It was the best of times, it was the worst of times: Gareth Cliff, Free Speech and a time to Re-Imagine

It’s been a tough start to our New Year in South Africa. Dicken’s Tale of Two Cities starts out:

“It was the best of times, it was the worst of times.”

Sometimes the worst we go through helps to break us open in a way that light can get in.

The vile racist sentiment expressed of late on social platforms has amplified the conversation and maybe, just maybe more ordinary South Africans will start to see the structural conditions that have allowed a minority to thrive and to continue to do so and that our majority continues to find it difficult and in some cases, near impossible to break out of cycles of poverty.

 On our Alternative Dispute Resolution programs of late, we have spent more time unpacking the Genesis of Violence. Camara’s work on the Spiral of Violence unpacks a three-dimensional model:

 Violence #1 Systems that create and sustain poverty which leads to

Violence #2 disease, addiction, domestic violence, suicide, homicide, gangs, violent public protest which leads to

Violence #3 Police, military, criminal justice which leads back to violence #1

 Restorative Justice Practitioners have traditionally mobilized at #2 and #3 but there is a growing awakening for stronger mobilization at violence #1.

The conversations we have right now are important. This is a time for us all to learn together. Last week Advocate Dali Mpofu, in conversation with Gareth Cliff said that if we knew how important economic freedom was, we would all be working hard at it. And it is important. I want my son and daughter to inherit a just and peaceful society. I am constantly shocked at the heightening private security controls in elitest residential and commercial estates. The walls we build don’t make us any safer. They make us less safe. They heighten our fear and sense of the “otherness”of our brothers and sisters. None of it is sustainable. We may not fully grasp it, but our best hope is wrapped up in working for a more just society in our country. Not in a more efficient private security system and certainly not in “tough on crime” politics. That’s a band aid. Or an attempt at cure. And a violent one at that.

 Gareth Cliff defended the vile musings of Penny Sparrow, not the substance of what she said, but that she said it. He said that South Africans didn’t understand the right to free speech. Idols has ditched him and there is a widespread notion that he was ditched for defending our right to free speech. This is not correct!

Constitutional law is about balancing rights. Human Rights come with corresponding human agency. Agency points to responsibility. As agents of our rights, we are responsible to exercise our rights in ways that other rights are not violated. In expressing myself, for example, I must be mindful of the human right to dignity. I must also be mindful that even at common law three aspects of personality are protected: the physical being (I can’t assault you, unless in defence of my or another’s life), the psychlical being, made up of dignity and reputation. I can’t injure how you see yourself and I can’t injure how others see you (unless it’s truth for public benefit.)

 But why do we even need laws to tell us how to be humane? Why do we think we must protect the Gareth Cliffs of this world who get away with vile jokes about the vulnerable and marginalized. Why would we ever think that our right to freedom of expression would ever extend to a right to reducing our brothers and sisters to animals. Why would we think that that would be beneficial in any way? Have we gone insane?

Maybe, just maybe we are going through the pain of going sane. But I think the key lies somewhere in moving through the pain. As Henry Nouwen says, the way out of pain is never around it, but into it and through it.

 It’s a painful time for us. 1994 kept the peace so to speak. But it’s time to usher in a whole new season of peacemaking. Peacekeeping is more about subduing and getting people to calm down. Often violent methods are invoked.

Peacemaking is the much, much tougher work of ushering in justice.

May we all find renewed energy to work towards a just peace.

In peace (by the presence of justice)

Sheena Jonker

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Are people getting to tell their stories in Court? Yet?

We all know court is a contest, right? We know that the win is largely based on the genius (or lack thereof) of lawyers, right? This means that access to justice can be quite closely associated with levels of affordability.

However, it gets worse, disputants (the state, victims, offenders, plaintiffs, defendants and so on) are being shut down. They are being silenced!

That’s crazy, Sheena, what do you mean?

I mean this, in court, testimony (yes, that’s people’s stories) is clinically filtered through artificial rules of admissibility. For example, just because something is hearsay does not mean it is inherently not true. Yes, it may be unreliable, but not necessarily inherently so. Yet judicial officers apply the rules of admissibility expansively and shut down evidence before it is even heard and it may be that other evidence may stack up in corroboration. It may also be that the evidence, although it may not necessarily true affected a party’s perception. Evidence is disallowed and blocked left right and centre and people are not authentically telling their stories. How can this possibly be the best platform for access to justice?

