A Restorative Justice Solution in the Fields Hill Truck Matter?

The skilful knight is not warlike. The skilled strategist is never angry. They who are skilled in overcoming the enemy never join battle.

-Non-Violence, the history of a dangerous idea

Human Settlements

Holla!

I blog in peace.

First up a kind note to everyone that our Johannesburg ADR Program in Mediation and Arbitration scheduled for 7-11 October 2013 has been postponed to 21-25 October 2013, primarily due to my involvement in the matter of S v Sanele May the Swazi national who drove the truck in the Fields Hill Truck Accident. Please note we do currently have 50% bursaries available for this Program, as well as our main Distance Learning Program. Please enquire at adr@mediatorsa.co.za

We are working hard in The Fields Hill Truck Matter alongside Professor Mdletshe, to advocate for an independent fact-finding process as well a as restorative justice process. The following excerpt from my draft affidavit in support of his bail application sets out the legal framework underpinning our advocacy in this matter:

1.1        The Restorative Justice National Policy Framework, 2010 published by the Department of Justice and Constitutional Development which was in fact adopted by the JCPS cluster. I attach a copy thereof marked annexure “A” I refer this honourable court to paragraph 2.1 which defines Restorative Justice as “ an approach to justice that aims to involve the parties to the dispute and others affected by the harm (victims, offenders, families concerned and community members) in collectively identifying harms, needs and obligations through accepting responsibilities, making restitution, and taking measures to prevent a recurrence of the incident and promoting reconciliation; this may be applied at an appropriate stage after the incident”. Paragraph 2.2 defines Alternative Dispute Resolution Mechanisms (ADRM) as the disposal of disputes outside of formal court proceedings. The processes and mechanisms may or may not include a Restorative Justice approach. Paragraph 3 refers to the United Nations Handbook on Restorative Justice Programmes which are defined as “any process in which the victim and the offender, and where appropriate any other individuals or community members affected by a crime, participate together actively in the resolution of matters arising from the crime, generally with the help of a facilitator.” Such processes include victim offender mediation, conferencing, panels, circles, dialogues and conversations. Paragraph 3.3 refers to restorative outcomes as including ADRM mechanisms such as diversion, non-custodial sentences, restitution programmes, home-based supervision, correctional supervisions/community corrections and parole. Annexure “A” to this document sets out the matrix of Roles and Responsibilities

1.2        The United Nations Restorative Justice Charter, of which South Africa is a signatory

1.3        The South African Law Reform Commission which emphasizes Restorative Justice and ADR in its law reform objectives

1.4        The Service Charter for Victims of Crime in South Africa which refers to “the cultivation of a human rights culture in which the focus is gradually shifting from an adversarial and retributive criminal justice system to that of restorative justice. I attach a copy marked Annexure “B”

1.5        The National Prosecuting Authority Predetermined Objectives which also includes ideals of Restorative Justice. I attach a copy marked “C”

  1. It is to be noted that internationally, significance is placed on the shift towards restorative justice. The book Restorative Justice: Politics, Policies and Perspectives, Van Der Spuy et al is a collection of essays on restorative justice and sets out the following: “Restorative Justice has been one of the most significant developments in criminal justice practice and criminological thinking to have emerged over the past two decades. It offers both a philosophy of conflict resolution and model of justice.” Adam Crawford, University of Leeds
  2. Indeed our own democracy was forged through a restorative justice process even in the face of the commission of heinous crimes
  3. It further sets out that the basic Purpose of Law is the creation and maintenance of the condition of peaceful life of citizens. Shane Claiborne writes that Peace is not the absence of conflict but the presence of justice. A counterfeit peace exists when people are pacified or so distracted or weary that all seems calm. True peace does not exist until there is justice, restoration and forgiveness. Peacemaking is not a passive thing. It is about interrupting injustice without mirroring injustice. Disarming evil without destroying the evil-doer.”

 

We are working tirelessly to raise the profile of restorative methods of dispute resolution like mediation, in all disputes from Family and Divorce Matters, to Commercial Matters, Community Matters and Workplace matters.

 

We have many matters in low cost housing construction that could be resolved with wisdom and grace through dialogue processes. I took one such matter, which involves 150 displaced families, to the Ministry of Human Settlements last week. I was so encouraged by the ease with which I was able to gain access to those in the ministry, and their willingness to engage. These are hallmarks of a healthy constitutional democracy. And this may not always be the case. But it is also a product of civil society activating for access and dialogue. We must do so.

I was interviewed last week on SABC’s Cutting Edge on Restorative Justice. Please look out for it on 10 October 2013.

Exciting news today: Gerhard Borstlap joins ADR Network SA as a full time mediator, researcher and corporate strategist. Gerhard is a graduate with a BA in Law and International Relations. He has working experience in Academic Research, International Relations and Diplomacy as well as International Emergency. Moreover, he has a brilliant mind and a kind heart with a passion for human rights. He is also a philosopher in his own right. You can follow him on twitter @gborstlap.

You can follow me on twitter at @sheena_ostjon

Until next time. Peace

Sheena

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