The Application of Alternative Dispute Resolution and Restorative Justice in Delict or Personal Injury Matters

Say you are studying criminal law and the general public knows exactly what you are talking about. Say you are studying Delict and…crickets

In its most essential form, a delict is a civil wrong or, differently put, a violation of the individual’s rights. This may be property rights or personality rights. So damage to someone’s property may constitute a delict and so, too, damage to someone’s person-their reputation, dignity or physical being may constitute a delict.

A delict and a crime are both wrongs born out of unlawful conduct. All crimes against person or property are actually also delicts.

Broadly speaking a crime is a wrong seen from the perspective of the state and infringing on the interests of the state as well as the individual. The state is the bringer of the suit in criminal proceedings and the emphasis has long been on conviction (proof of wrongdoing) and punishment (the imposed consequence of wrongdoing). The victim or complainant is simply a witness to the proceedings and the proceedings are not centrally for the victim’s restoration or compensation, although we are seeing more victim-centric restorative aspects developing even in our criminal courts.

A delict is a wrong seen from the perspective of the individual. In a delictual claim the claimant (plaintiff) normally seeks compensation (damages) for the infringement of their rights. Other remedies may be available such as an interdict or restraining order. In a delictual claim the civil procedure is invoked and the parties or litigants or potential litigants may agree to avoid litigation by settling the matter out of court.

(Reference and further Reading: Principles of Delict, J Burchell, 1993)

Delictual or personal injury claims are well suited to and ideally dealt with via well-constituted discursive processes rooted in Restorative Justice. Central to the process is the fact that someone has suffered a wrong or an injury and all aspects required for the healing, restoration and redemption of not only the injured party, but the wrongdoer can be well traversed in such a process.

In the past month alone, I have been honoured to assist in settling personal injury claims in a rape case and an assault case. Without going into details, which I can’t do, common to both matters has been a sense in the victims that there has been some form of justice for them. Nothing could ever make up for what happened to them and no amount of money or other remedy could ever compensate for the injury and loss but there has been a sense that ‘something’ has been done, that there has been an acknowledgment of harm and all that gets them further down the road of healing and restoration than any court might have.

For the wrongdoers in both matters I have seen something in the human spirit that I come across often: given the opportunity and the right circumstances, most of us actually want to account for and make good on the harm we cause. The terror of the threat of punishment in criminal justice and the adversarialism or contest nature of both criminal and civil justice often confounds that natural inclination and so we hardly ever see it coming through.

I recently moved my home study from downstairs to upstairs and whilst packing a shelf a book fell out. ‘Peace, love and healing’ by Bernie Siegel MD. This was a book given to my Mom to her Dad and my grandfather in 1993. The book is aimed at doctors and how they have forsaken their roles as healers. I often find that a book I have read before mysteriously falls out when my soul is ready for the deep message. I’d read it before but I’m reading it again and allowing myself to hear the deep message which is that we must allow for the disease to heal our lives.

It takes different eyes and different ears. It may take courage to reconnect with our gut instincts that align with healing rather than adding to the injury.

ADR and Restorative Justice in personal injury matters is a way to allow the disease (the injury, the wrongfulness) to heal our lives and to assist others on either side of the injury toward healing their own lives.

People often ask me how I deal with so much pain and suffering and often sheer evil and how I get through it.

If only they knew the healing I get to see.

By Sheena Jonker

sheena@adr-networksa.co.za