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21 September 2006

Programme Director,
Distinguished guests,
Ladies and gentlemen,

I would also like to apologise on behalf of Minister Mabandla, in whose stead I speak here today, for her absence, due to a recent operation. It is both an honour and a great pleasure for me to address you at this conference. I would also like to welcome everyone, but especially our visitors from abroad, who will be sharing their experiences with us on restorative justice. From the programme it is clear that the objective of this two-day conference is to encourage a discussion on the politics of restorative justice and hopefully the broadening and further entrenchment of restorative principles, in a democratic South Africa. This is an important event as it addresses a very topical and exciting theme for those of us in the justice family. I look forward to the outcome of the conference as a possible stimulus for further transformation of our justice system.

Ladies and gentlemen,

It is often said that we South Africans, at a very early state of our new-found democracy, with the establishment of our Truth and Reconciliation Commission (TRC), in 1995, made use of many new mechanisms which are restorative justice, rather than retributive justice, in nature. Broadly speaking, I agree with this view, but as with all generalisations such a statement does not reflect the whole truth. I commence my talk with a very brief analysis of our TRC, in relation to its possible or potential role in the genesis of restorative justice principles within our legal system.

As a consequence of centuries of colonialism and apartheid, including decades of conflict, in South Africa, we were faced by a stark choice between two broad, flexible, somewhat imprecisely defined and mutually exclusive models that had been developed in international jurisprudence and practice to deal with past violations in transitional societies. These were the justice model and the reconciliation (or truth) model. The justice model addresses the question of prosecution and punishment, with elements of retributive justice and criminal accountability, forming its central tenets. The reconciliation model has elements of restorative justice, like (acknowledgement of) truth and (seeking) reconciliation, forming its central tenets – of which the truth commission is the most often-used mechanism in modern times. The difficult choice we countenanced at the time between these models was echoed in the warnings of Adam Michnick who observed that:

"On the road out of dictatorship, each solution has its price. The road of justice which often turns into the road of revenge and war has bloodshed as its price. But the road through negotiations and reconciliation has its price too. When you get up from the negotiating table you may have to defend your former enemy, now your partner, from a lynch mob. In truth what you are defending is the principle that all citizens have the right to live in the same state."

In democratic South Africa, from the outset, we found that there was a compelling need for the moral reconstruction of our country. Neither of these models seemed appropriate to the needs of and the challenges facing our evolving society. We needed to identify a mechanism that would enable our nation to deal with its psychological or moral healing, and to lay a foundation for the moral reconstruction of our society. This particular process of healing, of course, is highly personalised in the one sense, but also has an important public dimension as the nation as a whole needs to come to grips with our violent past. One of the ways to start the healing process in South Africa was to embark on an honest assessment and diagnoses of the sickness within our society, by giving our people, both perpetrators and victims, an opportunity to face the past and its consequences, and to start afresh.

It is in this context that the possible creation of a truth commission (of a special type) offered us one such opportunity to deal with the past without dwelling on it and to establish the moral foundation, based on a different form of accountability, from which to build a truly new South Africa.

This gave rise to the idea of a TRC, which was established in 1995, with the passing of the Promotion of National Unity and Reconciliation Act. The establishment of the TRC marked a unique moment in world history, in that it was the first time that a nation had created a truth commission through a public, participatory and democratically elected verifiable process, by way of an Act of Parliament. The TRC, also in many respects, featured unique and historic characteristics which individually, collectively or contextually had never been utilised in the context of a truth commission. Suffice to say, that our approach was for the first time ever to contextualise an (individualised) amnesty process, within the framework and context of a truth commission, so as to focus in a balanced and reconciliatory manner on the restoration of dignity, honour and integrity of the victims of apartheid, whilst at the same time giving effect to the constitutional provision of providing for an amnesty process.

The South African model is strongly founded on restorative justice principles, with important elements of retributive justice retained. The model is a combination of the "judicial sledgehammer" which is the justice driven possibility of ongoing prosecutions until and only if amnesty is granted; the "TRC stick", investigations of human rights violations which is the victim driven possibility of being named publicly as an alleged perpetrator and investigated under wide investigative powers; and the "amnesty carrot" which is the perpetrator driven incentive of amnesty in return for full and truthful public acknowledgement of politically motivated violations, this combination forming a potent triad designed as a creative multi-pronged approach for attainment of the truth by flushing out violators of human rights who adopted a "wait and see" approach and to break the usual hegemony and conspiracy of silence which is endemic in security forces operating under authoritarian rule. The South African model was the first ever to achieve this objective.

