J de Lange: International conference on politics of restorative justice
in post conflict South Africa and beyond

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