Courts in Gauteng have been running a scheme in which criminals do community service instead of going to jail
Khadija Magardie
Last year, Shaheed* (16) made a life- changing decision – to leave the gang that had been part of most of his life. But the notorious Westbury Fast Guns gang refused to accept his “resignation”. After endless threats and intimidation by gangsters, Shaheed was forced to leave school. One afternoon, a gang member, Junaid* (17), viciously assaulted him. Shaheed laid a charge against his former friend. But the youngsters have settled the matter out of court. Shaheed has dropped all charges, and Junaid is responsible for guaranteeing Shaheed’s safety by preventing the other gang members from intimidating him.
The case is part of a pilot project that is paving the way for “alternative justice” in South Africa.
The Victim Offender Conferencing Pilot Project is being tested in three of Gauteng’s most notorious areas, namely Westbury, Alexandra and Dobsonville.
Funded by the Open Society Foundation and the British High Commission, it involves the face-to-face interaction between perpetrators and victims of crime, together with families, in order to settle disputes. According to acting programme manager of the Community Dispute Resolution Trust, Kevin Lancaster, “there is a greater chance of rehabilitation if the offender is held accountable to the victim”. He adds that it can also serve as a powerful deterrent.
The project operates at a strictly pre- trial level, and does not incorporate convicted offenders.
Cases are referred by the police, prosecutors or magistrates to the various community-based organisations that run the project.
Staff then contact the parties involved. If both parties agree – the process is entirely voluntary – a date and time is set for mediation. The outcome is usually an agreement between victim and offender. The agreement invariably includes some kind of restitution. This can take the form of monetary compensation, agreement to perform a service, or a mere apology. Although an apology is not mandatory, the offender must admit wrongdoing.
The contract is then referred to the prosecutor or magistrate involved, who decides whether or not to “divert” the impending trial. A violation of the terms of the agreement by either party will send the case back to the courts.
According to Lancaster, the project “introduces a more restorative, as opposed to retributive, approach to justice”. Such a project, which he describes as “a multi-door courtroom”, empowers victims of crime. And perpetrators are made more accountable when they actually have to face their victims.
Glen Steyn, a project organiser from Westbury-based organisation Conquest for Life, says most offenders fear their guilt more than the law itself. In one case, a hardened gangster broke down in tears, saying he would rather go to court than face the woman he was accused of assaulting.
The 18-month-long project, which started in June last year, does not handle “serious crimes” like murder, rape or armed robbery. Between September and December last year, up to 21 cases, mainly involving assault, damage to property and theft, were referred to the Westbury project.
But Lancaster says the project “has the potential to handle anything”. The project also deals with domestic violence cases, extremely common in most referrals. The victim and offender can be common law or married partners. In one case, a brother and sister were involved. The mediators report that it is often difficult to mediate in such cases because the victim often withdraws charges after laying them.
Project organisers have a close relationship with the courts. In Westbury, Conquest for Life has an office on court premises to facilitate referrals. But there has been resistance. A prosecutor at the Roodepoort Court, for instance, said he would only be involved if there was legislation instructing him to do so.
Victim-offender conferencing is not new – several countries, including New Zealand and the United States, have used the project, especially in dealing with juveniles.
Last year, the South African Law Commission suggested the establishment of community dispute resolution structures to facilitate “accessible justice”.
The proposals stressed that the forums should not have decision-making powers, but should only serve as mediators between disputants. They also called for the incorporation of customary and/or religious courts, such as the lekgotla.
Project organisers welcome the commission’s proposals as necessary access points to justice, but caution against their becoming institutionalised as a result of falling within the ambit of the state. “What’s already there should be used, and ways of making them more effective should be looked at,” says Lancaster.
* Names have been changed