In contemplating this I researched the origin of rules of admissibility and my preliminary research seems to indicate that artificial inadmissibility rules or evidence were designed for systems presided over by juries-yes, lay people. A free system of evidence should apply to matters presided over by judicial officers schooled in the law. Yes, people should tell their stories as fully and as authentically as possible and the issue should be weight rather than admissibility. In other words the judge applies his or her mind to all the evidence as a whole and then makes an assessment on what does and does not stack up.

One of the corner stones of a fair trial is the right to be heard, to tell your story (your testimony)

This bolsters our view that ADR methods like mediation can be powerful platform and a more appropriate one for access to justice. This is where people get to tell their stories, this is where forgiveness, restoration, restitution and collaboration takes place. This is an access point to commence the process of stopping damaging cycles that simply spiral individuals downwards into a perpetual win-lose (which most often looks more like lose-lose) situation.

This insanity must stop! Help us take up the cause of Alternative Dispute Resolution. Together we can make justice look more how it should look.

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Sheena Jonker

A RESTORATIVE JUSTICE view on #pennysparrow #chrishart #justinvanvuuren

New Years Day this year saw our beaches packed, as usual, with jubulent beach-goers. It also saw some South Africans taking to the social networks to vent deeply racist and hateful sentiment. Some of the posters were Penny Sparrow, apparently a former Estate Agent with Jawitz Properties, Justin Van Vuuren of FatTruckSA and Chris Hart, Senior Economist at Standard Bank.

Their actions have resulted in serious consequences. Penny Sparrow has been denounced by her former employer, has had threats levied at her and has been suspended from the DA. Justin Van Vuuren has lost his Future Life Sponsorship and Chris Hart has been suspended from Standard Bank. I understand that all three have had criminal charges laid against them.

And my response is: good

You may be surprised at this since I am a proponent of restorative justice. Well let’s take a look.
Punitive Justice asks:
What offence was committed?
Who committed the offence?
How should they be punished?

Restorative Justice asks:
What harm was done?
Who caused the harm?
Who suffered the harm?
How can we make things right?

One of the features of a restorative approach and the way I practice restorative justice is that unlike a punitive approach which often sees quick results that are unsustainable, a restorative approach emphasizes learning and growing through the process.
As a restorativist, sometimes it is a good thing to take a step back and allow those who offend to experience the natural consequences of their harmful behaviour. In this case the action of the three has lead to being made to feel unsafe in this world through threat of actual harm as well as threat of legal action as well as action that could very well expose them to economic detriment.
Am I happy that they have been made to feel unsafe. No, it’s not as simple as that. I could never say I am happy about any of this. But it is good that they are living the real consequences of their deeply hateful and harmful sentiments which were publically vented.
For too long restorative justice practitioners have light-weightedly regarded issues of race, gender and distribution of social power leading to the mindset that anything can be mediated. No, often other action is required before matters are ready for dialogue and often that action takes the form of natural consequences or action taken by a righteously angry citizenry.
It’s a good time for South Africans everywhere to watch and awaken to the fact that the type of thinking that the three expressed publically is every bit as harmful to all of us as a society as is violent crime. In fact this type of thinking which is the actual entitlement thinking, and has been for 400 years of Western entitlement ideology is what has landed our Country up as a deeply divided society and this makes violent crime and instability not justified so much as inevitable. And we need to be very honest with ourselves right now.
Does the action of the three exclude restoration? Absolutely not. In fact it may well catalyse a season of restoration if we are willing to be tough on ourselves and honest about the real problems. And one of the things we need to ditch is the argument on reverse racism. It lacks substance. Racism, properly understood is a system of advantage of one race over another. Transformation policies can never be regarded as reverse racism. They must, for all our sakes, be regarded as aspects of redress and reparative justice.

It’s important to know that a significant aspect of the restorative approach is insight into the harm we have caused or the harmfulness of our thinking and actions. Penny Sparrow at least seems to completely lack this insight. Cornel West states that the unexamined life is not worth living.

It’s time to take a good look around and look at how our brothers and sisters are living and its time for all of us to take transformation seriously. Constitutional expert, Prof Devenish once said: “we ignore land transformation at (ALL) of our own peril.”
Restorativism is about liberating both oppressors and the oppressed and Penny Sparrow, Chris hart and Justin Van Vuuren, your vile public spewing of hatred and the devaluing of our brothers and sisters might just have catalysed enough righteous anger for us to finish what the TRC was meant to have started: the actual reparation that is intrinsic to restoration.

Let’s starting talking about what that might look like.

As always, Peace
Sheena St. Clair Jonker
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