, the sick, and victims of crime—have a role to play in restoring relationships compromised by the commission of an offence.

• Sharing stories empowers and restores the dignity of offenders, families, victims and communities.

• Listening to and understanding people’s stories reinforces the individual’s right to be heard and to be taken seriously.

• Civil society and the State can work together to bring about growth, change and healing.

Strengths of the organisation lie in programme development, facilitator training, programme implementation in the areas of offender rehabilitation and family restoration. Two of the main programmes that have emerged since the organisation started in 2003 are Conversations in Families and Phoenix Rising (formerly ‘Starting with Us’). ‘Phoenix Rising’ is a sixteen-part programme to help serving offenders prepare for re-integration into family, community and society.

The ‘Conversations in Families’ programme is based on a set of five conversations – four with people in prison, helping them journey through their memories and experiences of their families of origin to their experiences as marriage partners and parents. The fifth conversation is a family conference at which the families of all the family members of the group participants are invited. Families initially meet separately to discuss issues that have arisen over the course of the previous four conversations, after which stories are share in the large group.

Since its inception, Phoenix Zululand has been funded by the Joseph Rowntree Charitable Trust, the Foundation for Human Rights, the Open Society Foundation, BHP Billiton (now South 32) and through individual charitable donations. Programme work has in the past been supplemented by theatre activities (‘Voices beyond the Walls’ programme), fine art training for therapeutic purposes, and language training. Since the organisation started in 2003, over 5000 prisoners and their families have benefited from programme work.

Phoenix Zululand is currently funded by South32. The 2016 implementation goal was to run 30 groups between February and November, benefitting at least 360 individuals. Between 100 and 250 families would benefit from the family conferencing events. The same goal was set for 2017 and 2018. Statistics are here measured with funding cycles for these periods.

From January 2016 to June 2017, 73 Phoenix Rising programmes have been implemented in ten correctional centres, benefitting 728 serving offenders. The record shows that, across all centres but Ncome and Qalakabusha, 62.1% of inmates have been reached through the programme.

155 Information provided by Jane Argyll.

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From June 2017 to November 2018, Phoenix Zululand’s programme work reached 680 prisoners, held in nine correctional centres. This well exceeds the projected targets. The increased output reflects a sharp rise in programmes rolled out at Qalakabusha with a doubling of programme implementation and increased group sizes.

4.5.4 RESTORE156

RESTORE runs victim awareness programmes in Pollsmoor prison.

Restore is a charity that was set up in 2012 to deliver Restorative Justice courses for young offenders in Cape Town’s Pollsmoor Prison. Its founders feel restorative justice encapsulates the gospel message of restoration and reconciliation and their faith is at the centre of their work. A holistic approach is adopted within the time in prison.

RESTORE’s Programs and Area of Intervention

The 3-step ABC

A – ACKNOWLEDGE a wrong has been done. B – BELIEVE there is a way to right the wrong.C – CHANGE / CONSIDER a new way of life. Recognize the damage of crime. Make positive choices.

The course includes the topics: How crime affects individuals, families and communities; Victims and victimization; Repentance – How can the wrong be made right?; The vocabulary of Restorative Justice; The ripple effects of crime; Forgiveness; Future orientation.

The approach draws on the work of violence and perpetrators’ own trauma by James Gilligan and James Garbarino.

Victim Offender Dialogue

The harm caused by criminal activity is articulated. The experiences of victimization are brought to light. Often this entails a ‘surrogate’ victim of crime telling their story, followed by discussion and a period of reflection by inmates. Restore is currently using the documentary ‘Black Christmas’ by Pumla Gobodo-Madikizela and directed by Mark Kaplan to open discussions around victim offender dialogue and forgiveness.

Leadership Training

We give young men the opportunity to consider their own life’s story and equip them to envision the future in a more positive way.

Topics covered: Changing poverty thinking; Breaking generational walls.; Characteristics of a good leader; Leadership for the benefit of others (Writing your story); The seven mindsets of a good leader; The five stages – where to from here?

Inside Out Inside Out was a project started by the young men inside prison when they began to ask, ‘How can we begin to give back even in here?’ These classes make educational toys for early childhood development centre’s in the community and they are busy learning about recycling too.

Pastoral Care

There is no functional system of social work that exists. Restore facilitates contacts with other charities & organisations, such as RLABS for skills training, churches, links with the National Institute of Crime Prevention (NICRO) and inmates’ families to help them pursue a changed life on the outside. RESTORE follows up on those who make contact back in their community.

From January 2012 RESTORE worked with the young adult offenders (18–21 years olds) in Medium A under the auspices of the Service Providers Department. Many changes were made practically overnight

156 Information provided by Lisa Marqua-Harries.

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towards the end of 2016 when a judge ruled against the government and made a historic order to reduce occupancy to 150% of its capacity over a six-month period.157

With the majority of the young adults moved to outlying prisons, RESTORE began working in pre-release Medium C of Pollsmoor in 2017, continuing with victim awareness classes. Currently there are two full time and two part time volunteers assisting. Working in this section has placed the emphasis on re-integration, an area many are struggling in.

The programme is called an Introduction to Restorative Justice, consisting of ten sessions, conducted two mornings a week. This is then followed by Leadership classes and a continuing involvement with the Inside Out Project run on a third morning in the week.

From 2018 RESTORE has begun training in schools in the community through a partnership with R-Cubed. The main aim is to equip and empower staff in areas of communication and capacity building.

RESTORE’s work can be summarized as follows:

2015 (MEDIUM A) 2016 (MEDIUM A) 2017 (MEDIUM C) 2018 (MEDIUM C)

6 × Restorative Justice 6 × Restorative Justice 4 × Restorative Justice 4 × Restorative Justice

5 × Leadership 6 × Leadership 4 × Leadership 5 × Leadership

*1 × Entrepreneur class

*Inside Out class started Inside Out continued Inside Out continued

91 students graduated 73 graduates (77 registered) ( + 8 adults)

94 graduates (147 registered)

140 graduates (193 registered)

*Saturday church (at least 30 men at a service).

Speaking: UK × 2, Costa Rica, USA, UCT

Speaking: UK, Holland, Turkey, UCT

Speaking: UK, Germany Speaking: UCT

Workshop: James Garbarino

1 × workshop (Colour of justice)

*2 × schools training

Christmas picnic outside 1 × picnic reunion

18 international visitors 12 international visitors 3 × international visitors & 5 × local

1 × intern for 2 months (Social worker from UK)

1 × part time student volunteer

For more information visit www.restore.org.za.

157 https://genderjustice.org.za/publication/court-order-pollsmoor-remand-overcrowding-case/.

http://www.restore.org.za

https://genderjustice.org.za/publication/court-order-pollsmoor-remand-overcrowding-case/

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4.5.5 Prison Care and Support Network (PCSN)158

PCSN is a prison ministry operating under the auspices of the Catholic Church in the Archdiocese of Cape Town. The organisations aims to respond to the spiritual and emotional needs of prisoners and their families. They provide care and support after release, including through programmes aimed at the reintegration of offenders. Restorative justice is integrated into their work.

The scale of PCSN’s work is as follows:

2014–15 2016–17 2017–18 FEMALES AT POLLSMOOR

Inmates/Restorative processes 135 150 125 19

Family members involved 173 150 143 30

4.5.6 Challenges experienced by the group of service providers working with Department of Correctional Services

Generally, this group of service providers experienced a similar attitude reported in the Social Welfare White Paper Review referred to above regarding the top-down approach in which government imposed its views. More specific challenges in this area of service included the difficulties that arise in working in an overcrowded environment, an apparent lack of understanding and confusion, unhelpful and negative attitudes on the part of some DCS officials, and difficulty in managing the inherent tension in nurturing a collaborative relationship required when involved in direct service provision, and dealing with abusive and other wrongful behaviour by DCS officials.

