Boasting about their crime led to the apprehension of two boys who stole a computer from their school in the Cape Flats.
The boys seemed destined to join the thousands of juveniles awaiting trial at prisons throughout South Africa, but an innovative and carefully mediated community court saved them their enrolment at the local “university of crime”.
Instead, the boys attended a marathon meeting to decide their fate that involved their parents and family elders, teachers, the school’s principal, a prosecutor and probation officer and a mediator from the National Institute for Crime Prevention and Reintegration of Offenders (Nicro).
Fear and anger filled the room at the start of the meeting. The furious principal told the boys that an international aid agency had donated the computer to the impoverished school and that as a result of their actions both the school and the community had lost a vital educational tool.
The terrified boys listened as a detailed picture of their behaviour emerged from the people close to their lives. Patterns of truancy, drug-taking and peer pressure emerged. After five hours the Nicro mediator brokered an acceptable reparation agreement between the principal and the young offenders.
In terms of the reparation agreement both boys will take part in Nicro’s youth empowerment scheme — a life-skills training course — and undertake extensive work at both their school and the community library.
This form of mediation and reparation is already well integrated in the legal systems of the likes of New Zealand and Canada and has been shown to actively divert young offenders from prison and a life of crime.
While courts limit themselves to the facts of a crime, victim-offender mediation — where only the victim, the offender and a mediator are present — and family group conferences (FGCs) deal with the harsh reality and raw emotions surrounding a criminal incident.
In such mediation meetings, victims get to say what effect a crime has had on them and also have a say in what happens next. Young offenders are forced to face the consequences of their often impulsive actions and have to take full responsibility. The object of this type of restorative justice is to transform fear and anger into forgiveness and remorse. Although not a viable response to violent crimes such as rape, according to Nicro’s Fairosa Brey, FGCs are likely to become a regular response to petty and minor incidences of juvenile crime.
The new Child Justice Bill is likely to become law before the end of the year. The Bill pivots on the principle of keeping children out of prison and prescribes a meeting between the magistrate, prosecutor and probation officer to assess whether a child should be diverted from incarceration.
“It’s more than likely that FGCs will be an initial diversion,” says Brey.
The Western Cape already diverts about 2500 children a year. Last year 400 FGCs were held there.
Justice officials are now more willing to divert children from the criminal- justice system and a consequence of this is that the number of children awaiting trial in police and prison cells has been reduced.
The conferences are a far cry from the ad hoc actions of forward-thinking justice officials 20 years ago. In the 1980s, Brey and Natalie Fleishank, now the deputy director of public prosecutions in the Western Cape, drove into rural settlements to mediate cases of wayward children, challenging the call of communities for corporal punishment.
“There were no diversion programmes then,” Fleishank recalls. “It was a shock to the older people in the justice system, never mind in the communities.”
However, FGCs are complex and time consuming. Prosecutors need to explain the principles of restorative justice to victims and offer it as an option. Because of the often emotional intensity of the crime experience, mediators are faced with the task of winning the trust of both the victims and the offenders.
But the conferences do work.
In 1997 a sub-group of the Inter Ministerial Committee for Young People at Risk ran a pilot diversion project that involved 43 cases of juvenile crime in Pretoria. The success of these conferences led to the establishment of the Restorative Justice Project, under the leadership of Mike Batley and Nigel Brankin. Like Nicro, the project runs FGCs and trains NGO workers, social services and justice officials to do the same.
Batley says the success of an FGC is measured by the satisfaction of the participants and by the cost of what would have happened if the child or children involved had continued with a life of crime.
Nicro’s Brey says prosecutors need to be lobbied about the meaning and benefits of victim-offender mediation and FGCs because some may not know what they entail. She adds that more programmes are needed to support the conferences.
Nicro currently offers five diversion programmes, but more community-based initiatives are needed to give children opportunities to make amends.
Brey says the legislation and development of diversion imperatives like FGCs would counteract the chaos of street justice and kangaroo courts.
Fleishank believes the process must be regulated, but is afraid of over- regulation and limitations.
She uses an example of an FGC she was involved with where a child had stolen silver candlesticks worth R30000 from his grandmother with the help of a friend. The grandmother didn’t want to press charges, but Fleishank explains that if there had been a R5000 limit on FCGs she would have had no option and the children would have ended up with criminal records.