The Zondo Commission’s hearings into state capture appear to be never ending, prompting calls for other creative ways to ensure that the perpetrators make right the immense harm they inflicted through the rampant misuse and theft of public money. Mike Batley from the Restorative Justice Centre proposes that restorative justice can be an effective way to ensure restitution, and compel the perpetrators to admit responsibility for their actions without overburdening the court system and avoiding years of litigation.
The debate on looking for creative ways to respond to the volume of cases of theft, fraud and corruption emanating from the state capture era has been sparked by a proposal at the Daily Maverick Gathering, as detailed in the Daily Maverick on 9 March 2020. Further debate has followed in the Financial Mail and Daily Maverick. The Restorative Justice Centre published a proposal drawing on the approach of restorative justice and using the mechanism of plea bargaining. This article will explore some additional dimensions to this.
What is restorative justice?
Restorative justice emphasises the fact that repair and addressing harms, needs and causes are the key elements of justice rather than punishment. Punishment seldom accomplishes much by way of addressing the loss that victims suffered or in changing the behaviour of an offender.
Central to this idea of “making right” is the principle of restitution. This is a very old idea and found in a number of texts in the Hebrew Bible:
The Lord said to Moses, “Say to the Israelites: ‘Any man or woman who wrongs another in any way[ and so is unfaithful to the Lord is guiltyand must confess the sin they have committed. They must make full restitution for the wrong they have done, add a fifth of the value to it and give it all to the person they have wronged.’” (Emphasis added)Numbers 5:5-7 (NIV)
This principle is reiterated a number of times in the Hebrew Bible, including instructions for its application in a number of very specific situations.
Inherent in this text is the act of acceptance of responsibility on the part of the perpetrator – “they must confess the sin they have committed”. While this could lead to coercion on the part of others, a broader understanding of a Biblical approach would be to encourage and support people to do that.
This is beautifully expressed in the Sepedi idiom, Ngwana Phošadira ga a bolawe, which loosely translated means that a person who committed an offence and has accepted responsibility should not be punished too harshly.
In “Another country: everyday social restitution”, Sharlene Swartz reviews some of the legal and historical dimensions of restitution, including restoring to the original condition, compensating or making reparations, satisfying the injured party symbolically or materially, and stripping the perpetrator of unjust benefit. Based on the German words “wiederherstellen” and “wiedergutmachung” she draws a distinction between “restoring to the original state” and “making good again”. As “restoring to the original state” is often difficult for many reasons, the Restorative Justice Center suggests that our focus in responding to state capture should be broadly on “making good again”.
We submit that part of “making good again” means that sanctioning those who have participated in state capture needs to be linked to the country’s anti-corruption strategy. The first two pillars of this strategy are:
(1) Support citizen empowerment in the fight against corruption, including increased support for whistle-blowers, and
(2) Develop sustainable partnerships with stakeholders to reduce corruption and improve integrity management.
Our response to state capture needs to demonstrate the personal choices that were made, the impact these had on the people in the immediate context, as well as the enormous damage it has caused our common good. In doing so, we can affirm important public values such as the fact that leadership and holding public office are for the common good and not for private gain.
For this reason, and unlike the authors of the amnesty proposal, the Restorative Justice Centre believes that the public dimensions of holding offenders accountable are essential. This means that the process should take place in a public forum, similar to that used by the Truth and Reconciliation Commission (TRC) and theoretically in our courts on a daily basis.
Following the restorative approach used by the TRC, our proposed approach would be to acknowledge that other harms besides financial loss have been caused, such as the people who were ostracised, suffered setbacks in their careers and perhaps had their health compromised. Apologies and steps to address these harms should form an important part of our response.
Plea bargaining as a mechanism to implement restorative justice
Public sentiment in the face of the ongoing revelations at the Zondo Commission is calling for prosecutions, for perpetrators to be held accountable, for evidence that the rule of law is being upheld, and for citizens’ faith in the criminal justice system to be restored.
At the same time, the current constrained capacity of the criminal justice system, together with the time that complex trials inevitably take, may hinder the system’s ability to meet this need, despite the best efforts of the people involved.
READ – State Capture: Actually, an amnesty would work, 19 March 2020 // Daily Maverick
In view of this reality, we need to find ways to speed up processes and hold perpetrators accountable in ways that are not limited to punitive ways of thinking.
We propose that the mechanism of plea bargaining, as provided for in S 105 of the Criminal Procedure Act, 1977 as amended, be used creatively to accomplish this purpose. Many countries use this mechanism extensively to deal with large volumes of cases, but it appears to have largely fallen into disuse in South Africa.
By pleading guilty in exchange for a less severe sentence, considerable trial time can be saved. To meet the needs of the public, this could be combined with some form of dialogue or mediation with the direct and indirect victims of the crime, resulting in an apology and agreement regarding restitution and compensation for harm and loss. This agreement can be integrated into the sentence.
If the terms of restitution and compensation are onerous without becoming excessively punitive (such as paying back all or most of the money stolen would seem to be an absolute minimum), and if the sentence combines other non-custodial elements where possible, this may have the effect of demonstrating that wrongdoing can be denounced in other ways besides direct imprisonment.
To optimise its effectiveness, this approach should be framed as a specific project that includes a substantial public awareness component – both to encourage perpetrators and legal representatives to make use of the option, and to inform the public of the outcome of cases.
Prosecutors may be quick to dismiss this concept on the basis that people who have committed theft, fraud or corruption during the era of state capture are unlikely to come forward and accept responsibility. In our view that is not a reason to dismiss the concept. The question should rather be directed to our whole society: what can we all do to create a climate that encourages perpetrators to accept responsibility? What role could the Church and other civil society institutions play in this?
Potential benefits of the concept as a whole
Whether the concept is implemented as a special court or part of existing court operations, the potential benefits are:
- Quicker finalisation of trials. This has significant implications for an overloaded system, but also for victims and offenders. It will bring greater certainty to the situation more quickly, as opposed to a matter dragging on without resolution for extended periods of time.
- Victims have the possibility of receiving some form of restitution and compensation, in addition to the repayment of the monies taken, either immediately or over a period. Full and complete disclosure of all criminal activity must take place.
- Offenders are offered the possibility of a non-custodial sentence or a reduced custodial sentence, combined with educational programmes and community service.
- The criminal justice system would be able to demonstrate greater efficiency and effectiveness, as well as growing in credibility in the eyes of the public.
- Free up the judiciary to start to tackle future new cases to facilitate the creation of a society where the rule of law and good governance is respected.
 Swartz, S. 2016. Another country: everyday social restitution. Cape Town, Human Sciences Research Council, p123 – 143