Twin goals are met through this model, the flipside of the same coin providing victims with a soft place to deal with hard issues; providing perpetrators with a hard place to receive softer results. For the perpetrator, it may be "softer" justice, but they would remain between a rock and a hard place with the need for full public acknowledgement. In the process, justice is not only done. It is seen to be done. It is restorative justice in the essence, but it also contains elements of retributive justice in that the truth is told, lies are being exposed and the perpetrators are becoming known. It may not be perfect justice; but then justice does not exist in its perfect state and compromises have to be made for the greater collective good or to avoid even greater wrongs.

In the end, in my opinion, we opted for a Restorative or Social Justice Model that contains essential elements of both models. The final formula, at best, has created a new and unique model which has charted a possible road between the reconciliation versus justice model dichotomy, and, at least, a unique variant of either model. For want of a better phrase a restorative justice model or social justice model, being an innovative hybrid of all those essential elements of both the reconciliation and justice models, which were found to be applicable to our peculiar set of circumstances.

The basic concept of the South African way is captured eloquently in the words of Prof Werle:

"Inner unity requires reconciliation and this in turn requires the public recognition of the historical truth. Those who are meant to forgive must know what they are forgiving. It is therefore insufficient to establish the historical truth in merely an abstract manner. Instead, the violence of the past and its causes must be named, the suffering of the victims concretely established. Truth has precedence over punishment, but also over amnesty. Acknowledgement legitimises amnesty, silence excludes it. Punishment can, to a certain extent, be negotiated. The truth cannot. This is South Africa's message to societies in transition. There is no reconciliation without the truth."

In my view, South Africa, in 1994, began a journey to deal with the pathology of her past with the possibility of reconciliation without justice; or with the possibility of justice without reconciliation: she ended with reconciliation with justice.

From a restorative justice perspective, there are several lessons, both positive and negative, that can be learnt from the TRC process. I mention but a few. On the positive side: the TRC was a bold model of predominantly restorative justice principles, innovatively and in a mutually complimentary manner, crafted into a model based on retributive justice principles, of which some elements may now usefully be imported into our justice system. It made a substantial contribution towards breaking the culture of silence and non-accountability that characterised the apartheid years. By giving many victims the opportunity to come forward and tell their stories, they could at least find comfort in knowing that they were not alone in their suffering. The amnesty process succeeded in making some offenders more accountable for their actions and more aware of the harmful effects of their deeds on the victims and the community. It helped establish (at least a partial) common memory of past violence we unleashed upon each other. On the negative side very few perpetrators directly apologised and offered restitution to survivors, causing some frustrated victims to make strong statements that there can be no reconciliation without justice, especially in light of what some regard as inadequate compensation for past hurts.

Although it is undoubtedly so that the TRC will always proudly stand out as a shining beacon of the triumph of the human spirit over adversity, we must continuously strive to maintain a balanced perspective in respect of the role and value of the TRC in addressing the legacy of the past, especially in achieving or promoting reconciliation, as well as the extent to which it broadened or even entrenched restorative justice principles in a seriously deficient justice system. It should neither be underemphasised nor overemphasised. It needs to be emphasised that the TRC was but one mechanism we pursued in order to enable us to address but one moral aspect of the legacy of our past, namely the gross violations of human rights committed between 1 March 1960 and 10 May 1994.

Ladies and gentlemen,

Restorative justice, in general, and in particular as utilised during the South African TRC process, is essentially a forward-looking, inclusive, healthy, life-giving process. It allows for the building of reconciliation through addressing the hurts and the needs of both victims and offenders in such a way that both parties, as well as the communities which they are part of, are healed. Unlike the traditional and conventional programmes and sanctions that focus on punishing the offenders, restorative justice responses are directed at repairing harm involving all the role-players. Although there are a number of definitions of restorative justice, they all contain the following three principles:

* Crime is seen as something that causes injuries to victims, offenders and communities. It is in the spirit of ubuntu that the criminal justice process should seek the healing of violations, the redressing of imbalances and the restoration of broken relationships.
* Not only government, but victims, offenders and their communities should be actively involved in the criminal justice process at the earliest point and to the maximum extent possible.
* In promoting justice, the government is responsible for preserving order and the community, and is responsible for establishing peace.

