Historically, African societies also focused mostly on the victims of crime, and restitution and reconciliation were considered as crucial to right the wrong caused by crime (Nsereko, 1992:21). African indigenous law places greater emphasis on peoples’ duties and rights with a strong focus on harmonious relations and reconciliation (Vorster & Whelpton, 1996:3). Traditionally, African families took collective responsibility for one another, and, in some rural areas, this is still the case (Muntingh and Monaheng 1998:13). When a matter could not be settled within the family circle, senior relatives, or community members were invited to assist with the reconciliation process. In the Eastern Cape, the Thembu people, for example, practised a philosophy of healing and reconciliation by placing the victim, the offender, and the community at the heart of the justice process (Kgosimore, 2001:41). In fact, the imprisonment of offenders did not form part of African indigenous law. It should further be pointed out that indigenous African restorative justice did not involve strangers.

Unfortunately, European colonialisation in Africa, Australia, New Zealand, and Canada repressed indigenous restorative justice in favour of a retributive justice philosphy that was hierarchical, adversarial, and punitive, guided by codified laws and rules of procedure which limited decision making to a few elite (Kgosimore, 2001:41). Retributive justice focuses on the offender, while restorative justice involves balancing the interests of the offender, the victim, and the community (Cavanagh, 1998:24). This resulted in victims of crime being largely neglected and alienated from the criminal justice process. Most Africans view their Western-based criminal justice system with suspicion and see it as a colonial legacy with few benefits for the individual, in particular the victim of crime (Naudé, 1995:9).

A Refocus on Restorative Justice

The Objectives of Restorative Justice

Braithwaite (1998:6) defines restorative justice as ‘restoring property loss, restoring injury, restoring a sense of security, restoring dignity, restoring a sense of empowerment, restoring deliberative democracy, restoring harmony based on a feeling that justice has been done, and restoring social support’. He further cites the following emerging standards for restorative justice (Braithwaite, 2002:570):

• Remorse over injustice
• Apology
• Censure of the act
• Forgiveness of the person

• Mercy
He warns, however, that it is cruel and wrong to expect a victim of crime to forgive, as apology, forgiveness, and mercy are gifts, and cites Minow (Braithwaite, 2002:570), who avers that “forgiveness is a power held by the victim and not a right to be claimed.” Cavanagh (1998:24) describes the aims of restorative justice as follows:

• Focusing on harms suffered rather than laws broken,
• Showing a balanced concern for the victim and offender and involving both in the criminal justice process,
• Working toward assisting victims through empowerment and responding to their needs,
• Supporting the offender and simultaneously helping him or her to understand, accept and carry out his/her commitments to repair the harm.

Restorative Justice Processes

Restorative justice processes can be applied in a variety of contexts at the formal and informal level. At the formal level, the criminal justice system can apply restorative justice during the pre-trial process, during the pre-sentencing process as part of a condition for sentence, or in pre-release programmes. At the informal level, it can be applied to resolve corporate conflicts and disputes as well as community conflicts such as bullying in schools, neighbourhood conflicts, family conflicts, and interstate conflicts. The South African Truth and Reconciliation Commission is an example of a national restorative justice process as it focused on restorative justice at a national level, emphasizing reparation, accountability, and forgiveness, although not all aspects of the commission’s work related to restorative justice (Naudé et al, 2002:12).
Restorative justice processes are implemented differently in different countries and regions, thereby reflecting the varying cultural norms and mores underpinning it (Umbreit, Coates & Roberts, 2000:216). Ashworth (2002:578) also points out that there is “no single notion of restorative justice, no single type of process” as it is a flexible, transportable model which varies between countries and from area to area, depending on local needs and customs. In most countries, restorative justice processes are normally an adjusted model of traditional forms of restorative justice adapted to suit a specific community, although the following universal models can be identified (Naudé et al, 2002:15ff):

Victim-offender mediation

Victims and offenders agree to communicate with the help of a trained mediator on a direct (face-to-face) basis, or indirectly via the mediator, in a safe and non-threatening environment in order to discuss all aspects of the offence and to create an opportunity to set things rights by means of direct restitution (to the victim) or indirect restitution (to a third party, e.g., the community).

