[Home] [Databases] [WorldLII] [Search] [Feedback] South African Law Commission

You are here:  SAFLII >> Databases >> South African Law Commission >> Discussion Paper >> 97 >> CHAPTER THREE

[Database Search] [Name Search] [Previous] [Next] [Download] [Help]

• A Compensation Scheme For Victims Of Crime In South Africa
• 3.1 Introduction
• 3.2 Overview Of South African Law And Allied Schemes Of Relevance
• 3.2.1 Damages In South African Law
• 3.2.1.1 Delictual Actions
• 3.2.1.2 Liability Without Fault And By Virtue Of Legislation
• 3.2.2 Compensation For Occupational Injuries And Diseases
• 3.2.3 The Road Accident Fund Act
• 3.2.5 Reparations Through The Truth And Reconciliation Commission17
• 3.3 Compensating Victims Of Crime
• 3.3.1 Overview Of International Comparison And Experience
• 3.3.2 Arguments For Implementing A Compensation Scheme
• 3.3.2.1 Theoretical Approaches
• 3.3.2.2 Victim Empowerment
• 3.3.2.3 State Responsibility
• 3.3.2.4 Restorative Justice
• 3.3.2.5 Developments In International Law
• 3.3.2.6 Difficulties In Enforcing Offender Accountability
• 3.3.2.7 Compensation Claims Could Benefit Criminal Justice System
• 3.3.2.8 Role Of Compensation In Reducing The Impacts Of Crime
• 3.3.2.9 Dealing With Trauma
• 3.3.2.10 Breaking The Cycle Of Violence Against Women
• 3.3.2.11 Breaking The Cycle Of Revenge Violence
• 3.3.3 Arguments Against Implementing A Compensation Scheme
• 3.3.3.1 State Responsibility And Cost-Benefit Analysis
• 3.3.3.3 Competing Priorities
• 3.3.3.4 Impacts On Criminal Justice System Debatable
• 3.4 Conclusion

CHAPTER THREE

A Compensation Scheme for Victims of Crime in South Africa

This chapter debates the issue of compensation for victims of crime in the South African context. It provides information on the South African law of damages and how currently victims of occupational injuries and diseases, road accidents and political traumas are compensated. The strengths and weaknesses of these schemes are highlighted. Thereafter, the chapter focuses on international experience and best practice with regard to compensating victims of crime specifically. The merits and demerits of setting up a compensation scheme for victims of crime in South Africa are then discussed.

3.1 Introduction

Victims of violent crime in South Africa, and, in fact, across the world, generally feel alienated and frustrated with the criminal justice system (South African Law Commission, Discussion Paper, Project 82, p.8). This is demonstrated by a finding by a Statistics South Africa report (1998, p.65-67) which found that over half of the victims who reported serious crimes to the police were dissatisfied with their interactions with them, with those who experienced more serious and violent crimes being the most likely to be dissatisfied.

Consequently, the status and treatment of victims of crime has received increasing attention in recent years. The South African government is attempting to transform and improve the criminal justice system across the board. It has also developed a Victim Empowerment Programme (VEP) to assist the victimised (see Chapter Two).

Victim empowerment, potentially including systems of compensation, aims to address the negative effects of crime on victims through providing a meaningful role for victims in the criminal justice system. The philosophy of victim empowerment endorses the need for victim-orientated services that are easily accessible within the criminal justice system. Apart from reducing the negative effects of crime, compensation could provide an important symbolic recognition of a victim's suffering and loss and is consistent with the VEP principle of viewing the victims' needs as central. However, no compensation exists for victims of crime in South Africa outside the courts’ prerogative to enforce a restitution order on the offender if convicted and the proposed right to restitution as outlined in the draft Victim's Charter.

The present support systems for victims of crime and violence in South Africa seem to be limited, fragmented, unco-ordinated, reactive in nature and, therefore, ineffective (South African Law Commission, Project 82, p.3). This finding is mirrored by the final report of the Truth and Reconciliation Commission, which notes that ‘victims of crime are the most neglected and disempowered of the role-players in the legal system. They are not being adequately served by the criminal justice system for a number of reasons’ (TRC Truth and Reconciliation Commission Report of South Africa Cape Town: Juta 1998). These reasons, according to the TRC Final Report, are:

• the absence of a professional, motivated and appropriately staffed national police service;
• the inability of the prosecutorial system to prosecute effectively and ensure criminal convictions in a manner that will change the current perception of criminals and potential criminals that their wrongdoing is unlikely to be detected and punished;
• the inability of the Department of Correctional Services to carry out its role of effectively incarcerating awaiting-trial and convicted prisoners.

Furthermore, the TRC, in its recommendations, proposes that the feasibility of establishing a serious crimes compensation fund, as exists in countries like Australia, be examined (TRC Final Report, Volume 5, Chapter 8, 50). It goes on to recommend that a code of conduct for prosecutors be established. This code should facilitate the assisting and empowering of victims by, amongst other things, informing them of their rights to compensation under section 300 of the Criminal Procedure Act (see Chapter 4, Section 4.2 of this report for a detailed explanation).

