Vantage

Understood as the point from where we see, the word, ‘Vantage’ can aid us in unpacking the systems in which we are, to a large extent inert non-participants in our own wellbeing.

So, continuing from what we have been unpacking, medicine is largely done to us or for us and not with us. Justice is largely done to us or for us and not with us. Education is largely done to us or for us and not with us. In the same vein, parenting, the workplace, economics and politics are largely done to us or for us and not with us.

Vantage, as the place from which we see, works best the higher we are. The more we rise, the more we see. If I have the advantage, at a rudimentary level, it may mean that I can see more than you and thus may be able to benefit more than you. If I have the disadvantage, at a rudimentary level, it may mean that I am in a lower place than you and can therefore not see what you can see and may not be able to benefit precisely because I cannot see what you can see.

Our systems advantage some (raise some to a higher place where they can see more and benefit more by that expanse of seeing) and disadvantage others (keep them in a place where they can see less and are unable to benefit by that expanse of seeing). These are often artificially crafted vantage positions and the artificiality is most often a product of economic prowess or economic lack. We can be artificially heightened to expansive seeing in ways that help us to gain way more than what we need. We can also be artificially lowered to places of limited seeing in ways that we are unable to meet our basic needs.

Most of our social systems do this: some are artificially ad-vantaged (given a great view) and others are artificially dis-advantaged (lowered into a dark place with no way of seeing what we need to see).

Whilst our systems artificially foster ad-vantage and dis-advantage, we will continue to see in parts. Seeing in parts rather than seeing the whole, hardly ever gets us what we need.

ADR processes like mediation, well-located within restoration and transformation can help us to be empowered agents in systems that affect us and in ways that we can participate in creating what we need.

ADR processes can help to raise us all so that we are each able to see more.

Vantage.

In peace,

Sheena Jonker

sheena@adr-networksa.co.za

[i] With thanks and apologies to Charles Dickens

[ii] For previous blogs: ALTERNATIVE DISPUTE RESOLUTION IN THE TIME OF COVID 19 | ADR Network SA (adr-networksa.co.za) and ADR, HUMAN RIGHTS AND COVID-19 | ADR Network SA (adr-networksa.co.za) and LOCKDOWN-RELATED DISPUTES AND THE ROLE OF ADR | ADR Network SA (adr-networksa.co.za)

[iii] Kenneth Cloke, ‘Politics, Dialogue and the Evolution of Democracy’

[iv] http://www.adr-networksa.co.za/restorative-justice-state-capture-and-corruption/ and

http://www.adr-networksa.co.za/dudu-myeni/

ADR, Mediation and Restorative Justice Roundup

It’s been a while since I blogged.

It was the best of times, it was the worst of times[i]

Best (Well…in a manner of speaking)

2021 has been a strange year. A bit like the classic Tale of Two Cities. It was the Best of Times, It was the Worst of Times.

In Fact, I think my last blog happened in 2020. 2020 was the ushering in of a strange new life for us all on many levels. But it also comprised a confluence of events (Disaster, 4^th IR, Rule 61A and the RAF shift toward mediation, amongst others) that highlighted the utility, resilience and significance of ADR processes, specifically mediation. Wake up suddenly and you’re in…uh…thrust into a world of online work. In our case, online dispute resolution and mediation and online training in dispute resolution and mediation.[ii]

For the most part, I have felt this to be exceptionally beneficial to ADR and mediation. As a platform upon which, I have long thought, we can better advance ideals in better access to justice, I am seeing much of that capacity-building manifest before my very (screen locked) eyes.

Naturally I am alive to the obstacles faced by many with insufficient access to connectivity and devices. However, I am absolutely certain that these challenges are more easily and practicably overcome than the spatial injustice, economic challenges and public transport issues that complicate access to our courts.

The Hague Institute for Innovation in Law talks about online courts and that establishing online courts alone is insufficient for what may lie ahead. Our focus needs to shift significantly toward informal processes like mediation.

I had written previously about how Ken Cloke had so profoundly seemed to see up ahead in his book, ‘Politics, Dialogue and the Evolution of Democracy’ wherein he writes an actual Chapter on pandemic (back in actual 2018) and he talks about the need for the language of co-operation, collaboration and bridgebuilding as he predicts that the power-based problem -solving structures (police, military and courts) will start to crumble.[iii]

A lot of this has been good for those of us who have advocated for ADR, Mediation and Restorative justice and we have seen some magnificent gains for which we remain in awe and deeply grateful. But we do remain reverend in the face of the enormity of the work that lies ahead.