It must also be noted that DCS does not provide any financial support to CSOs to undertake the work described above, or any other work. One organisation, Prison Fellowship South Africa (PFSA), which facilitates the Sycamore Tree Project in a number of facilities, have registered their facilitators as spiritual care workers who then eligible to receive a stipend159 subject to available budgets. Despite many years of irregular engagement with CSOs about this matter, the Department does not seem to accept the need for supporting organisations financially and has no processes in place for this purpose. Service providers wishing to provide services have to submit the content of their programme for approval; if accepted they are required to sign an agreement in which they undertake to provide all their own human and other resources in running the programme and that no profit will be generated in favour of the service provider.

It must also be noted that during 2013 – 2014 under the minister at that time, Sibusiso Ndebele, the concept of Victim Offender Dialogue (VOD) was introduced as something distinct from victim offender mediation. Senior officials driving the project were heard to state publicly that VOD was not part of restorative justice. A set of guidelines for facilitators at the time did not go this far, but maintained there was a difference between VOD and ‘other forms of Restorative Justice like victim Offender Mediation, Victim Offender Conferencing and Victim Offender Reconciliation (p8) as the emphasis was more on healing and symbolic restitution. The department also made VOD a very public event at which victims and offenders were required to tell their stories and express reconciliation at sometimes very large gatherings. Anecdotal reports from service providers suggested that some of these events were badly planned; in one case a rape victim was told by the perpetrator in front of a large group that the incident for which he had been imprisoned had not been

158 Information provided by Fr. Babychan Arackathara.159 PFSA declined to submit statistics of the number of Sycamore Tree Project groups facilitated.

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forced but consensual. While expressing many laudable aims and linking the acceptance of responsibility and making amends to the process of rehabilitation and reintegration, the project was also notable for being implemented without any reference to initiatives in related departments within the Justice Cluster, such as the National Policy Framework that was under discussion at the Department of Justice at the time. Since the departure of the Minister Ndebele the high profile given to VOD has not been sustained.

4.6 Family Law

The Children’s Act,160 makes explicit provision in Section 70 for a family group conference to be set up with the parties involved in a matter, including any other family members of the child, in order to find solutions for any problem involving the child. In Section 71 the Act makes provision for referring a matter to any appropriate lay-forum, including a traditional authority, in an attempt to settle the matter by way of mediation out of court.

According to Ms Agnes Muller, formerly of the Department of Social Development, no statistics are kept regarding this section, so there is no national or provincial picture regarding the level of implementation of this section.

Regarding the resolution of conflict over maintenance and parental access matters, it seems that a number of social workers employed by provincial social development departments are utilising informal mediation for this purpose. According to a representative161 from Family Justice (now run under the Social Justice Network (Pty) Ltd), a company that offers mediation training, their company has trained approximately 50 social workers from the social development departments in Gauteng, North West and Limpopo in mediation theory and skills. Informal contact between the trainees and trainer suggests that this approach is being implemented actively but no data is available regarding the extent of this.

An initiative exploring the use of mediation in maintenance matters was started at the Mitchell’s Plain Magistrate’s Court in 2006. At that stage the court was only using criminal procedures to deal with failure to pay maintenance. Working as part of the Equilore Family mediators’ panel, Laurie and his wife Anneke Greyvenstein later extended their services to assisting clients to get new maintenance orders, get maintenance increases and decreases, and negotiating all kinds of maintenance-related queries. The news started to spread, and in a short period of time, they helped parents from all over the country and abroad in more than 9500 documented cases.

When a maintenance order is in arrears, in terms of the Maintenance Act, 1998 there are three main possible courses that the custodian parent can follow: (a) laying a criminal charge; (b) instituting civil action in terms of the Maintenance Act, or (c) mediating the matter through a private accredited family mediator who specialises in maintenance matters.

Pursuing criminal procedures is time-consuming, ineffective and inappropriate in most cases, given that one is dealing with family relationships. The second remedy for custodian parents is to institute a civil action. This remedy has not really been utilized by our courts since the implementation of the new Maintenance Act in 1998. The Act provides for three solutions: (a) the attachment of the defaulter’s property; (b) The attachment of the defaulter’s salary, and (c) the attachment of any debts owed to the defaulter.

160 Act 38 of 2005.161 This information is based on information provided by Laurie and Barry Greyvenstein as well as an article Working your way

through the maintenance maze that appeared in Servamus, the in-house publication of the SAPS in May 2012.

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To utilize any of these three civil remedies against the defaulter, the custodian parent must have a valid existing maintenance order in his/her favour and the maintenance order must be in arrears for at least ten days.

The third option of pursuing mediation has to date been used even less than the civil action route. Following a typical mediation process and using a trained mediator, mediation preserves the relationship between the parties and it creates an atmosphere where a knowledgeable person can assist them to find their own workable solutions. When the parties reach an agreement, it can be made an order of court without them having to attend court. Obviously mediation is a consensual process and is thus not suitable for every case. The Act was amended in 2015, among other things, making it mandatory for maintenance officers to furnish the personal details of maintenance defaulters to credit bureaus. Regulations of the National Credit Act also require that a maintenance order also be taken into account when considering a person’s creditworthiness.162 Greyvenstein believes that these amendments create additional motivation for using mediation proactively and that mediation using private external mediators is the only way that the volume of matters that are brought to the courts can be dealt with.163 This view would seem to be confirmed by a recent survey of the attitudes and behaviour of SA’s working metropolitan population about saving: almost half of all mothers in the country classify themselves as single parents, with 88% of them not receiving regular financial support from the fathers of their children. Furthermore, the poorer the household, the more likely it is that it will include a single mother.164

In Charting Progress (2006), we featured two children’s homes (now known as child and youth care centres) in Kwa-Zulu Natal and how they were using the concept of family group conferencing for dispute resolution in the day to day functioning of the facility as well as in pursuing reconciliation with their parents.

Reflecting this movement and the spirit of the times in 2005 Mirriam Siluba published a book chapter entitled Restorative work: An integral feature of South African child and youth care. She frames this work in child and youth care within the international understanding of child and youth care work but also draws explicitly on the specific South African context, concluding:

Africa as continent has laid a foundation of traditional indigenous restorative justice principles. The South African Truth and Reconciliation commission has modelled the power of restorative justice, Ubuntu, connectedness, relationship and co-operation to humans, both adult and youth. The field of child and youth care has equipped South African practitioners with the principles of life space work, doing with (not for or to), meaning – making and being with people in their lives. Nothing prevents us from utilising this knowledge. The context is very much enabling.

The scope of the current study did not allow for field work or direct interaction with a full range of service providers. According to Ms Kathy Scott, General Manager of the National Association of Child Care Workers (NACCW) there is no central information available about the extent of implementation of restorative justice practices in child and youth care centres. NACCW has its own training material on restorative justice and utilises this on request.

162 These amendments only came into effect on 5 January 2018 – see https://www.iol.co.za/pretoria-news/law-to-ensure-papgeld-dodgers-toe-line-12560948.

163 Personal communication 16 August 2016.164 Old mutual savings and investment monitor, reported in personal finance 9 July 2016.

https://www.iol.co.za/pretoria-news/law-to-ensure-papgeld-dodgers-toe-line-12560948

https://www.iol.co.za/pretoria-news/law-to-ensure-papgeld-dodgers-toe-line-12560948

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4.7 Court annexed mediation in civil matters

In March 2014 the Rules Board for Courts of Law published a notice making provision for court-annexed mediation in civil matters in magistrates’ courts. Requirements were listed for the accreditation of mediators, a schedule for fees that can be charged was issued and twelve pilot sites were proclaimed (nine in Gauteng and three in North West provinces), with the project starting on 1 February 2015. According to Section 71 of the notice, the purposes of mediation include promotion of access to justice; and restorative justice. In February 2016 a workshop about the status of the project was convened at which both the Minister and Deputy Minister of Justice were present.

The information shared during the workshop reflected that 1042 mediations had been conducted since the project started in February 2015. Almost all of these were done on a pro-bono basis. Clients agreeing to mediation seemed to expect that this is a service provided by the Department of Justice and that it must be available without payment. There also seems to be a perception that mediation is an option only for the poor, for those who cannot afford litigation. Some magistrates have been very proactive in referring matters, including criminal matters. In the North West, a province in which traditional leaders are very active, there was a feeling that mediators were taking away cases that traditional leaders typically had dealt with, without charging fees.