On the other hand, the conventional or traditional mechanisms for dispute-resolution in the justice system, like ordinary criminal and civil courts, inquests and commissions of inquiry, do not necessarily discover the truth. Civil and criminal processes are prohibitively expensive, slow, selective, limited in scope, and, not transparent and unpredictable. The ordinary rules of evidence in a court of law often serve to exclude, rather than admit, information. The mere threat of a civil claim or criminal prosecution often produces an impenetrable screen of lawyer-driven obfuscation. The justice system, therefore, often inhibits the achievements of many of the benefits of truthfulness. Truth and justice are traded off in the hurly-burly of practise, strange badpersons indeed, if badpersons at all.

A formidable phalanx of legal and other obstacles shuts out, or at least, undermines the attainment of accountability through the justice system. Yet, the most important human factor is the hurt and humiliation that many have suffered, and the inability of courts to bring some relief to that hurt or humiliation. Our adversarial justice system is designed like a chess game. It consists of a series of manoeuvres, sometimes inexplicable and unrelated, evolving around a principle of guilt beyond reasonable doubt or proof on a balance of probabilities. In the process, much is left unsaid, even more is obfuscated, little is proven.

Ladies and gentlemen,

The introduction of democracy in South Africa has brought with it new responsibilities and challenges in transforming a justice system that had been designed to serve the needs of a small minority, to one that extended services to all the people of South Africa. Unfortunately, there is very little consideration given to this challenge in many public debates and the debates have at times even lost sight of the transformational obligations we have under our new Constitution.

We acknowledge that many people have become disillusioned with the court system, but some of the reaction is based on a misunderstanding of the role of courts. Courts resolve civil or criminal disputes by providing a binding decision-making process where an independent and unbiased decision-maker, the judge, makes a decision by applying legal and equitable principles to his or her findings of fact. The court system is adversarial and governed by quite strict rules of pleading and of evidence. In the court system, generally speaking, disputes have to be legally classified into one cause of action or another.

Generally, our courts do a good job. The problem is that the needs that are satisfied by the court model are not necessarily the needs of the concerned parties. The problem is not with the courts, so much as with what people expect the courts to do. Looked at in this way, it is no wonder that sometimes parties walk away from the court system wondering whether they have really been heard when issues that matter the most to them are ignored by the neutral third party. It is also no wonder that the decision is challenged and parties try to find ways to avoid the results of the decision. The courts "resolve" but they do not "solve" disputes: they decide who is right and who is wrong on the legal entitlements on the specific facts before the Court. This is a very important role in our society. Unfortunately, over and above dissatisfaction about the time and expense of civil litigation or the frustrations pertaining to criminal trials, the end result leaves many parties unhappy because the Court system has not been responsive to their needs for a solution, not a resolution.

Ladies and gentlemen,

In its broad context the concept of transformation implies an accessible, effective, efficient and professional judicial system which has legitimacy in the eyes of the people. What was clear from the outset, upon attainment of our democracy, was that the administration of justice was in need of drastic and fundamental change; and not change for the sake of it but because people want a more responsive and accessible system of justice which is within reach of and caters for the needs of the ordinary person.

Our current integrated justice system simply cannot deal with its heavy workload in the required efficient, speedy and affordable manner that will provide justice to both victim and perpetrator in a formal court setting alone. Furthermore, in order to heal the wounds caused by disputes or crime, there has to also be a process that provides opportunities for mediation, dialogue, negotiation and problem-solving, with the victim and the community at the centre of the process. This is why restorative justice processes are so crucial.

From the viewpoint of the Department of Justice and Constitutional Development, we embrace and support restorative justice in the context of our objectives under Access to Justice for All, which provides an opportunity to attempt to resolve the underlying cause of problems rather than repeatedly dealing with the symptoms. Areas which immediately spring to mind and which historically have proved difficult for my department to deal with, include children in conflict with the law and family law generally.

In general, restorative justice in the area of criminal law represents a fundamental and ultimately progressive shift in how we view a criminal act. No longer should we only view crime as an act only against the state, but one done primarily against an individual and a community. In other words, those personally harmed by the wrongful act. As a result, victims should be provided with the opportunity to obtain recognition and validation of their experiences, while offenders are encouraged to take responsibility for their actions. According to Mike Batley, an authority on restorative justice in South Africa, restorative justice can add significant value to the practice and experience of criminal justice in South Africa at present, in at least two ways:

* Restorative justice can provide a practical, coherent and sound response to the moral challenge presented by crime and the focus given by the Moral Regeneration Movement.
* This form of justice offers a practical way for families and communities to get involved in responding to crime and to heal its effects. In this sense, it enriches democracy and provides an avenue for the expression of participatory democracy.

I agree with this, because if crime destroys communities, it can also be used as an opportunity to build communities. Restorative justice provides a sound framework within which to do this.