Worst (in a manner of speaking)

2021 has been a little weird. And scary. A little more weird and scary than 2020 was. Well…for me.

The July unrest in Durban had a particular impact on me. Leaving aside the enormous impact for others (for the moment) and naturally for all of us as a society. I have an ability to look up ahead with hope and doggedly refuse the idea that things may just fall apart completely. In July my ability near abandoned me. I have been deeply saddened by the events of the past number of months. I have previously written about how I feel that the state capture commission is an exceptionally expensive exercise in public square spectacle allowing us to point and say: ‘Look, the evil is over there. None of it is within me’ rather than to do the self-reflection that we all need to do. I have also written previously about my view on the constitutional anomalies inherent within the commission and that if one understands onus, burden of proof and elements of crime and how complicated this all is in prosecuting commercial crime, I think the commission has very low potential to manifest actual successful prosecutions and convictions.[iv] All this I believe to be complicated further by what I regard as constitutional anomalies and deficiencies in the process. Of course, I must be honest, I am hell-bent on a justice that restores rather than seeking to punish and so naturally I am less than joyous about a process that, to my mind, nurtures within us feelings of bloodlust and revenge as we see the ‘bombsquad’ unleased on whomever we have been made to believe are the ‘bad guys’.

You can check out previous blogs (referenced in the endnotes) that further expound my views on this and what I think a restorationist approach may be.

National Strategic Plan on Gender Based Violence and Femicide: Pillar 3

I have been appointed one of the ambassadors in what is a state-side and civil society partnership attempt to address the scourge of GBVF in our country. Having worked extensively to address sexual violence and domestic violence, initially in practice as an attorney and for the past decade and a half via victim centric restorative justice and ADR Methods, I am deeply grateful for this platform to advocate for something that I believe so whole-heartedly in.

Pillar 3 has to do with ADR and Restorative Justice. Through her tireless work, Mpho Mdingi of ADR Network SA Limpopo has lead the way to ensure that ADR Network SA makes its contribution in this project helping to organize and develop the 100 days of Divorce Mediation and 120 Days of Divorce Mediation Projects.

ADR Network SA has contributed various forms of training to the project for its various stakeholders including the DOJ, the UNODC and the LPC.

Two weeks ago I presented a webinar on Integrative Justice: A holistic Problem-Solving approach to Justice. You can access the text of it here. Integrative Justice: Presentation for National Strategic Plan on GBVF (Pillar 3) | ADR Network SA (adr-networksa.co.za)

I was also interviewed by the UNODC for their publication on women in conflict the law in view of my work in Restorative Justice.

This Thursday at 2pm I will be presenting, along with Gabi McKellar on Restorative Justice for Women and Children. Please attend if you can.

The details are as follows:

Herewith the link for the Pillar 3 webinar on 30 September 2021 14h00 – 15h30

Restorative justice for women and children

Moderators: Mpho Kgabi & Tania  Buitendag

Speakers: Sheena Jonker & Gabriella McKellar

Please forward the invite to all for distribution

CLICK HERE TO JOIN

Microsoft Teams meeting

Join on your computer or mobile app

Click here to join the meeting

Covid Injury in the Workplace and Vaccine Mandates: The Role of ADR

Please join us for this mediated discussion this Thursday at 6pm.

To RSVP and for zoom access details please email training@adr-networksa.co.za.

Mediation, Arbitration and Restorative Justice Training

Check out our programs and join us in the shift from the adversarial to the non-adversarial. From the Punitive to the Restorative.

Five Day Mediation Training: Training – Five Day Mediation Training | ADR Network SA (adr-networksa.co.za)

Wednesday Night School Series: Training – Wednesday School Series | ADR Network SA (adr-networksa.co.za)

Short Programs in various areas of ADR: Training – Online Short Training Programmes | ADR Network SA (adr-networksa.co.za)

One year Distance Learning programs in ADR and Restorative Justice: Training – Distance Learning Programs | ADR Network SA (adr-networksa.co.za)

Ongoing Professional Development for CPD: Training – Ongoing Professional Development for Mediators and Arbitrators | ADR Network SA (adr-networksa.co.za)

Panel Membership and Accreditation

Join our panel for annual accreditation and other benefits: Accreditation | ADR Network SA (adr-networksa.co.za) Accreditation | ADR Network SA (adr-networksa.co.za)

Provincial Structures

We have provincial structures in Limpopo, Gauteng and very soon in the Eastern Cape.