Officials from the project team indicated an intention to extend the service beyond the existing pilot sites, that they were considering strengthening mediation through legislation and that there was strong interest in doing this from government departments in the fields of health, transport and safety. It was stated that the SAPS was spending in the region of R5bn in legal fees to process claims to the value of R2bn.165 The current status of this project and related initiatives could not be confirmed.

4.8 Initiatives in education policy and private schools

A number of research initiatives have reflected alarming levels of violence and crime in South African schools. For example, a study by the Centre for Justice and Crime Prevention166 found:

• 22,2% of children experienced various forms of violence, including sexual assault and online bullying during the period demarcated for the study;

• 44,1% of learners had experienced some sort of theft;

• Classrooms were the most common sites for the incidence of sporadic violence;

• Feelings of fear were commonly associated with the schooling experience.

Similarly, a study by the Centre for the Study of Violence and Reconciliation on the nature of violent crime in South Africa, commissioned by the Minister of Safety and Security on behalf of the Justice, Crime Prevention and Security (JCPS) cluster of cabinet ministers. Included in its recommendations that attention be given to:

• Creating safety in public and other spaces such as schools

• Child and youth development especially aspects such as bullying

• Addressing the culture of violence.167

165 Despite a number of attempts to obtain written confirmation of all this information, this was not forthcoming.166 L Leoschut ‘Snapshot results of the 2012 national school violence study’ In research bulletin number 5 March 2013. Centre

for justice and crime prevention. http://www.cjcp.org.za/uploads/2/7/8/4/27845461/rb5-snapshot_results_2012-school-violence-study.pdf (accessed 10 May 2013).

167 Bruce (n 5) 53–62.

http://www.cjcp.org.za/uploads/2/7/8/4/27845461/rb5-snapshot_results_2012-school-violence-study.pdf

http://www.cjcp.org.za/uploads/2/7/8/4/27845461/rb5-snapshot_results_2012-school-violence-study.pdf

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Over the past ten years there have been several initiatives aimed at developing a broader framework for managing this situation, such as the Hlayiseka Safety Toolkit of 2008 (Centre for Justice and Crime Prevention and Department of Education, later integrated into the National School Safety Framework), Safe and Caring Child Friendly Schools in South Africa (Department of Education and UNICEF), and the National School Safety Framework (NSSF) (2012 Centre for Justice and Crime Prevention and the Department of Basic Education, Pretoria). The School Safety Framework has developed a set of comprehensive guidelines around the concept of positive discipline, locating this in the teaching approach and the management of classrooms. While the guidelines do touch on conflict resolution, they do not integrate the explicit principles of restorative discipline, although these two approaches are certainly not mutually exclusive. According to the Safer Spaces website,168 the NSSF was signed off by the Minister of the Department of Basic Education (DBE) early in 2015. Training on implementation was scheduled for the rest of 2015 and evaluation of this in 2016. No further information about the status the NSSF could be obtained.

At the same time, small scale initiatives at private schools have been developing that have drawn on a more explicitly restorative approach.

4.8.1 Initiatives at St Stithian’s Boys College

Luke Pearson is a teacher at St Stithian’s who spent time teaching in the UK. During that time he was exposed to restorative practices and its extensive use in some schools for dealing with conflict at all levels (between learners, between teachers and learners, between parents and teachers and between teachers) in schools as well as in formal discipline matters. He was trained as a facilitator. He has initiated the use of this approach in his current environment.

At present he focuses on peer to peer issues involving bullying and fights. Other stakeholders are generally not involved, and the school management is cautious about involving parents in restorative conferences. However, sometimes pre- and post- conference meetings with parents are required and this can be very time-consuming.

The approach that Pearson was trained in while in the UK included a Restorative Interview to assess students who would benefit from a broader approach for dealing with personal and behavioural problems known as Solution Focussed Therapy. St Stithian’s does employ Solution Focussed Therapy currently, but has not yet linked the two. Solution Focussed Therapy is a strengths-based approach that supports parties in identifying and choosing their own outcomes, rather than imposing outcomes by the facilitator.

Pearson is currently dealing with about one case every two to three weeks. Positive feedback has been received from the victim parties in these matters. Only one case has been referred back.

Regarding future development and possible expansion of this approach, Pearson indicated that many of his colleagues tend to be sceptical. They need to experience the approach for themselves and see its impact. For this reason, he is convinced that a restorative approach needs to be chosen and driven voluntarily by individual teachers rather than being imposed by management.

168 http://www.saferspaces.org.za/be-inspired/entry/national-school-safety-framework-nssf (accessed 30 May 2015).

http://www.saferspaces.org.za/be-inspired/entry/national-school-safety-framework-nssf

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4.8.2 Initiatives at the Catholic Institute for Education (CIE)169

The Catholic Institute of Education is an NGO that delivers programmes to Catholic schools.

The CIE is the service arm of the Catholic Board of Education, an associate body of the Southern African Catholic Bishops’ Conference (SACBC). The CIE has provided services to the network of 330 Catholic schools since 1985. The main focus of CIE’s work is in rural and peri-urban schools, situated in the poorer, less developed parts of southern Africa. As of 2018, 72% of Catholic schools in South Africa are public schools, with over 6 000 teachers and 180 000 learners, who represent diverse cultures and religions, and where Catholic teachers and learners are in the minority.

The CIE’s mission is to serve and strengthen the Catholic education network so as to enable Catholic schools to offer values-based, quality education to learners in an environment that is conducive to their physical, emotional, moral, intellectual and spiritual development as national and global citizens.170

The Building Peaceful Catholic Schools’ Programme (BPCS) was initiated in 2012.171 The initial impetus arose working with the Child Safeguarding Policy and the difficulties that principals and teachers were experiencing regarding discipline. In developing and implementing the programme CIE has noted the high levels of societal, school and family violence. Restorative justice is an unfamiliar concept, even when some participants note corollaries between it and customary or local practices of justice. As with the wider education system, Catholic schools reflect a range from excellent school communities to others that are dysfunctional in many ways. Especially in Public Schools on Private Property with a distinctive religious character, teachers are often not in Catholic education by choice. Although this is improving, school organizational structures are insufficiently developed, and staff do not find it easy to sustain a healthy organizational culture. Teachers feel caught by changes to disciplinary processes, organisational requirements, and curriculum change, leading to a sense of frustration and personal disempowerment. The stress that results from this increases conflict, and is exacerbated by teachers feeling unable to change personal and other circumstances, including those with colleagues, partly as a result of not having the personal skills and processes that might help them to address conflict. At the same time, there has been a growing emphasis on legalistic and procedural requirements for disciplinary hearings – for learners as well as teachers.

BPCS is grounded in Catholic Social Teaching, particularly:

• The dignity of the human person – the belief that every human being is entitled to be treated with deep respect

• Community and the common good – that as social beings we need community and to act always with the common good in mind

• Rights and Responsibilities – human dignity can be protected and a healthy community can be achieved only if human rights are protected. Corresponding to these rights are responsibilities – to one another, our families, and wider society.

• Promotion of Peace – Catholic teaching promotes peace as a positive, action-oriented concept. There is a close relationship in Catholic teaching between peace and justice. Peace is the fruit of justice and is dependent upon interpersonal charity and right order among human beings.

169 Information provided by Anne Baker, John McCormick and Evona Rebelo.170 www.cie.org.za (accessed 13 June 2018).171 Misereor, Misean Cara, and Porticus have been successive funders of the programme.

http://www.sacbc.org.za/

http://www.sacbc.org.za/

http://www.cie.org.za

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The programme is built around three foci: Peacebuilding, Conflict Management and Restorative Justice. Each focus is iteratively explored and, thanks to support by funders, has grown to 5 cycles comprising 16 workshops. The core of the programme is carried in the first 7 workshops:

• Peace-Building, Conflict Management, Restorative Justice – Introduction, Restorative Justice – Conferencing

• Presence, Conflict Management – with a focus on Anger, Restorative Justice – with a focus on Forgiveness

Here, and throughout, the emphasis is on: personal agency (The change we hope for begins with me’); an orientation towards building peace and correcting situations (‘Helping things to go right’ & ‘When things go wrong, finding a way to put them right’); non-violent communication – especially listening and I messages; conflict management; and Restorative Justice. Subsequent workshops deepen participant’s skills by inviting them to bring their experience into conversation around three themes: Gender, Affirming Identity; Challenging Racism, Practicing Hospitality and Countering Xenophobia. The intention is to influence school culture, processes and structures in a way that facilitates better relationships between members of the school community.