In the area of civil law, my department supports the promotion of Alternative Dispute Resolution (ADR) mechanisms, which are to a large extent based on restorative justice principles. At this point it is perhaps opportune to briefly reflect on these concepts. ADR refers to a collection of procedures or mechanisms to resolve especially civil disputes. These various mechanisms are "alternative" to those court procedures that have gained an unfortunate reputation for being protracted, expensive and risky. Thus, the ADR model is much more flexible than the court system. It provides a spectrum of mechanisms and it may even employ some of the best aspects of the court system to achieve other objectives and satisfying other needs. ADR is not a new phenomenon, but has a long history. Over the centuries people have used clergy, philosophers, teachers, elders and tribe or community leaders, among others, to mediate, facilitate, evaluate, arbitrate and adjudicate disputes. In contemporary times, mediations in family law have been used since the mid-1980s.

Ladies and gentlemen,

As we transform our society, especially our justice system, it is obvious that we can draw on a well-established international body of knowledge and experience, as well as our own experiences like the TRC, about restorative justice. In this regard the remarks of former President Nelson Mandela, when launching a reintegration programme for offenders, in Cape Town, in 1998, are apposite:

"The deep concern that we all feel about crime and particularly about violent crime calls for creative strategies of many kinds to rebuild the nation's soul. Such strategies can only be devised when all South Africans join hands to create the kind of society we want for our children a society where people feel safe to roam our streets freely; where they do not lack basic human needs like food or employment; and where they treat fellow human beings with respect and dignity."

In this context, the latest developments in our jurisprudence around the concept of ubuntu are also very encouraging and are a further sign that the institutionalisation of the principles of restorative justice is gaining ground in our country. The South African courts have dealt with the importance of the concept of ubuntu in our understanding of justice. In the constitutional court case of Makwanyane, which dealt with the abolition of the death penalty, Langa J described ubuntu as "a culture which places some emphasis on communality and on the interdependence of members of a community." He went on to explain that ubuntu recognises a person's status as a human being, entitled to unconditional respect, dignity, value and acceptance from the community to which he or she belongs.

It also invokes a corresponding duty of that person to give the same respect, dignity, value and acceptance to all others in that community. Thus, it regulates the exercise of rights by stressing co-responsibility and the mutual enjoyment of rights by all. He concluded by saying that the dominant theme of the culture "is that the life of another person is at least as valuable as one's own. Respect for the dignity of every person is integral to this concept". Other judges in the same judgment talked about ubuntu, linked with the constitutional understanding of human dignity.

More recently, ubuntu, this time expressly linked with restorative justice, has been mentioned again in the Constitutional Court case of Dikoko. In a minority judgment of the court, Justice Mokgoro talks about the importance of ubuntu and the principles of restorative justice. Justice Sachs in a separate but concurring judgment also speaks of ubuntu and its resonance with restorative justice. He describes the elements of restorative justice as being encounter, reparation, reintegration and participation.

Ladies and gentlemen,

Finally, my department is in the process of establishing a policy framework regarding our court structures, including aspects such as ADR and other restorative justice mechanisms. However, I wish to point out that we also need to be realistic; restorative justice and more specifically the ADR model has its own shortcomings. Just to mention two of these, this model can be expensive as the concerned parties have to pay for legal representatives, mediators and the facilities used for the mediation process. There are also no precedents that are binding. Having said that, this conference gives us an opportunity to look back and reflect on the restorative justice aspects of the TRC processes, whilst simultaneously looking forward at the future of restorative justice, including ADR mechanisms, in South Africa.

To conclude, I leave with you the reflections by Professor Kader Asmal, MP, during a debate on the Truth and Reconciliation report, in Parliament, on 15 April 2003:

"Let us not forget, honourable members, that the path we chose in 1994, that of constitutional and peaceful regime change, achieved with little civil strife and disruption to family and community life, paved the way for reconciliation, without the compelling need to exact vengeance and retribution. This has placed a moral obligation on us, in the words of the Constitution, 'to heal the divisions of the past and establish a society based on democratic values, social justice and fundamental human rights'. This we can only achieve if we continue to commit ourselves, whatever our differences, to the total reconstruction and national development of our country. In doing so let us heed the prophetic call of a great leader, Chief Albert Luthuli, who almost sixty years ago, expressed the hope that 'here in South Africa, with all our diversities of colour and race, we will show the world a new pattern for democracy and set a new example for the world'.

I wish you well in your deliberations over the next two days.

I thank you.

Issued by: Department of Justice and Constitutional Development
21 September 2006