Limpopo, lead by Mpho Mdingi is opening new offices with the capacity for live local training, in person mediation and is putting a lot of energy behind stimulating court annexed mediation and Rule 41A. Get in touch with her at mpho@adr-networksa.co.za.

In peace,

Sheena Jonker

sheena@adr-networksa.co.za

[i] With thanks and apologies to Charles Dickens

[ii] For previous blogs: ALTERNATIVE DISPUTE RESOLUTION IN THE TIME OF COVID 19 | ADR Network SA (adr-networksa.co.za) and ADR, HUMAN RIGHTS AND COVID-19 | ADR Network SA (adr-networksa.co.za) and LOCKDOWN-RELATED DISPUTES AND THE ROLE OF ADR | ADR Network SA (adr-networksa.co.za)

[iii] Kenneth Cloke, ‘Politics, Dialogue and the Evolution of Democracy’

[iv] http://www.adr-networksa.co.za/restorative-justice-state-capture-and-corruption/ and

http://www.adr-networksa.co.za/dudu-myeni/

INTEGRATIVE JUSTICE: Presentation for National Strategic Plan on GBVF (Pillar 3)

A FUNDAMENTAL SHIFT: TOUGH MINDS, TENDER HEARTS

In ancient times the lawyer was the healer in society. In the same way as the physician was the healer of the body, the lawyer was looked to in order to weave back together the unravelled threads of the tapestry of society. This was essentially the work of restoration of relationships that had been breached, injured or broken.

In modern times, the practice of law and the justice systems that it serves, has tended to become more and more rules based. And as with many professions and structures, often substance gives way to form. And so we may find a heavy bent on procedural justice or it’s pursuit and sometimes at the expense of substantive justice. Form over content, if you will.

The entire universe functions according to law. Our bodies function according to certain laws. There are laws that govern how healthy cells function. At a human physical level, we are at our healthiest when there is a head, heart balance. Or more comprehensively a head, heart, spirit, body balance. We are healthy when these aspects are integrated-they work as one. We become unhealthy when we live partially or in parts of ourselves. When we are all heart, we may become unhealthy.  If we live mainly up in our heads, we may become unhealthy.  If we are all spirit and we ignore our intellectual and physical well-being, we may become unhealthy. If we are all physicality and we ignore our intellectual, emotional and spiritual beings, we may become unhealthy or un-whole. All the different parts of ourselves are meant to work together in an integral way. We work best as whole systems when all the parts of ourselves work together as an integrated whole.

In the same ways, systems function best, serve society best when they work integratively. And so professions and administrative systems that serve society do well to adopt a whole systems approach.

So the integrative approach to law, to justice is that every problem, every legal dispute is best solved when regarded as and properly located and understood within the system that it is a part of or the system from which it manifests. An integrated, problem-solving approach to injustice is alive to the idea that we cannot solve problems and disputes in isolation or in a vacuum.

It also understands that what we do to one part of a system we do to the whole. Just as what we do to one part of our bodies, we do to the whole. What we do to one organ affects the whole. What we do to one cell, affects the whole.

WHAT IS THE SHIFT?

The shift is from two parties as opponents in a divorce dispute to two people who are part of a whole system, that must function, albeit, in a modified format, as a whole system beyond divorce particularly of there are children.

The shift is from the state in pursuit of an accused person to the state and accused as parts of a whole. The one part has allegedly injured the society that the state represents. How does each part come away with what it needs. If we deny that the injurer has needs and must be subject only to just desert then we participate in keeping cycles of violence firmly in place. The most dangerous humans are the ones with unmet needs. We know that.

The shift is from commercial partners locked in litigation in which one will emerge the winner and the other the loser to how do we repair what went wrong in ways that each will came away with what they need.

The high point of justice is that each party comes away with what they need and not just what we think they deserve.