In addition to the workshops, schools have been introduced to Child Safeguarding, and monitoring conversations with learners and teachers using a School Climate Survey for Learners. Apart from a facilitator’s manual, Building Peaceful Schools, there is a Six of the Best DVD introducing Restorative Justice, and posters that accompany each of the themes. In addition, 8 High Schools have introduced Peer Mediation.

As of November 2018, some 67 schools are participating in the programme, albeit at different stages. The programme encourages schools to integrate a restorative approach into their disciplinary policies and codes of conduct for staff and learners. Each school has to take ownership for its own development and it is recognized that this is a long-term project.

Some learnings from the programme are that facilitators and participants require a shift from punitive to restorative approaches. Also, the foci on peacebuilding and conflict management tend to be taken up fairly quickly, first in family contexts and then among staff at schools. However, the move beyond these to restorative approaches to conflict is harder to achieve.

During the course of 2018, an internal review of the programme was conducted at a selection of participating schools, and case studies developed from interviews with school leaders, teachers and learners. A key finding shows that while the required shift in awareness and behaviour change takes time, consistent interaction with participants at schools, assisted by good ways of dealing with staffing and other changes, leads to an improved culture of care and learning at their schools. This change follows a pattern, moving from intra- to interpersonal relationships, and where a growth in awareness precedes shifts in behaviour. Data from the School Climate Survey acts as a nudge towards change, and highlights other challenges such as the effect of increasing class sizes on classroom behaviour. The involvement of leaders who have come to trust and invest time in the programme’s methodologies is a significant influence for change. The data also indicates a high correlation between harmonious relationships (between all members of the school community) and restorative practices. Aspects of the programme’s methodology are affirmed – the use of stories or case studies and the three-fold iterations, in particular. In schools where restorative justice and other aspects of the programme have taken root, an enabling learning atmosphere is created – where

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mutual respect is important, where the language used is positive, and where there is an awareness of psychological effect of the behaviour of each person in the school. This is supported by the Catholic ethos of the school, and works within it. In some cases, this enabling environment occurs despite factors such as large class sizes and low socio-economic status of learners’ families.

Of the 12 schools covered by the internal review, the four have travelled furthest (i.e. whose staff have participated in 15 workshops) show the most movement towards restorative practices. These schools show high levels of harmony between teachers and learners, and practices such as circle time and conferencing work both formally and informally in place of more punitive methods. The effect of the programme resonates throughout the school. In the voice of one learner from a rural primary school, albeit now adjacent to an RDP housing settlement:

‘The teachers keep us safe, and they do their jobs. But, there are people who don’t want to write, who don’t respect – but they don’t punish the people who do that – instead, they try to make things right so that they reach that place. But the majority are in the right place now. We are a family here. And, furthermore, if you do something wrong, you cry – perhaps you do something bad to the teacher, and she doesn’t have an issue with it. She says “My child, you will come to me whenever you feel like asking for forgiveness, because for my part I have long since forgiven you.” And then you will go to Miss and say “Please forgive me for something that I had done,“ and Miss won’t have an issue at all. She would just hug you and say “You are my child, you are the same as my children, and I have long since forgiven you.” You really feel like you’re at home here. Even though she’s a teacher.

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5This review of national developments in the field of restorative justice, the South African political and policy environment and current practice shows that while it was embraced with some enthusiasm during the period 1996 to 2008, further development and implementation has stalled. After being in development since 2009, the Restorative Justice National Policy Framework appears to have been completely side-lined. There is no implementation plan and no attention to resourcing issues. There are significant gaps in data from government agencies and data from CSOs suggest lower levels of implementation than a decade ago.

The information provided by practitioners from the CSO sector indicates some worrying trends regarding cases being resolved through restorative justice processes and outcomes. Many have shifted their attention away from child offenders towards young adults. While that group also deserves attention, the implication is that the state is presumably providing restorative justice services to children, but there is limited transparency in the content and quality of such programmes, and a dearth of independent evaluations. The fact that some NICRO offices and the RJC has closed doors is a very worrying sign, and points to a deep problem in the partnership between government and civil society. The reduction in the number of cases coming into the child justice system (and a concomitant reduction in the number of cases being referred for a diversion – at least in numbers, if not as a percentage) gives the impression that diversion practice is dwindling rather than burgeoning as had been expected The increased use of referral to ‘ADRM’ by the prosecuting authority may be seen as a positive factor, but the extent to which the process and outcomes are restorative is questionable. Mediation projects run by CSOs have mostly been terminated due to a lack of funding. Restorative justice work with sentenced offenders continues, but it is patchy and characterised by precarious relationships with Correctional Services authorities. In the criminal justice sphere, therefore, we observe a dwindling of restorative justice work, compared with a decade ago, when the Child Justice Act was poised for implementation and expectations for restorative justice expansion were high. In other areas such as family law and court annexed mediation, the law has improved the possibilities of using more mediation, but this has not resulted in clearly documented systemic change. Initiatives in education policy and in private schools is promising, but again, these efforts are not systemic, but are rather driven by motivated individuals and groups.

Despite the promising signs from both local and international research of the value of restorative justice processes and related programmes in contributing to crime reduction, offender reintegration and victim empowerment, as well as the effective administration of justice in general, South Africa has failed to systemically embrace these practices. This also indicates the lack of ability to provide leadership in this area by the state.

The analysis of the concept of the developmental state and how this has been used by the government suggests that the South African state does not have the capability to implement or spend public funds effectively or efficiently, and is beginning to emerge from the grip of neo-patrimonial state capture. While this reflects clearly in responses to the broader structural issues of poverty, unemployment and inequality, it is also seen in the poor coordination within and between government departments in the justice and social clusters, as well as in the lack of collaboration and trust between government and CSOs. The experience of CSOs outlined above mirrors the experience documented in the Review of the Welfare White Paper on Social Welfare and appears to be one of the outcomes of the way government defined the role of civil society and itself as part of the developmental state. In our view, the perspective described in

ANALYSIS AND REFLECTION

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Charting Progress (2006) that the appropriate balance of the roles of the State and civil society is that the State should primarily be ‘steering’ – providing direction and fulfilling the roles of enabler, resourcer and guarantor of practice, and that civil society should be the primary ‘rower’, the main implementer, remains valid. Even in the current climate of financial austerity, the State is not absolved of its responsibility to provide services to the vulnerable, who constitute the majority of people affected by violence and crime. At the same time, there appears to be an growing awareness of the need to nurture a more active notion of personal agency as part of ‘a broader, more liberating notion of citizenship as ‘work’ and as co-creating with the state. For that to happen, civic education regarding the rights and responsibilities in the Constitution must take place in schools and other places of learning.’172

In a context of a demand for services that is unlikely to ever be adequately met by government alone, it is tragic that the efforts of CSOs are being side-lined in this way. Despite the challenges they experience, the resilience, perseverance and creativity on the part of practitioners is striking. This is particularly so in the area of school discipline. While no efforts of this nature were documented in Charting Progress (2006), section 15 reflects an encouraging depth of development.

It is this context that restorative justice advocates and practitioners need to find ways to engage constructively. Obvious pitfalls in this regard are the danger of retreat and disengagement: in the face of numerous, complex challenges, it is easier to attempt practice implementation without connecting the personal/interpersonal/community specific Issues with the broader structural issues and without engaging government agencies.

Regarding the first pitfall, Henkeman173 has written of the need to develop a ‘deeper and longer analysis of violence’. This entails exploring the cultural, structural, psychological, and physical dimensions of violence, how these have contributed to a specific incident and how responses to the incident can be connected to initiatives that address these broader dimensions.

