ISS MONOGRAPH No 111 A joint publication with the Restorative Justice Centre Restorative justice is a way of dealing perceptions – for using restorative with victims and offenders by focusing justice methods in the day-to-day on settling the conflicts arising from handling of criminal offences. In doing crime, resolving the underlying so, the main challenge will be providing problems that cause it, and thereby effective training on the aims, outcomes healing all those affected. The and applications of restorative justice for community, rather than just the police, all those involved in the process. courts and prisons should be allowed a space in the formal justice process to take responsibility for controlling crime. Currently, however, the criminal justice system rarely provides this opportunity. This monograph argues that inter- nationally, restorative justice has been carefully considered and a high degree of consensus about the approach exists. South Africa is now well positioned – in terms of the policy environment, The Royal Danish Embassy funded the BEYOND RETRIBUTION existing practice as well as practitioners’ production of this monograph. PROSPECTS FOR RESTORATIVE JUSTICE IN SOUTH AFRICA EDITED BY TRAGGY MAEPA The vision of the Institute for Security Studies is one of a stable and peaceful Africa characterised by human rights, the rule of law, democracy and collaborative security. BEYOND RETRIBUTION As an applied policy research institute with a mission to conceptualise, inform and enhance the security debate in Africa, the Institute supports this vision statement by PROSPECTS FOR RESTORATIVE undertaking independent applied research and analysis; facilitating and supporting policy formulation; raising the JUSTICE IN SOUTH AFRICA awareness of decision makers and the public; monitoring trends and policy implementation; collecting, interpreting and disseminating information; networking on national, EDITED BY TRAGGY MAEPA regional and international levels; and capacity-building. A joint publication with the Restorative Justice Centre © 2005, Institute for Security Studies Copyright in the volume as a whole is vested in the Institute for Security Studies, 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 Institute, its Trustees, members of the Advisory Board, or donors. Authors contribute to ISS publications in their personal capacity. ISBN: 1-919913-75-0 First published by the Institute for Security Studies, P O Box 1787, Brooklyn Square 0075 Pretoria, South Africa Cover picture: Restorative Justice Centre Design and layout: Image Design +27 11 469 3029 Printing: Cedilla +27 11 683 1302 ISS MONOGRAPH SERIES • NO 111, FEB 2005 CONTENTS LIST OF TABLES AND FIGURES 3 AUTHORS 6 ACKNOWLEDGEMENTS 8 EXECUTIVE SUMMARY 9 PART 1: CONTEXT CHAPTER 1 15 Introduction Traggy Maepa CHAPTER 2 21 Restorative justice in the South African context Mike Batley CHAPTER 3 33 International experiences and lessons Mike Batley and Janet Dodd CHAPTER 4 43 Victims’ views: insights from an inner-city victim survey Ted Leggett CHAPTER 5 53 Magistrates’ and prosecutors’ views of restorative justice Beaty Naudé and Johan Prinsloo PART 2: RESTORATIVE JUSTICE IN PRACTICE CHAPTER 6 66 The Truth and Reconciliation Commission as a model of restorative justice LIST OF TABLES AND FIGURES Traggy Maepa CHAPTER 7 76 CHAPTER 4 Diversion: a central feature of the new child justice system Buyi Mbambo FIGURE 1 45 After the crime, what was most important to the victims? CHAPTER 8 89 (Total all crimes) Piloting victim–offender conferencing in South Africa Amanda Dissel FIGURE 2 46 ‘If it were possible, which of the following would you be interested in?’ CHAPTER 9 104 (Total all crimes) Alternative sentencing in South Africa: an update Lukas Muntingh FIGURE 3 47 Robbery victims’ priorities after the crime PART 3: POLICY ISSUES FIGURE 4 48 CHAPTER 10 120 Robbery victims’ outcome preferences Outline of relevant policies FIGURE 5 49 Mike Batley Burglary victims’ priorities after the crime CHAPTER 11 127 FIGURE 6 49 The Child Justice Bill from a restorative justice perspective Burglary victims’ outcome preferences Ann Skelton FIGURE 7 50 CHAPTER 12 136 Assault victims’ priorities after the crime Conclusion and recommendations Traggy Maepa and Mike Batley FIGURE 8 51 Assault victims’ outcome preferences NOTES 143 CHAPTER 5 APPENDIX 1 150 United Nations Economic and Social Council: Basic principles on TABLE 1 55 the use of restorative justice programmes in criminal matters The primary objectives of restorative justice are… (%) (n=69) 4 Beyond Retribution – Prospects for Restorative Justice in South Africa List of Tables and Figures 5 TABLE 2 56 TABLE 6 114 Restorative justice as a sentencing option is appropriate…(%) (n=69) Offence profile of probationers, July 2000 TABLE 3 58 TABLE 7 115 Restorative justice can contribute to… (%) (n=69) Community corrections statistics – cases sentenced, admitted and converted, 2001 TABLE 4 60 Restorative justice can be problematic because… (%) (n=69) FIGURE 1 109 Length of prison sentences, 1998 and 2004 TABLE 5 61 The government is committed to restorative justice because…(%) (n=69) FIGURE 1 63 ‘Have you ever applied restorative justice options in court by recommending…?’ CHAPTER 8 TABLE 1 92 Charges made against offenders FIGURE 1 94 Relationship between victim and offender CHAPTER 9 TABLE 1 107 Community service order offence profiles, Cape Town, 1983-1994 TABLE 2 110 Comparison of prison sentence profile by admissions and day count TABLE 3 111 Sentence profile, 1995/96 TABLE 4 113 Persons under correctional supervision and absconders TABLE 5 114 Children under correction supervision, December 2001 Authors 7 Buyi Mbambo is the project officer on child protection at UNICEF in Pretoria. She has extensive experience in child protection, community and youth development, family preservation, and human as well as children’s rights. She assisted the SA Law Reform Commission in the development of the Children’s AUTHORS Bill and has been involved in numerous policy reform initiatives relating to children and families. Before joining UNICEF, Buyi worked for the United Nations Child Justice Project to promote the Child Justice Bill and the use of diverse models of diversion and alternative sentencing. She is a qualified Mike Batley is the executive director of the Restorative Justice Centre (RJC) and social worker with a MA (Social Science) from the University of KwaZulu- one of its co-founders. He has worked as a probation officer and chaired the Natal. Inter-Ministerial Committee Pilot Project on Family Group Conferencing. Mike has extensive experience in restorative justice as well as managing the Lukas Muntingh is the deputy executive director of NICRO, and co-manager implementation of policy, including the poverty relief programme and the of the Civil Society Prison Reform Initiative (CSPRI), a joint initiative of NICRO financing of NGOs. He has a social work degree from UNISA. and the Community Law Centre at the University of the Western Cape. Lukas Amanda Dissel is programme manager of the Criminal Justice Programme (CJP) has been involved in criminal justice reform for the past ten years, has at the Centre for the Study of Violence and Reconciliation. She works in the undertaken child justice work in Southern Africa, and has published on child fields of policing, corrections and human rights. She is responsible for the justice and offender reintegration. He holds a Masters degree in Sociology research component of the Restorative Justice Initiative’s Victim Offender from the University of Stellenbosch. Conferencing project. Beaty Naudé was head of the department of criminology at the University of Janet Dodd worked at the Restorative Justice Centre from March 2001 until South Africa at her retirement in 1999 and is currently emeritus professor and December 2002 as the project manager for training and victim-offender research fellow in criminology at UNISA. She serves on the editorial and conferencing. She gained experience in community and psychiatric social work advisory boards of various international and national journals and is the while at Pretoria Mental Health, and has experience in training, counselling and author and co-author of 128 research publications. She has received a group work from her involvement with the Students’ Christian Organisation number of awards for her contributions and community work relating to the based at the University of Witwatersrand. Janet qualified with a social work criminological sciences. degree from Rhodes University. Professor Johan Prinsloo is the director of the Institute for Criminological Ted Leggett works in the research section of the United Nations Office on Drugs Sciences at the University of South Africa. He holds a doctorate degree in and Crime in Vienna. At the time of writing, Ted was a senior researcher at the criminology from the University of South Africa. Institute for Security Studies’ Crime and Justice Programme. His professional background includes police work, prosecution, and social work. He holds the Ann Skelton is a human rights lawyer who has specialised in the rights of degrees of Juris Doctor from New York University School of Law and a Masters children in the criminal justice system. Ann has been at the forefront of efforts of Social Science in Development Studies from the University of Natal, Durban. to reform the juvenile justice system in South Africa, and in this role has consistently promoted restorative justice solutions. She has worked for Traggy Maepa is currently employed as a senior analyst in the criminal justice Lawyers for Human Rights and for the United Nations at both national and and security sector in South Africa. At the time of writing, Traggy was a international level. She is currently based at the Centre for Child Law at the researcher and process facilitator in the Crime and Justice Programme at the University of Pretoria. Institute for Security Studies, where he was involved in various crime prevention research, facilitation and evaluation processes.