In her book, Lawyers as Peacemakers, J Kim Wright quotes the following from Sheila Boyce:

‘Society made big advance(ment)s by requiring symbolic battle rather than actual battle.’  Boyce goes on that this symbolic battle is litigation in which each side presents their claims before a member of the elite who will then decide a winner and a loser. Law school assumes that this is the best environment for the practice of law where lawyers either do battle to resolve problems or they assist their clients in pursuit of means to avoid the battle. But there is always the underlying assumption that litigation may happen and so information and intentions are kept confidential and if the battle happens it is on the basis of win at all costs.

This does not foster a justice understood as rightly related individuals, making up rightly related families, making up rightly related communities and so on. What this does do is that it entrenches our ways of working on problems in parts, or partially, isolated a way from a the whole that each individual is a part of. The result is that collaboration, co-operation and problem-solving are not fostered and so we keep at trying to deal with the brokenness within our society symptomatically where the ‘cure’ is often convictions, incarcerations, suspensions, exclusions and the dichotomy between winners and losers.

Boyce says that in a similar way, business people incorporate themselves to protect themselves from liability. Now we have this huge, unwieldy and inhumane system in which those who have the most money, wield the most influence and power, profits are everything and millions go without what they need. She says that millions more spend their lives in prison and that lawyers and judges can be the linchpins in this system. The fundamental assumption is that we are separate and apart, potentially in conflict with each other, there is not enough to go around and that the strongest, wealthiest and smartest must be well-defended.

When someone commits a crime, we aim to convict, separate. Punish and deprive that person for a certain period of time. At some point, the thoughtful amongst us will take a look at the results and outcomes and start to question them-first the outcomes and then the assumptions that underpin them and keep them in place and we will say this is unsatisfactory.

Many lawyers come to feel jaded and dissatisfied with what they do with their time and energy, she says.

So we come to the central question.

IS HUMANITY A WHOLE, INTEGRATED SYSTEM WHERE EACH PERSON IS TO BE TREATED WITH LOVE AND COMPASSION OR IS EACH PERSON SEPARATE AND ENTITLED TO PURSUE HIS OR HER OWN EGOIC INTERESTS TO THE DETRIMENT OF AND WITHOUT REGARD TO THE EFFECT ON OTHERS?

Boyle says that this is more than about making lawyers happy, it is about changing the relationship between citizens and jurisprudence.

And so how do we change this relationship.

J Kim Wright Identifies a number of Vectors.

VECTORS

1. Restorative Justice-addressing structural issues and shifting towards a justice that restores
2. Therapeutic Jurisprudence-specialised problem-solving courts-Children’s Court, Family Court, Sexual Offences Court
3. Mediation
4. Collaborative Law
5. Holistic Law

QUESTIONS FLOWING FROM THE CENTRAL QUESTION

Those who answered the central question in the affirmative have started to question the existential environment surrounding the legal and justice system:

What is we are not all separate and at odds with each other?

What if criminal justice is dehumanizing and degrading and keeps violence firmly in position in society?

Maybe litigated divorces are bad for parents and kids?

Maybe those who smoke weed should not be in prison?

Maybe sending the perpetrator to prison does not make them whole and does not stop the crime.

Maybe litigators are excited and energized by the battle but go home and wonder what they are contributing to.

By Sheena Jonker

sheena@adr-networksa.co.za

www.adr-networksa.co.za

RECOMMENDED READING AND SOURCES

J Kim Wright, Lawyers as Changemakers (S Jonker and Gabriela McKellar are contributors)

J Kim Wright, Lawyers as Peacemakers

ABOUT THE PRESENTER

SHEENA ST CLAIR JONKER

She obtained a BA in Legal Studies and Religious Studies from UKZN in 1992 and then obtained a postgraduate LLB in 1994 also from UKZN

She practiced law as an attorney for a decade as a general practitioner and also as a conveyancer

She taught law at University Level for 15 years

She had developed an interest in Alternative Dispute Resolution right at the beginning of practice

After the birth of her second child she stopped practising and took a year long break. After that she started to formally develop her passion for ADR and Restorative, non-adversarial systems and methods. She founded ADR Network SA which is a private Dispute Resolution Agency, training and development agency for mediators and arbitrators and also operates as a voluntary regulatory and compliance body in ADR

She is consulted widely both nationally and internationally for her expertise in restorative-justice informed dispute resolution processes across most areas of legal disputes. Past students of hers include local lawyers, judges, educators and international lawyers, judges and educators.