Family-group conferencing

The term family-group conferencing was coined in New Zealand and is similar to victim-offender mediation but also involves support groups, such as family or community members, assisting the victim and offender in the restorative process. Family members often take collective responsibility for restitution. This process is mostly used to deal with young offenders.

Circle sentencing

This process is an indigenous practice used in parts of northern Canada and the USA and entails a community meeting to address the family and community circumstances underlying the offence. All participants are arranged in a circle to conduct the restorative process. Circle sentencing is conducted within the context of the court proceedings and has no independent legislative basis.

Crime/Victim impact panels

A victim-impact panel is made up of a group of victims and a group of offenders who are linked by a common crime although there is no direct link between a specific offender and a specific victim. The purpose of the meeting is to help victims find a resolution and to expose offenders to the harm caused by their actions in order to facilitate changes in their behaviour and attitude.
Variations of these restorative justice models have been developed, and there has also been a blending of the various models.

Restorative Justice Practices in South Africa

The National Crime Prevention Strategy (RSA, 1996:6-7) adopted in 1996 sets out the government’s intent to move from a retributive to a more victim-centered criminal justice system. In terms of National Programme 1.9 (RSA, p. 65), the aim is to develop and modify the criminal justice process by

• “Addressing the negative effects of criminal activity on victims through programmes which mediate these effects and provide support and skills to address them;
• “Providing a meaningful role for the victim in the criminal justice process;
• “Making the criminal justice system more sensitive and service oriented towards victims;
• “Enhancing the accessibility of the criminal justice system to victims.”

Although article 300 of the Criminal Procedure Act (1977) makes provision for the payment of compensation to victims of crime at the request of the prosecutor or the victim, and article 297 provides for the suspension or postponement of a sentence if the offender compensates the victim for losses suffered, these options are seldom used by South African courts (Naudé, 1995:70). The act also makes provision for diversion as a sentencing option.

The fact that in 2004 South African prisons were grossly overcrowded with 184,806 prisoners held in cells designed to hold 114,747 (70,000, or 62% above capacity) indicates that the South African judiciary is very punitive oriented. Approximately four out of every 1,000 South Africans are in prison and about 80% of prisoners serve less than five years in prison (Fagan, 2004:1). Research furthermore found that more than 80% of South African prisoners re-offend within five years of their release which confirms that rehabilitation programmes in prison are largely unsuccessful (Naudé et al, 2002:67). It is therefore important that other sentencing options be explored in an attempt to prevent re-offending.

The Probation Services Amendment Act (2002) makes provision for family group conferencing as a diversion or sentencing option. According to the act, restorative justice “means the promotion of reconciliation, restitution and responsibility through the involvement of a child, and the child’s parents, family members, victims and the communities concerned” while diversion means “diversion from the formal court procedure with or without conditions…within the context of the family and community in respect of a person who is alleged to have committed an offence; and which is aimed at keeping that person away from the formal court procedure.”

The proposed Sentencing Framework Bill, the Sexual Offences Bill and the Child Justice Bill also make provision for restorative justice processes.