A specific example of this approach appears to have been followed by the Sexual Violence Task Team of Rhodes University (2016). Arising from a comprehensive report exploring how a counter culture to rape culture could be implemented, the Task Team recommended that the University adopt ‘a conceptual approach that draws simultaneously from the principles of:

• Retributive justice (support for people who opt to use the Criminal justice system and internal disciplinary procedures)

• Remediation, mediation, and restorative justice (processes whereby harms are acknowledged and amends made)

• Reparative justice (systemic processes and that address the gendered norms underpinning rape culture).

172 Judith February 21 October 2019.The cure for what ails us is greater engagement by citizens. https://www.dailymaverick.co.za/opinionista/2019-10-21-the-cure-for-what-ails-us-is-greater-engagement-by-citizens/ accessed 22 October 2019

173 S Henkeman et al ‘Open guide to a deeper, wider and longer analysis of violence’ 2016 https://www.researchgate.net/publication/312587585_Open_Guide_to_a_Deeper_Wider_and_Longer%27_analysis_of_violence ( accessed 17 July 2017).

https://www.dailymaverick.co.za/opinionista/2019-10-21-the-cure-for-what-ails-us-is-greater-engagement-by-citizens/

https://www.dailymaverick.co.za/opinionista/2019-10-21-the-cure-for-what-ails-us-is-greater-engagement-by-citizens/

https://www.researchgate.net/publication/312587585_Open_Guide_to_a_Deeper_Wider_and_Longer%27_analysis_of_violence

https://www.researchgate.net/publication/312587585_Open_Guide_to_a_Deeper_Wider_and_Longer%27_analysis_of_violence

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Regarding the second pitfall, Stauffer has proposed that we need to integrate personal and structural agency, to balance restorative justice as an ‘interpersonal, social service practice’ and a ‘framing paradigm for systemic change’ by understanding restorative justice as a social movement. He identifies three tasks necessary to do this:

• Form individual and organizational alliances that can support the strategic, organizational and logistical requirements of durable change

• Develop and sustain strong localized practice

• Ensure collaboration between individuals and organizations both within and without the field to drive transformation of the system as whole.

These very real challenges should also not obscure the opportunities provided within the developments of the National Prosecuting Authority’s ADRM approach174, the ongoing attention to the Child Justice Act, Victim Offender Mediation and Victim Offender Dialogue within the Department of Correctional Services, the Children’s Act, amendments to the Maintenance Act, court-annexed mediation and the Hate Speech and Hate Crimes Bill.

174 At the time of writing efforts are underway to finalise a set of guidelines and standards for adult diversion that will enable the registration and accreditation of programmes for adults, under the leadership of the Department of Social Development.

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6In the light of this analysis, we make the following recommendations to all practitioners in the field of restorative justice and related fields of conflict transformation, crime reduction and prevention, offender reintegration and victim empowerment:

a. Form a broad alliance between government and civil society organizations and practitioners from all these fields and develop a broad, long-term strategy to advance restorative justice that takes the current realities fully into account and focuses on both community and government.

b. Engage the justice and social government clusters on the need to finalise the National Policy Framework and implementation plan.

This engagement should involve people with economic and public sector management expertise and be done at an administrative level provincially and nationally as well as at legislative level.

Specific attention should be given to clarifying the respective roles of civil society and government departments, particularly in the light of the developmental state paradigm and the realities of limited state capacity. The view that the State should primarily provide direction and fulfil the roles of enabler, resource and guarantor of practice, and that civil society should be the main implementer is a useful starting point for this task.

c. Develop a long-term public awareness and education strategy to promote a restorative justice approach and the contribution of the fields of conflict transformation, offender reintegration and victim empowerment to crime reduction and prevention.

d. Develop a system to accredit training and licensing of restorative justice mediators that both distinguishes between the fields of restorative justice and mediation and builds bridges between them.175

e. Develop a national framework for record keeping and data collection.

175 An initiative is underway under the auspices of the SA Association of Mediators (SAAM) to set up the SA Restorative Justice Accreditation Board (SARJAB) that will benchmark restorative justice mediation with norms and standards in commercial and family mediation. SARJAB, and the licensing and training standards, was launched on 11 September 2019.

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Walters, MA (2014) Hate crime and restorative justice: exploring causes, repairing harms Oxford University Press: Oxford.