She also runs an NPO, The Access to Justice Association of SA which mobilizes dispute resolution resources for vulnerable persons and poor communities across Southern Africa.

She speaks and writes extensively about the promotion and development of non-adversarial and restorative methods in law reform projects and in organizational systems and structures.

Publications include:

Contribution to Lawyers as Changemakers, J Kim Wright (American Bar Association)

Various articles in Media for Justice

Various Articles in Thought Leader

Contributing Paper to Lawyers as Peacemakers Conference, IDRA, Unisa College of Law (2016)

Contributing Paper UNISA Labour Law Conference 2017

Accolades:

Shortlister: Hague Centre for Innovation in Law, 2016 (Access to Justice for Children)

Nominee: Pro Bono Awards, 2016

Other positions/Memberships/participations:

SAMLA Medico-Legal Mediator

Co-Chair-International Society for Therapeutic Jurisprudence (SA Chapter)

Member-International Integrative Law Movement

Email: sheena@adr-networksa.co.za

‘Why are you shooting me? Ntumba asked. And then the cop shot him again and again and jumped on him. The shooting of an innocent bystander, Mthokozisi Ntumba during the Wits protests last week was described by Thando Sibanda. 

Mapping police violence

Vicky Osterweil writes that in 21st Century America it’s hard to think of any less popular political action than (protest) or its ‘violent’ expression in rioting and looting. We could say the same in South Africa for protest action which is in many senses mischaracterised as violent and unsubstantiated and often partaken in by those with nothing better to do and who ‘want everything for nothing’ according to the trope of the previously advantaged and already privileged. The #savesouthafrica brigade and comparable movements aside, of course, in that when they protest, it is largely celebrated and not crushed by police force.

She goes on to say that forms of acceptable political action include voting and electioneering (as the baseline of political action), petitioning and lobbying of elected representatives is not far behind, labour action despite decades of (federal action) still has strong support in many quarters (though whilst the former may mirror South Africa, the latter is receiving waning support and even legislative attempts to curtail labour action), community organizing, once the bedrock of civil society action, do still support demonstrations when perceived as non-violent and when their people are doing it. 

Ironically, she goes on, more extreme forms of political action have widespread support: both liberals and conservatives internationally believe in war considering it a necessary evil or fundamental good. Liberals oppose the death penalty but like conservatives believe in the efficacy of murder when it comes to war. Torture is celebrated 1000 times a day in police procedural and action movies and most people regard imprisonment-years of unrelenting psychic torture-as a necessary fact of social life. Economic coercian on the international stage through sanctions, trade agreements and development loans is a matter of course. At home, the threat of unemployment, homelessness, starvation and destitution along with debt, taxes, fines and fees of all kinds are so naturalised as to rarely even be recognised as a form of political domination at all.

Protest by the working class, poor and excluded students finds little support in dominant South African Society. The ‘redemptive’ violence of police is often justified, celebrated and even encouraged in certain quarters, specifically by those with a vested interest in maintaining the status quo.

When I watched the footage of the police advancing on the protesting Wits students last week, I was shocked by the blatant aggression and lack of temperance. And they knew they were being filmed.

In order to properly understand and map the violence of modern-day policing, it is important to understand the roots of property. South Africa, like many other formerly colonised lands is built on centuries of violent economic exploitation and exclusion. 

In her chapter on the racial roots of property in America, Osterweil says that the USA is built on African slavery and indigenous genocide. She says that this simple fact is the premise from which any honest study of American history must begin. Property, state, government and economy in America rise from these pillars of racialised dispossession and violence, slavery and genocide and any change made that does not upend this history, that does not tear these pillars to the ground through a process of decolonization and reparations does not deserve the name justice.  We could easily transpose this paragraph virtually as is using ‘South Africa’ in place of America.

A vision for a different life

Although American history, she says, (and I suggest our own) is largely the continuation of this violence, it is also full of moments and movements that envisage a life lived otherwise. The #feesmustfall, #outsourcingmustfall and ancillary and other manifestations of these movements like #austeritymustfall embody these moments and movements. These are moments and movements are embodiments of resistance, liberation and transformation envisioning a world beyond not only the crushing violence of the state in its most obvious embodiment-police force and prisons-but also beyond the more insidious forms of violence such as the economic coercian expressed in debt, taxes, fines and fees of all kinds and manifested in actual and threatened unemployment, homelessness, starvation and destitution.