The Restorative Justice Centre (RJC) in Pretoria, a registered, non-profit organisation, undertook a restorative justice pilot project involving 42 cases for the Inter-ministerial Committee on Young People at Risk during 1996 and 1997, which was one of the first official initiatives to give effect to the government’s new policy of a more restorative, justice-oriented, criminal justice process. The project involved testing the feasibility of the New Zealand model of family-group conferencing in the South African context with a view to incorporating it in the Child Justice Bill. At the end of 2002, the RJC secured some funding from the Gauteng Department of Social Services and Population Development to implement a diversion programme for young offenders and to provide victim-offender mediation services for adults. Despite briefing senior staff members at the Pretoria and Pretoria North Magistrates’ Courts, referrals remain relatively low (Naudé et al, 2002: Introduction). Three pilot victim-offender conferencing projects were also initiated in Westbury, West Rand, and Alexandra in Gauteng Province in 1999 under the guidance of the Centre for the Study of Violence and Reconciliation (Dissel, 2001:20ff). A pilot project was also initiated in the Greytown magistrate’s court in 1999, with the emphasis on compensating the victim for the loss suffered as a result of the crime (Van Rooyen in Dissel, 2001:19). The Institute for the Prevention of Crime and the Rehabilitation of Offenders (NICRO), another registered non-profit organisation, which has a number of offices nationally, has also been involved in family group conferencing and victim-offender mediation projects since the late 1990s and the Community Dispute Resolution Trust and the Community Peace Foundation in the Western Cape are further examples of restorative justice initiatives in South Africa by means of alternative dispute resolution (Naudé et al, 2002:3).

In November 2004, the Department of Justice and Constitutional Development also declared its intent to use restorative justice more actively as an approach in the rehabilitation of offenders by training probation officers and making magistrates and prosecutors aware of the value of restorative justice sentencing options. This is important in the light of a study conducted by the Institute for Criminological Sciences at the University of South Africa in collaboration with the Restorative Justice Centre, Pretoria, to assess criminal justice officials’ views of restorative justice. Magistrates and prosecutors play an important role in giving effect to the government’s current policy of a more restorative justice oriented criminal justice process.

The survey was undertaken during the period September 2001 to April 2002 concerning the magisterial offices of Pretoria, Pretoria North, Soshanguve, Ga-Rankuwa, Temba, and Mamelodi. A total of 205 questionnaires were distributed to all prosecutors and magistrates to be completed anonymously. Seventy three (36%) of the 205 questionnaires were returned, of which 69 (34%) could be used.

As regards the primary objectives of restorative justice, most respondents agreed with the objectives as set out in Table 1.

Although one of the most important aims of restorative justice is to focus on the harm suffered rather than laws broken, only 51% of the respondents agreed with this aim indicating a rather limited understanding of the objectives of restorative justice.
As regards restorative justice as a sentencing option, 62.3% of the respondents agreed that restorative justice is an appropriate sentence as the courts must consider the victim’s needs by creating an opportunity for them to experience restitution and healing. Forty-six percent also agreed that restorative justice was appropriate only if proper guidelines and an ethical code of conduct were in place.

The respondents were, however, quite uncertain about restorative justice as a sentencing option. Although most thought it would assist victims with restitution and healing, few believed that restorative justice is an appropriate sentence for several types of crime as is evident from the responses as reported in Table 2.

It is clear that prosecutors and magistrates should be trained that restorative justice is an important sentencing option which can be applied at the pre-trial, pre-sentence and post-sentence stage as many did not support restorative justice as a sentencing option for a number of crimes. There seems a high level of uncertainty about how to apply restorative justice at the sentencing stage.

When asked about the outcomes of restorative justice, the responses were very positive as is evident from Table 3.

As the above aspects are key objectives of restorative justice, it is encouraging that the majority of magistrates and prosecutors agree on these outcomes.
Less than 50% of the respondents agreed with the following statements indicating that magistrates and prosecutors are likely to be receptive to the benefits of restorative justice:

• It can reduce the decision-making powers of the judiciary 36.2%
• It can downscale the criminal justice process, as it can be seen as a “soft option” to deal with the crime problem 34.8%
• It can contribute to overprotection of the victim 24.6%

When asked about criticisms leveled at restorative justice processes, most respondents were uncertain, with the exception of three categories in which 66.7% agreed that inadequate community resources could render restorative justice ineffective, 55.1% expressed the view that offenders may see it as an easy option to avoid imprisonment, and 52.2% agreed that restorative justice could create unrealistic expectations in victims. Table 4 reflects the responses.