http://www.cyc-net.org/cyc-online/cycol-0407-siluma.html

Restorative Justice an approach to Justice Collectively Identifying Harms, needs and Obligations Accepting Responsibilities Making Restitution Taking measures to prevent a recurrence of the incident promoting Reconciliation South Africa’s Truth and Reconciliation Commission (TRC) Reducing or preventing criminal behaviour Reducing crime victims’ post-traumatic stress symptoms and related costs Reducing crime victims’ desire for violent revenge against their offenders Providing both victims and offenders with more satisfaction with justice than the criminal justice system Structural Injustice inter-personal crime cannot be policed Inter-personal crime cannot be reduced by hard-line security measures Inter-personal crime cannot be reduced by punishment attending to the relational dimensions of justice attenting to the underlying factors that led to the commission of a crime Peacebuilding Mediation Conflict Transformation Restorative justice jurisprudence The developmental state The National Development Plan The Social Welfare White Paper Review National Policy Framework for Restorative Justice Professional social service Social movement Hate Crimes Criminal justice: Pre-trial (diversion) Pre-sentence Post sentence Family Law Court annexed mediation in civil matters Restorative justice in schools Restorative Justice an approach to Justice Collectively Identifying Harms, needs and Obligations Accepting Responsibilities Making Restitution Taking measures to prevent a recurrence of the incident promoting Reconciliation South Africa’s Truth and Reconciliation Commission (TRC) Reducing or preventing criminal behaviour Reducing crime victims’ post-traumatic stress symptoms and related costs Reducing crime victims’ desire for violent revenge against their offenders Providing both victims and offenders with more satisfaction with justice than the criminal justice system Structural Injustice inter-personal crime cannot be policed Inter-personal crime cannot be reduced by hard-line security measures Inter-personal crime cannot be reduced by punishment attending to the relational dimensions of justice attenting to the underlying factors that led to the commission of a crime Peacebuilding Mediation Conflict Transformation Restorative justice jurisprudence The developmental state The National Development Plan The Social Welfare White Paper Review National Policy Framework for Restorative Justice Professional social service Social movement Hate Crimes Criminal justice: Pre-trial (diversion) Pre-sentence Post sentence Family Law Court annexed mediation in civil matters Restorative justice in schools Restorative Justice an approach to Justice Collectively Identifying Harms, needs and Obligations Accepting Responsibilities Making Restitution Taking measures to prevent a recurrence of the incident promoting Reconciliation South Africa’s Truth and Reconciliation Commission (TRC) Reducing or preventing criminal behaviour Reducing crime victims’ post-traumatic stress symptoms and related costs Reducing crime victims’ desire for violent revenge against their offenders Providing both victims and offenders with more satisfaction with justice than the criminal justice system Structural Injustice inter-personal crime cannot be policed Inter-personal crime cannot be reduced by hard-line security measures Inter-personal crime cannot be reduced by punishment attending to the relational dimensions of justice attenting to the underlying factors that led to the commission of a crime Peacebuilding Mediation Conflict Transformation Restorative justice jurisprudence The developmental state The National Development Plan The Social Welfare White Paper Review National Policy Framework for Restorative Justice Professional social service Social movement Hate Crimes Criminal justice: Pre-trial (diversion) Pre-sentence Post sentence Family Law Court annexed mediation in civil matters Restorative justice in schools Restorative Justice an approach to Justice Collectively Identifying Harms, needs and Obligations Accepting Responsibilities Making Restitution Taking measures to prevent a recurrence of the incident promoting Reconciliation South Africa’s Truth and Reconciliation Commission (TRC) Reducing or preventing criminal behaviour Reducing crime victims’ post-traumatic stress symptoms and related costs Reducing crime victims’ desire for violent revenge against their offenders Providing both victims and offenders with more satisfaction with justice than the criminal justice system Structural Injustice inter-personal crime cannot be policed Inter-personal crime cannot be reduced by hard-line security measures Inter-personal crime cannot be reduced by punishment attending to the relational dimensions of justice attenting to the underlying factors that led to the commission of a crime Peacebuilding Mediation Conflict Transformation Restorative justice jurisprudence The developmental state The National Development Plan The Social Welfare White Paper Review National Policy Framework for Restorative Justice Professional social service Social movement Hate Crimes Criminal justice: Pre-trial (diversion) Pre-sentence Post sentence Family Law Court annexed mediation in civil matters Restorative justice in schools Restorative Justice an approach to Justice Collectively Identifying Harms, needs and Obligations Accepting Responsibilities Making Restitution Taking measures to prevent a recurrence of the incident promoting Reconciliation South Africa’s Truth and Reconciliation Commission (TRC) Reducing or preventing criminal behaviour Reducing crime victims’ post-traumatic stress symptoms and related costs Reducing crime victims’ desire for violent revenge against their offenders Providing both victims and offenders with more satisfaction with justice than the criminal justice system Structural Injustice inter-personal crime cannot be policed Inter-personal crime cannot be reduced by hard-line security measures Inter-personal crime cannot be reduced by punishment attending to the relational dimensions of justice attenting to the underlying factors that led to the commission of a crime Peacebuilding Mediation Conflict Transformation Restorative justice jurisprudence The developmental state The National Development Plan The Social Welfare White Paper Review National Policy Framework for Restorative Justice Professional social service Social movement Hate Crimes Criminal justice: Pre-trial (diversion) Pre-sentence Post sentence Family Law Court annexed mediation in civil matters Restorative justice in schools Restorative Justice an approach to Justice Collectively Identifying Harms, needs and Obligations Accepting Responsibilities Making Restitution Taking measures to prevent a recurrence of the incident promoting Reconciliation South Africa’s Truth and Reconciliation Commission (TRC) Reducing or preventing criminal behaviour Reducing crime victims’ post-traumatic stress symptoms and related costs Reducing crime victims’ desire for violent revenge against their offenders Providing both victims and offenders with more satisfaction with justice than the criminal justice system Structural Injustice inter-personal crime cannot be policed Inter-personal crime cannot be reduced by hard-line security measures Inter-personal crime cannot be reduced by punishment attending to the relational dimensions of justice attenting to the underlying factors that led to the commission of a crime Peacebuilding Mediation Conflict Transformation Restorative justice jurisprudence The developmental state The National Development Plan The Social Welfare White Paper Review National Policy Framework for Restorative Justice Professional social service Social movement Hate Crimes Criminal justice: Pre-trial (diversion) Pre-sentence Post sentence Family Law Court annexed mediation in civil matters Restorative justice in schools Restorative Justice an approach to Justice Collectively Identifying Harms, needs and Obligations Accepting Responsibilities Making Restitution Taking measures to prevent a recurrence of the incident promoting Reconciliation South Africa’s Truth and Reconciliation Commission (TRC) Reducing or preventing criminal behaviour Reducing crime victims’ post-traumatic stress symptoms and related costs Reducing crime victims’ desire for violent revenge against their offenders Providing both victims and offenders with more satisfaction with justice than the criminal justice system Structural Injustice inter-personal crime cannot be policed Inter-personal crime cannot be reduced by hard-line security measures Inter-personal crime cannot be reduced by punishment attending to the relational dimensions of justice attenting to the underlying factors that led to the commission of a crime Peacebuilding Mediation Conflict Transformation Restorative justice jurisprudence The developmental state The National Development Plan The Social Welfare White Paper Review National Policy Framework for Restorative Justice Professional social service Social movement Hate Crimes Criminal justice: Pre-trial (diversion) Pre-sentence Post sentence Family Law Court annexed mediation in civil matters Restorative justice in schools Framework for Restorative Justice Professional social service Social movement Hate Crimes Criminal justice: Pre-trial (diversion) Pre-sentence Post sentence Family Law Court annexed mediation in civil matters Restorative justice in schools Restorative Justice an approach to Justice Collectively Identifying Harms, needs and Obligations Accepting Responsibilities Making Restitution Taking measures to prevent a recurrence of the incident promoting Reconciliation South Africa’s Truth and Reconciliation Commission (TRC) Reducing or preventing criminal behaviour Reducing crime victims’ post-traumatic stress symptoms and related costs Reducing crime victims’ desire for violent revenge against their offenders Providing both victims and offenders with more satisfaction with justice than the criminal justice system Structural Injustice inter-personal crime cannot be policed Inter-personal crime cannot be reduced by hard-line security measures Inter-personal crime cannot be reduced by punishment attending to the relational dimensions of justice attenting to the underlying factors that led to the commission of a crime Peacebuilding Mediation Conflict Transformation Restorative justice jurisprudence The developmental state The National Development Plan The Social Welfare White Paper Review National Policy Framework for Restorative Justice Professional social service Social movement Hate Crimes Criminal justice: Pre-trial (diversion) Pre-sentence Post sentence Family Law Court annexed mediation in civil matters Restorative justice in schools Restorative Justice an approach to Justice Collectively Identifying Harms, needs and Obligations Accepting Responsibilities Making Restitution Taking measures to prevent a recurrence of the incident promoting Reconciliation South Africa’s Truth and Reconciliation Commission (TRC) Reducing or preventing criminal behaviour Reducing crime victims’ post-traumatic stress symptoms and related costs Reducing crime victims’ desire for violent revenge against their offenders Providing both victims and offenders with more satisfaction with justice than the criminal justice system Structural Injustice inter-personal crime cannot be policed Inter-personal crime cannot be reduced by hard-line security measures Inter-personal crime cannot be reduced by punishment attending to the relational dimensions of justice attenting to the underlying factors that led to the commission of a crime Peacebuilding Mediation Conflict Transformation Restorative justice jurisprudence The developmental state The National Development Plan The Social Welfare White Paper Review National Policy Framework for Restorative Justice Professional social service Social movement Hate Crimes Criminal justice: Pre-trial (diversion) Pre-sentence Post sentence Family Law Court annexed mediation in civil matters Restorative justice in schools Restorative Justice an approach to Justice Collectively Identifying Harms, needs and Obligations Accepting Responsibilities Making Restitution Taking measures to prevent a recurrence of the incident promoting Reconciliation South Africa’s Truth and Reconciliation Commission (TRC) Reducing or preventing criminal behaviour Reducing crime victims’ post-traumatic stress symptoms and related costs Reducing crime victims’ desire for violent revenge against their offenders Providing both victims and offenders with more satisfaction with justice than the criminal justice system Structural Injustice inter-personal crime cannot be policed Inter-personal crime cannot be reduced by hard-line security measures Inter-personal crime cannot be reduced by punishment attending to the relational dimensions of justice attenting to the underlying factors that led to the commission of a crime Peacebuilding Mediation Conflict Transformation Restorative justice jurisprudence The developmental state The National Development Plan The Social Welfare White Paper Review National Policy Framework for Restorative Justice Professional social service Social movement Hate Crimes Criminal justice: Pre-trial (diversion) Pre-sentence Post sentence Family Law Court annexed mediation in civil matters Restorative justice in schools Restorative Justice an approach to Justice Collectively Identifying Harms, needs and Obligations Accepting Responsibilities Making Restitution Taking measures to prevent a recurrence of the incident promoting Reconciliation South Africa’s Truth and Reconciliation Commission (TRC) Reducing or preventing criminal behaviour Reducing crime victims’ post-traumatic stress symptoms and related costs Reducing crime victims’ desire for violent revenge against their offenders Providing both victims and offenders with more satisfaction with justice than the criminal justice system Structural Injustice inter-personal crime cannot be policed Inter-personal crime cannot be reduced by hard-line security measures Inter-personal crime cannot be reduced by punishment attending to the relational dimensions of justice attenting to the underlying factors that led to the commission of a crime Peacebuilding Mediation Conflict Transformation Restorative justice jurisprudence The developmental state The National Development Plan The Social Welfare White Paper Review National Policy Framework for Restorative Justice Professional social service Social movement Hate Crimes Criminal justice: Pre-trial (diversion) Pre-sentence Post sentence Family Law Court annexed mediation in civil matters Restorative justice in schools Restorative Justice an approach to Justice Collectively Identifying Harms, needs and Obligations Accepting Responsibilities Making Restitution Taking measures to prevent a recurrence of the incident promoting Reconciliation South Africa’s Truth and Reconciliation Commission (TRC) Reducing or preventing criminal behaviour Reducing crime victims’ post-traumatic stress symptoms and related costs Reducing crime victims’ desire for violent revenge against their offenders Providing both victims and offenders with more satisfaction with justice than the criminal justice system Structural Injustice inter-personal crime cannot be policed Inter-personal crime cannot be reduced by hard-line security measures Inter-personal crime cannot be reduced by punishment attending to the relational dimensions of justice attenting to the underlying factors that led to the commission of a crime Peacebuilding Mediation Conflict Transformation Restorative justice jurisprudence The developmental state The National Development Plan The Social Welfare White Paper Review National Policy Framework for Restorative Justice Professional social service Social movement Hate Crimes Criminal justice: Pre-trial (diversion) Pre-sentence Post sentence Family Law Court annexed mediation in civil matters Restorative justice in schools Restorative Justice an approach to Justice Collectively Identifying Harms, needs and Obligations Accepting Responsibilities