La Teoría del Órgano

Catapano (2018) suggests that if punishment is to be instructive and effective, another path is necessary and that is where restorative justice comes in. An alternative approach based mostly on listening and talking rather than on conveying consequences (Catapano, 2018).

Restorative justice is an evolving concept leading to different interpretations in different countries, relative to context. As a broad term it emphasises alternative methods of addressing issues of crime and harm done to individuals, communities or society. Restorative justice could be seen as a movement within (and sometimes outside of) the criminal justice system, with special focus on the victim, and with a special relevance to marginalized populations like women and children.

Nhlapo (2005) states that the value of restorative justice can be noticed in African thinking and is captured in the African word “Ubuntu‟. As the restorative justice debate

in South Africa is conducted largely in the context of the criminal justice system in general, dispute settlements in the traditional African sphere always entailed a strong restorative element (Nhlapo, 2005:3).

The conventional criminal justice system should tap into the institution of traditional leadership to make a significant contribution to restorative justice in South Africa (Nhlapo, 2005). In essence, traditional leaders are the custodians of restorative justice in most African communities. According to Khunou (2013) the new constitution-based rights of children, international law and especially the general principles of Ubuntu and jurisprudence of African traditional justice created awareness of the child justice system in the new South Africa. The Child Justice Act 75 of 2008 (CJA) was promalgated to institute a criminal justice system for children and the CJA expands on and embeds the principles of restorative justice. Khunou (2013) cites Article 40(1) of the Convention of the Rights of the Child, that reads,

State parties recognise the right of every child alleged as, accused of, or recognised as having infringed the penal law to be treated in a manner consistent with the promotion of the child’s sense of dignity and worth, which reinforces the child’s respect for the human rights and fundamental freedoms of others and which takes into account the child’s age and the desirability of promoting the child’s reintegration and the child’s assuming a constructive role in society.

The CJA and the Constitution of the Republic of South Africa, 108 of 1996 (hereinafter referred to as the Constitution) aim to improve the quality of life of all people and to free the potential of every person by all means possible. The Constitution accentuates the “best interests of children” vide section 28, and children are guaranteed special protection within the domain of criminal justice system.

Apart from the provisions of the Section 28(1) (g) of the Constitution, children that are in conflict with the law, are given special means of safeguarding such as; children are not to be detained and if so, then for the shortest period of time possible; children is to be treated and kept in conditions that is taking the child’s age into account; and children are to be kept separately from adults. In other words, the CJA institutes a

criminal justice system for children that come in conflict with the law, in terms of the values sustaining the Constitution and the spirit of Ubuntu. Ubuntu rejects any form of degradation, abuse or maltreatment (Khunou, 2013).

The basic principle underlying the CJA, is that it diverts matters concerning children who have committed offences, away from the criminal justice and accepts the concept of restorative justice in the criminal justice system in respect of children who are in conflict with the law. Subsequently, restorative justice is defined as:

An approach to justice that aims to involve the child offender, the victim, the families concerned and the community members to collectively identify and address harms, needs and obligations through accepting responsibility, making restitution, taking measures to prevent a recurrence of the incident (Khunou, 2013).

The CJA (section 2) states that the spirit of Ubuntu must be promoted in the child justice system in the following ways:

(i) development of children’s sense of dignity and worth,

(ii) holding children accountable for their actions and safe-guarding the interests of victims and community,

(iii) (iii) reconciling by means of restorative justice, and

(iv) (iv) getting parents, families, victims and other members of the community affected by crime involved in the procedures in order to reintegrate children.

Additionally, the preamble of the CJA recognises the fact that in South Africa, before 1994, many children, in particular African children, did not have the chance to live like children because of circumstances in which they were, and as a result came into conflict with the law. In this context, the CJA entails driving the principles of Ubuntu, aiming at creating a criminal justice system for children who are in conflict with the law in agreement with the underpinning values, not only in the Constitution, but also the spirit of Ubuntu.

Ubuntu emphasises restorative justice in contrast with retributive justice. Restorative justice is seen as a process involving the offender, identifying and addressing harms and obligations so that healing can take place and to put things as right as far as

possible. Khunou (2013) refers to Gibson in his book titled Overcoming Apartheid: Can Truth Reconcile a Divided Nation? in which he place emphasis on restorative justice as significant in the African context of Ubuntu, where Gibson stated that:

In traditional African thought; the emphasis is on restoring evil doers to the community rather than on punishing them. The term Ubuntu, which derives from the Xhosa expression Umuntu ngumuntu ngabantu (people are people through other people) conveys the view that an environment of right relationships is one which people are able to recognise that their humanity is inextricably bound in other humanity. Ubuntu emphasises the priority of ‘restorative’ as opposed to ‘retributive justice’.

Gibson further quotes Arch Bishop Desmond Tutu describing Ubuntu as follows:

Ubuntu says l am human only because you are human. If l undermine your humanity l dehumanize myself. You must do what you can to maintain this great harmony, which is perpetually undermined by resentment, anger desire for vengeance. That is why African jurisprudence is restorative rather than retributive (Khunou, 2013).

The CJA places emphasis on restorative justice as a process in restoring the dignity of victims for example an important form of restoration contains an apology. Consequently, the objectives of the CJA connects with the spirit of Ubuntu centring on the principles of:

(i) rehabilitation of the offender,

(ii) promotion of harmony in the community, (iii) promotion of reconciliation

(iv) compromise.

None of these principles features in the recorded case studies in Chapter 5. The ten individuals were not rehabilitated and in four out of the ten case studies (ES, SM, JH and GC), they were frequently involved in minor offences resulting in the accumulation of high demerits. One learner did not get involved in further offences but was showing signs of antisocial behaviour. In the one case the one learner (SO) became promiscuous and one learner (GG) was charged, within the year, of another three

charges while under the influence of drugs. Two learners left the school and cannot be reported on. In none of the cases were the victims or the victim’s family involved and that created feelings of disharmony in the community. Because the victims were not involved, reconciliation and compromise did not take place.

The CJA presumes that children that comes in conflict with the law will turn their lives around and become productive members of society. The CJA attempts to create a sense of balance between the rights and responsibilities of the child offender, the victim, the family and the community and allows for healing to take place on the basis of the values of Ubuntu, the principle of the indigenous African traditional justice system (Khunou, 2013).

6.2 RESTORATIVE JUSTICE MODELS AS METHODS OF ACHIEVING DESIRED