A number of international research studies have refuted these criticisms (Naudé et al, 2002:18ff) and it is therefore encouraging that only about a third of the respondents agreed with these negative statements. Training and information will probably change these negative perceptions.

Asked whether they had ever applied for or recommended restorative justice options in their court, the responses were as follows:

• Community service 61%
• Youth/child diversion 55%
• Family group conferencing 20%
• Victim-offender mediation 17%
• Adult diversion 13%
• Other (compensation orders) 7%

Given the fact that restorative justice sentencing options are fairly new in South Africa, it is encouraging that so many family group conferencing and victim-offender mediation are currently used by the courts. One explanation may be the fact that the Restorative Justice Centre is based in Pretoria and the percentage is probably much lower in the rest of the country. This nevertheless indicates that proper training and information will possibly increase the use of restorative justice processes. The low use of compensation orders, despite the fact that the Criminal Procedure Act makes provision for it, is in line with previous research findings, and it is difficult to explain why it is not used more frequently.

Conclusion

There has been a refocus on ancient restorative justice practices in most Western countries since the 1970s which has not yet found its way into African criminal justice systems. The South Africa government is in the process of moving from a retributive to a more victim-centered criminal justice system, and magistrates and prosecutors can play a crucial role in this regard. A survey found that they are receptive to restorative justice processes although they are also uncertain about many aspects of restorative justice, especially at the sentencing level, and it is therefore important that they be informed and trained properly as regards the objectives and outcomes of restorative justice. At the same time a survey in the Pretoria area found that a surprising number of magistrates and prosecutors already use restorative justice sentencing options which can probably be ascribed to the fact that the Restorative Justice Centre and NICRO are operating in the Pretoria area in which the survey was conducted. This means that, with proper training and information, South African magistrates and prosecutors will probably be receptive to restorative justice as a sentencing option.

Notes

Braithwaite, J. 1998. “Restorative justice: Assessing optimistic accounts.” Crime and Justice, 25:1-127.
Braithwaite, J. 2002. “Setting standards for restorative justice.” British Journal of Criminology, 42(3):563-577.
Cavanagh, T. 1998. “Adopting new values for courts: What is restorative justice?” The Court Manager, 13(2):24-27.
Dissel, A. 2001. “Restoring the harmony between victims and offenders.” Paper delivered at the Conference on Restorative Justice and Community Facilitation, Johannesburg, 8-9 November, pages 19-32.
Fagan, H. 2004. “Curb the vengeance. Laws on minimum sentencing and parole spell worsening prison conditions.” SA Crime Quarterly, No 1, December 2004:1-5.
Kgosimore, D. 2001. “Restorative justice as an alternative way of dealing with crime.” Paper delivered at the Conference on Restorative Justice and Community Facilitation, Johannesburg, 8-9 November, pages 41-47.
Muntingh, L. & Monaheng, A. 1998. “Family matters: How young offenders’ families engage in restorative justice.” Track Two, 7(3):13-14.
Naudé, C.M.B. 1995. “An international perspective on victim participation in the criminal justice process with specific reference to victim impact statements.” Unpublished research report. Department of Criminology, University of South Africa. Pretoria: UNISA.
Naudé, C.M.B., Prinsloo, J.H., Ladikos, A. & Setlatjile, A.N. 2002. “An exploration of restorative justice practices with specific reference to the Tswane Metropolotian Area, South Africa.” Unpublished research report. Institute for Criminological Sciences, University of South Africa. Pretoria: UNISA.
Nsereko, N. 1992. “Victims of crime and their rights” in Criminology in Africa, edited by M. Mushanga. Rome: UNICRI.
Republic of South Africa. 1996. National Crime Prevention Strategy. Pretoria: Ministry of Safety and Security.
Roach, K. 2000. “Changing punishment at the turn of the century: Restorative justice on the rise.” Canadian Journal of Criminology, 42(3):249-279.
Vorster, L.P., and Whelpton, F.P.v.R. 1996. Indigenous Law. Pretoria: UNISA.