Making Restitution Taking measures to prevent a recurrence of the incident promoting Reconciliation South Africa’s Truth and Reconciliation Commission (TRC) Reducing or preventing criminal behaviour Reducing crime victims’ post-traumatic stress symptoms and related costs Reducing crime victims’ desire for violent revenge against their offenders Providing both victims and offenders with more satisfaction with justice than the criminal justice system Structural Injustice inter-personal crime cannot be policed Inter-personal crime cannot be reduced by hard-line security measures Inter-personal crime cannot be reduced by punishment attending to the relational dimensions of justice attenting to the underlying factors that led to the commission of a crime Peacebuilding Mediation Conflict Transformation Restorative justice jurisprudence The developmental state The National Development Plan The Social Welfare White Paper Review National Policy Framework for Restorative Justice Professional social service Social movement Hate Crimes Criminal justice: Pre-trial (diversion) Pre-sentence Post sentence Family Law Court annexed mediation in civil matters Restorative justice in schools Restorative Justice an approach to Justice Collectively Identifying Harms, needs and Obligations Accepting Responsibilities Making Restitution Taking measures to prevent a recurrence of the incident promoting Reconciliation South Africa’s Truth and Reconciliation Commission (TRC) Reducing or preventing criminal behaviour Reducing crime victims’ post-traumatic stress symptoms and related costs Reducing crime victims’ desire for violent revenge against their offenders Providing both victims and offenders with more satisfaction with justice than the criminal justice system Structural Injustice inter-personal crime cannot be policed Inter-personal crime cannot be reduced by hard-line security measures Inter-personal crime cannot be reduced by punishment attending to the relational dimensions of justice attenting to the underlying factors that led to the commission of a crime Peacebuilding Mediation Conflict Transformation Restorative justice jurisprudence The developmental state The National Development Plan The Social Welfare White Paper Review National Policy Framework for Restorative Justice Professional social service Social movement Hate Crimes Criminal justice: Pre-trial (diversion) Pre-sentence Post sentence Family Law Court annexed mediation in civil matters Restorative justice in schools Restorative Justice an approach to Justice Collectively Identifying Harms, needs and Obligations Accepting Responsibilities Making Restitution Taking measures to prevent a recurrence of the incident promoting Reconciliation South Africa’s Truth and Reconciliation Commission (TRC) Reducing or preventing criminal behaviour Reducing crime victims’ post-traumatic stress symptoms and related costs Reducing crime victims’ desire for violent revenge against their offenders Providing both victims and offenders with more satisfaction with justice than the criminal justice system Structural Injustice inter-personal crime cannot be policed Inter-personal crime cannot be reduced by hard-line security measures Inter-personal crime cannot be reduced by punishment attending to the relational dimensions of justice attenting to the underlying factors that led to the commission of a crime Peacebuilding Mediation Conflict Transformation Restorative justice jurisprudence The developmental state The National Development Plan The Social Welfare White Paper Review National Policy Framework for Restorative Justice Professional social service Social movement Hate Crimes Criminal justice: Pre-trial (diversion) Pre-sentence Post sentence Family Law Court annexed mediation in civil matters Restorative justice in schools Restorative Justice an approach to Justice Collectively Identifying Harms, needs and Obligations Accepting Responsibilities Making Restitution Taking measures to prevent a recurrence of the incident promoting Reconciliation South Africa’s Truth and Reconciliation Commission (TRC) Reducing or preventing criminal behaviour Reducing crime victims’ post-traumatic stress symptoms and related costs Reducing crime victims’ desire for violent revenge against their offenders Providing both victims and offenders with more satisfaction with justice than the criminal justice system Structural Injustice inter-personal crime cannot be policed Inter-personal crime cannot be reduced by hard-line security measures Inter-personal crime cannot be reduced by punishment attending to the relational dimensions of justice attenting to the underlying factors that led to the commission of a crime Peacebuilding Mediation Conflict Transformation Restorative justice jurisprudence The developmental state The National Development Plan The Social Welfare White Paper Review National Policy Framework for Restorative Justice Professional social service Social movement Hate Crimes Criminal justice: Pre-trial (diversion) Pre-sentence Post sentence Family Law Court annexed mediation in civil matters Restorative justice in schools Restorative Justice an approach to Justice Collectively Identifying Harms, needs and Obligations Accepting Responsibilities Making Restitution Taking measures to prevent a recurrence of the incident promoting Reconciliation South Africa’s Truth and Reconciliation Commission (TRC) Reducing or preventing criminal behaviour Reducing crime victims’ post-traumatic stress symptoms and related costs Reducing crime victims’ desire for violent revenge against their offenders Providing both victims and offenders with more satisfaction with justice than the criminal justice system Structural Injustice inter-personal crime cannot be policed Inter-personal crime cannot be reduced by hard-line security measures Inter-personal crime cannot be reduced by punishment attending to the relational dimensions of justice attenting to the underlying factors that led to the commission of a crime Peacebuilding Mediation Conflict Transformation Restorative justice jurisprudence The developmental state The National Development Plan The Social Welfare White Paper Review National Policy Framework for Restorative Justice Professional social service Social movement Hate Crimes Criminal justice: Pre-trial (diversion) Pre-sentence Post sentence Family Law Court annexed mediation in civil matters Restorative justice in schools Restorative Justice an approach to Justice Collectively Identifying Harms, needs and Obligations Accepting Responsibilities Making Restitution Taking measures to prevent a recurrence of the incident promoting Reconciliation South Africa’s Truth and Reconciliation Commission (TRC) Reducing or preventing criminal behaviour Reducing crime victims’ post-traumatic stress symptoms and related costs Reducing crime victims’ desire for violent revenge against their offenders Providing both victims and offenders with more satisfaction with justice than the criminal justice system Structural Injustice inter-personal crime cannot be policed Inter-personal crime cannot be reduced by hard-line security measures Inter-personal crime cannot be reduced by punishment attending to the relational dimensions of justice attenting to the underlying factors that led to the commission of a crime Peacebuilding Mediation Conflict Transformation Restorative justice jurisprudence The developmental state The National Development Plan The Social Welfare White Paper Review National Policy Framework for Restorative Justice Professional social service Social movement Hate Crimes Criminal justice: Pre-trial (diversion) Pre-sentence Post sentence Family Law Court annexed mediation in civil matters Restorative justice in schools Restorative Justice an approach to Justice Collectively Identifying Harms, needs and Obligations Accepting Responsibilities Making Restitution Taking measures to prevent a recurrence of the incident promoting Reconciliation South Africa’s Truth and Reconciliation Commission (TRC) Reducing or preventing criminal behaviour Reducing crime victims’ post-traumatic stress symptoms and related costs Reducing crime victims’ desire for violent revenge against their offenders Providing both victims and offenders with more satisfaction with justice than the criminal justice system Structural Injustice inter-personal crime cannot be policed Inter-personal crime cannot be reduced by hard-line security measures Inter-personal crime cannot be reduced by punishment attending to the relational dimensions of justice attenting to the underlying factors that led to the commission of a crime Peacebuilding Mediation Conflict Transformation Restorative justice jurisprudence The developmental state The National Development Plan The Social Welfare White Paper Review National Policy Framework for Restorative Justice Professional social service Social movement Hate Crimes Criminal justice: Pre-trial (diversion) Pre-sentence Post sentence Family Law Court annexed mediation in civil matters Restorative justice in schools Restorative Justice an approach to Justice Collectively Identifying Harms, needs and Obligations Accepting Responsibilities Making Restitution Taking measures to prevent a recurrence of the incident promoting Reconciliation South Africa’s Truth and Reconciliation Commission (TRC) Reducing or preventing criminal behaviour Reducing crime victims’ post-traumatic stress symptoms and related costs Reducing crime victims’ desire for violent revenge against their offenders Providing both victims and offenders with more satisfaction with justice than the criminal justice system Structural Injustice inter-personal crime cannot be policed Inter-personal crime cannot be reduced by hard-line security measures Inter-personal crime cannot be reduced by punishment attending to the relational dimensions of justice attenting to the underlying factors that led to the commission of a crime Peacebuilding Mediation Conflict Transformation Restorative justice jurisprudence The developmental state The National Development Plan The Social Welfare White Paper Review National Policy Framework for Restorative Justice Professional social service Social movement Hate Crimes Criminal justice: Pre-trial (diversion) Pre-sentence Post sentence Family Law Court annexed mediation in civil matters Restorative justice in schools Restorative Justice an approach to Justice Collectively Identifying Harms, needs and Obligations Accepting Responsibilities Making Restitution Taking measures to prevent a recurrence of the incident promoting Reconciliation South Africa’s Truth and Reconciliation Commission (TRC) Reducing or preventing criminal behaviour Reducing crime victims’ post-traumatic stress symptoms and related costs Reducing crime victims’ desire for violent revenge against their offenders Providing both victims and offenders with more satisfaction with justice than the criminal justice system Structural Injustice inter-personal crime cannot be policed Inter-personal crime cannot be reduced by hard-line security measures Inter-personal crime cannot be reduced by punishment attending to the relational dimensions of justice attenting to the underlying factors that led to the commission of a crime Peacebuilding Mediation Conflict Transformation Restorative justice jurisprudence The developmental state The National Development Plan The Social Welfare White Paper Review National Policy Framework for Restorative Justice Professional social service Social movement Hate Crimes Criminal justice: Pre-trial (diversion) Pre-sentence Post sentence Family Law Court annexed mediation in civil matters Restorative justice in schools Restorative Justice an approach to Justice Collectively Identifying Harms, needs and Obligations Accepting Responsibilities Making Restitution Taking measures to prevent a recurrence of the incident promoting Reconciliation South Africa’s Truth and Reconciliation Commission (TRC) Reducing or preventing criminal behaviour Reducing crime victims’ post-traumatic stress symptoms and related costs Reducing crime victims’ desire for violent revenge against their offenders Providing both victims and offenders with more satisfaction with justice than the criminal justice system Structural Injustice inter-personal crime cannot be policed Inter-personal crime cannot be reduced by hard-line security measures Inter-personal crime cannot be reduced by punishment attending to the relational dimensions of justice attenting to the underlying factors that led to the commission of a crime Peacebuilding Mediation Conflict Transformation Restorative justice jurisprudence The developmental state The National Development Plan The Social Welfare White Paper Review National Policy Framework for Restorative Justice Professional social service Social movement Hate Crimes Criminal justice: Pre-trial (diversion) Pre-sentence Post sentence Family Law Court annexed mediation in civil matters Restorative justice in schools Restorative Justice an approach to Justice Collectively Identifying Harms, needs and Obligations Accepting Responsibilities Making Restitution Taking measures to prevent a recurrence of the incident promoting Reconciliation South Africa’s Truth and Reconciliation Commission (TRC) Reducing or preventing criminal behaviour Reducing crime victims’ post-traumatic stress symptoms and related costs Reducing crime victims’ desire for violent revenge against their offenders Providing both victims and offenders with more satisfaction with justice than the criminal justice system Structural Injustice inter-personal crime cannot be policed Inter-personal crime cannot be reduced by hard-line security measures Inter-personal crime cannot be reduced by punishment attending to the relational dimensions of justice attenting to the underlying factors that led to the commission of a crime Peacebuilding Mediation Conflict Transformation Restorative justice jurisprudence The developmental state The National Development Plan The Social Welfare White Paper Review National Policy Framework for Restorative Justice Professional social service Social movement Hate Crimes Criminal justice: Pre-trial (diversion) Pre-sentence Post sentence Family Law Court annexed mediation in civil matters Restorative justice in schools Restorative Justice an approach to Justice Collectively Identifying Harms, needs and Obligations Accepting Responsibilities Making Restitution Taking measures to prevent a recurrence of the incident promoting Reconciliation South Africa’s Truth and Reconciliation Commission (TRC) Reducing or preventing criminal behaviour Reducing crime victims’ post-traumatic stress symptoms and related costs Reducing crime victims’ desire for violent revenge against their offenders Providing both victims and offenders with more satisfaction with justice than the criminal justice system Structural Injustice inter-personal crime cannot be policed Inter-personal crime cannot be reduced by hard-line security measures Inter-personal crime cannot be reduced by punishment attending to the relational dimensions of justice attenting to the underlying factors that led to the commission of a crime Peacebuilding Mediation Conflict Transformation Restorative justice jurisprudence The developmental state The National Development Plan The Social Welfare White Paper Review National Policy Framework for Restorative Justice Professional social service Social movement Hate Crimes Criminal justice: Pre-trial (diversion) Pre-sentence Post sentence Family Law Court annexed mediation in civil matters Restorative justice in schools Restorative Justice an approach to Justice Collectively Identifying Harms, needs and Obligations Accepting Responsibilities Making Restitution Taking measures to prevent a recurrence of the incident promoting Reconciliation South Africa’s Truth and Reconciliation Commission (TRC) Reducing or preventing criminal behaviour Reducing crime victims’ post-traumatic stress symptoms and related costs Reducing crime victims’ desire for violent revenge against their offenders Providing both victims and offenders with more satisfaction with justice