It is necessary to understand the roots of modern-day policing and its unholy alliance with white supremacy the world over. The concept of property itself evolved out of euro-american chattel slavery and settler colonialism. Just as indigenous slaves built the great wealth of the modern Western world, so too, in Southern Africa, was (and still largely is) the great wealth and infrastructure of these parts mined and built on the back of African slavery and then centuries of violent systematic exclusion and exploitation that Terblanche articulates and which eventually found its expression in a codified or legislated system which came to be known as apartheid for around 80 years prior to political freedom in 1994. I qualify freedom as political freedom as freedom is yet to find its full expression in a just society here. This will require the commitment of all South Africans in mind, body and soul to arrive at the realisation that this deeply unequal society of ours is neither sustainable for us nor is it good for us in any sense if we are committed to becoming whole healed individuals that make up a whole healed society.

I will no-doubt be criticised in the sense that those who look like me will say but the death of Ntumbi was black on black violence. He was killed by the black state. 

However, in the same way that Rhamaposa did the bidding for and/or  provided a buffer to the anglo-americans of this world in the Marikana killings, our state and its various machinations still prop up the status quo of a small minority that have more than they need at the expense of the vast majority who, in many respects, hardly have what they need. While legal apartheid was dismantled around 1994, de facto apartheid has found its expression in far more insidious ways including the burgeoning lagers of elite security estates and the associated fortification of the private security industry with its various manifestations of limitation of freedom of movement and profiling of certain classes of individuals within those estates and even in suburbs where often access and freedom of movement is (unconstitutionally) restricted on public roads. It also finds expression in couching corruption as the African way or the way of the African state when, in truth, corruption is the international language of business often finding expression in old tropes like ‘its not what you know, its who you know’. Any system that pits humans against each other in competition, like capitalism does, will always battle the problem of corruption. In this system I get ahead and thrive by crushing you or by ensuring that you I win and you lose. It touches how we do everything from schooling to conflict resolution.

We don’t want to heal

In her work, Osterweil traces the origins of modern day policing to white vigilanti-ism on slave plantations through to a violent response to worker movement uprisings in the early 1900s and unpacks its inter-connectedness with the protection of private property over and above care for human life. The fault line is that private property is always to be protected from the disinherited, the excluded, the desperate and those living with their backs against the wall. In short: those who do not have what they need and, moreover, do not have access to what they need.

In our own country, we have a shameful past of police brutality as the hard artillery used to maintain the aforementioned system of violent exclusion and exploitation-a past almost too painful and too complex to honestly and articulately elucidate. But sadly, not a distant past. This is our very recent past. And it has reached into and exists in our present. If we are honest, it exists to protect the status quo that existed prior to 1994 and has reached into and has its tentacles embedded firmly into the present.

On balance, protest is one of the least violent methods of political actions if one really gets to grips with economic exclusion and exploitation, and all that it involves, which is still a firm reality of South African Society. Am I wrong? Look around you and then answer that question. But be honest and let’s reflect on how each of us (particularly the descendants of former colonisers) partake in propping up the status quo. 

Many around me distribute conspiracy theories in the name of not letting the media tell us what to think about Covid and the pandemic and all manner of how the ‘global elites’ are coming for us and our freedoms. The truth may be hidden in plain sight: capitalist society is a giant triangle pyramid scheme and we are watching its trajectory move towards the top tip of the triangle where a terrifyingly small few have way more than what they need and the majority does not have what they need. Yet the conspiracy theorists explain this in terms of baby-blood drinking paedophiles who are being waged war against in secret by the Christian right who incidentally insist on protecting and conserving the very system that will undoubtedly, and, if uninterrupted, end humanity.

Those same individuals who distribute anti-main stream media conspiracy theories often accept, in whole, what the media says about protest and protestors.

So Ntumba’s last words, ‘Why are you shooting me?’ should ring in our ears as a warning and a call to solidarity with the excluded, dispossessed and marginalised. The media languaged his death as the death of a ‘civilian’ thus inadvertently couching the students as violent combatants as the #endausterity movement has articulated. Many of us continue to fall for this trope, welcoming and celebrating the force of the police that crushes protest and enforces law and order quite oblivious to the real possibility in that continuing our firmly gripped belief that ‘they’ are ‘entitled’, ‘destructive’ and ‘want everything’ for nothing when actually the inclusion of every single citizen, the insistence that our society become just (that is, each person has what they need) is confoundingly and intricately connected to all our well-being.