The authors draw on their publication in 2006, Charting Progress, mapping the future: restorative justice in South Africa to review

developments and progress since that time.

They undertake a detailed analysis of various aspects of the broader policy regime in South Africa that influences restorative justice and then proceed

with a desktop review of the current state of practice at several levels.

They express concern that proper development and implementation of restorative justice has stalled. There is no implementation plan and no attention to resourcing issues. There are significant gaps in data from

government agencies and data from civil society organisations suggest lower levels of implementation than a decade ago.

Despite the promising signs from both local and international research of the value of restorative justice processes and related programmes in contributing to crime reduction, offender reintegration and victim

empowerment, as well as the effective administration of justice in general, South Africa has failed to systemically embrace these practices.

Despite this, the authors remain cautiously optimistic in view of the fresh initiatives in schools and the emerging connections between

restorative justice and mediation in related fields. They identify a number of opportunities for strengthening and expanding practice and make

several recommendations regarding the finalisation of policy, clarification of mutual roles, public awareness, accrediting training and practitioners,

record keeping and data collection.

ABOUT THE AUTHORS

Mike BatleyMike is the co-founder of the Restorative Justice Centre, which he

continues to direct. He is a registered social worker and former probation officer. He has published a number of book chapters and articles on

restorative justice and has been quoted win superior court judgements. He was a member of the UN Expert Group Meeting on Restorative Justice in

Criminal Matters 22-24 November 2017

Ann SkeltonAnn is Professor of Law at the University of Pretoria where she holds the UNESCO Chair on Education Law in Africa. Her doctoral thesis was

on restorative justice and child justice, and she played a leading role in the development of the Child Justice Act, and in the reduction of child

detention in South Africa. She has published widely on restorative justice and on child law, and has appeared as counsel in a number of high profile

cases in the apex courts. She is a member of the UN Committee on the Rights of the Child.

First published by the Restorative Justice CentreP O Box 29516 Sunnyside, Pretoria, South Africa

[email protected]

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