Wanting to heal looks different. Moments and movements like #feesmustfall, #outsourcingmust fall and #auteritymustfall connecting to broader movements like #blacklivesmatter and #defundthepolice are showing us the way. We need institutions of healers. Imagine if teachers saw themselves as healers, doctors saw themselves as healers, lawyers saw themselves as healers. Imagine if police saw themselves as healers. 

Imagine if politicians saw themselves as healers.

Imagine if each of us saw ourselves as healers.

Imagine if we really wanted to heal.

Sheena Jonker

Email sheena@adr-networksa.co.za

[ii] Vicky Osterweil, In Defence of Looting.

[iii] Sampie Terrblanche, A history of inequality in South Africa

[iv] Osterweil, supra at Ch 4

[v] Terblanche, supra and Western Empires: Christianity and the inequalities between the best and the rest.

We need a justice that restores.

This week, the testimony of Dudu Myeni at the state capture commission has brought some important issues to the fore.

Some months ago I wrote about the possible role of restorative justice in the problem of state capture and corruption. This, in essence, because the complexity of running prosecutions and gaining convictions in commercial crimes cannot be adequately fathomed by society in general and so the very public state capture enquiry adds fuel and energy to society’s already desperate demand for justice which is often and to a large extent the misinterpreted desire for retribution and revenge. It is a blood lust type of energy and it is not good for us as a society which desperately needs to heal and achieve justice. Real justice is that every person has what they need. For the public to get what they need we need to have discussions around getting rid of the tender board that opens the way for unsavoury alliances between the public and private sector and expand public works. But that’s a discussion for a future blog.

Read my first blog on state capture and corruption here.

Thuli Madonsela has recently given credence to the potential for restorative justice for clerks and individuals possible lower down in the matrix that is state capture. I would argue that it is imperative for all of us that the entire process and every part of it is the work of restorative justice.

The state capture enquiry is complex and this week gave us some insight into (but not the full extent of) just how complex it may be.

Dudu Myeni has asserted her right to claim the privilege against self-incrimination. At the outset she expressed that she supports the enquiry and wishes to co-operate but feared that her right to remain silent may be compromised if she were to be charged criminally and would thus be asserting her privilege against self-incrimination.

Ms Hofmeyr for the commission clearly articulated the distinction between the right to remain silent and the privilege against self-incrimination. Ms Myeni’s legal team made some powerfully compelling submissions that Constitutionalist ought to reflect on with a great deal of care.

The aforegoing right to remain silent accrues to the accused in criminal proceedings and the latter (privilege against self-incrimination) can only be invoked in response to particular questions with the witness claiming privilege and putting forth reasons that justify that privilege. This means that Ms Myeni could not claim privilege on an entire theme of questioning such as SAA but needs to claim
her privilege in each instance where she may be exposed to incrimination. The economics of this painful process of questioning and claiming privilege on each question is mind boggling.

The result is that the media and public are watching Ms Myeni do what she is lawfully entitled to do and are widely and wildly interpreting her asserting her privilege as affirmation that she must be guilty.

This may present a constitutional anomaly, comparable, I think, to the reverse onus. She cannot invoke a right to remain silent because this is not a criminal forum and as such she cannot defend herself in the way that she would be able to in a criminal court and enjoy the onus and high burden of proof being squarely on her accusers. Instead, she must appear at the commission, on television, asserting her privilege against self-incrimination in every instance, which is perfectly good in law, and be exposed to vast sectors of society and the media pre-judging her as guilty and moreover ridiculing her in ways that may violate her dignity and harm her reputation for life whether she is ultimately found guilty or not and whether in fact she is guilty or not.

This may well open the way for her legal team to argue in a criminal court, if she is charged, that her matter is incapable of a fair trial.

All the while, South Africans are watching, getting the usual angry rise and becoming more brazen in often racially charged ridicule, comment and conjecture whilst billions drain away to a process that simply does not have the capacity to give us what we need. Healing and a just society.

That is a society where everyone has what they need.

By Sheena St Clair Jonker
ADR NETWORK SA
sheena@adr-networksa.co.za