The need to develop victim services in South Africa clearly remains a priority. International research (D Bruce, G Newham and S Reddy The Police, Victims and the Criminal Justice Process. Johannesburg: Centre for the Study of Violence and Reconciliation 1999; L Camerer and S Kotze Special Report on Victim Empowerment in South Africa. Pretoria: Institute of Security Studies & Department of Welfare 1998) has indicated that the proper management of victims and witnesses leads to increased success in police investigations and enhanced public confidence in the criminal justice system. It is believed (NCPS, 1996, p.19) that empowering victims may contribute to reducing secondary victimisation, repeat victimisation and vigilante violence. It may also help to break the cycle of violence. Compensation for victims of crime, although not a service in the true sense of the word, at least in the developed world, is considered a vital component of the overall package offered to victims.

Within the South African context, however, the extent to which compensation, in a context of limited resources, should be emphasised over and above the need for other victim support measures is a complex and fraught debate. Often the rationale behind the setting up of a compensation scheme is, in itself, weak and unsubstantiated. Even in the United Kingdom, a country with a long-standing compensation programme, the discussions which led up to the establishment of a compensation scheme revealed an extraordinary amount of intellectual confusion (P Cane ‘Compensation for Criminal Injuries’ in Atiyah’s Accidents, Compensation and the Law 250 – 269 edited by P Cane. London: Butterworths 1993). This gap means that developing a motivation for the establishment of a VCS in SA remains incomplete, and must be completed if legislation is to be drafted, since no law should be passed without its objectives being clearly defined and costed (SALC, Discussion Paper, Project 82).

While there are potentially numerous motivations for the introduction of a system of victim compensation, the most common underlying motivation appears to be that it would be a means of doing justice to victims. Most developed nations consider compensation a morally justifiable practice, and a vital component of their criminal justice system and victim assistance services.

However, on reviewing the implementation of victim compensation systems in other countries, it is immediately evident that most are extremely expensive and complex undertakings. Given the high levels of criminal victimisation in South Africa, any system aimed at financially compensating victims of crime could prove to be an unaffordable endeavour. For example, the compensation scheme in the United Kingdom (which provides compensation to about 80 000 people a year) costs the government roughly £200 million (about R2000 million) per annum.

Efficient administration is also central to most compensation schemes around the world which rely on large government or quasi-government units or departments, as well as the co-operation of the police and health services. Given the current infrastructural situation in South Africa's public service, it is likely that the establishment of a compensation scheme in South Africa could be hampered by the lack of effective inter-sectoral co-operation and co-ordination, as well as by the underdeveloped administrative systems in some government departments.

Furthermore, the establishment of a compensation scheme in South Africa could depend on creating a substantially new administrative infrastructure and staff complement. To date, for example, the processing of some 18 000 Truth and Reconciliation Commission urgent interim reparations claims has proved to be an incredibly difficult and protracted process (see 3.2.5 of this report). Such inefficiencies, which have also been seen in the government's processing of pension claims, suggest that there may be little realistic prospect for setting up a new bureaucracy with the purpose of compensating thousands of potential victims.

Compensation schemes also rely on effective co-operation with the police, with the reporting and recording of crime as prerequisites to any compensation process. Crime reporting rates in South Africa are low and police efficiency to verify the exact nature of a crime (this is essential to deciding who gets compensation and the degree to which the person was victimised) is questionable in many areas.

Fraud is also an area requiring careful consideration. The problem of the potential abuse of a compensation scheme by those applying for compensation, as well as by officials working in the scheme, is a concern. These problems are common in countries that have compensation schemes. The risk of abuse of the system, however, can be minimised by legislation that bases the eligibility for compensation on strict criteria and by providing checks and balances in the administrative system.

In contemplating a victim compensation scheme in South Africa, careful thought needs to go into explaining why victims of crime should be given priority over other people in need. Financial pay outs for suffering and financial losses resulting from a rape or violent robbery make moral sense, but these become difficult to justify in a context of limited resources, where poverty alleviation, combating Aids and providing employment all demand increased resourcing.

Thus, in order to consider adequately whether South Africa should set up a compensation scheme, a number of related arguments will need to be expanded and explored. A robust motivation will need to be developed to offset the affordability and practical concerns that have been briefly outlined above. Such a motivation, in the South African context, will also need to show that a compensation scheme will bolster the criminal justice process through improving victims' interaction with the system, rather than undermining it by introducing a new set of burdensome operational procedures.

It is imperative, however, that any new scheme be integrated with current victim empowerment initiatives. It would be a mistake to presume that compensation, even if the motivations are substantiated significantly, could meet the needs of victims. A compensation scheme should be seen as an additional component of a comprehensive victim empowerment programme.

This chapter will focus on the complex debates surrounding the establishment of a compensation scheme for victims of crime in South Africa. It will begin by providing an overview of the South African law and allied schemes of reference relevant to compensation and the making of civil claims. The chapter will also point to some of the key international experiences in relation to granting compensation to victims of crime. Thereafter, the moral, legal and practical underpinnings of setting up a compensation scheme for victims of crime in South Africa, as well as the arguments which mitigate against such an approach, will be debated.

3.2 Overview of South African Law and Allied Schemes of Relevance

Before the arguments for and against the setting up of a compensation scheme in South Africa are explored, it is important to first review what related systems exist for providing compensation, including a brief outline of the law of damages and the current legal remedies for providing compensation to victims.

3.2.1 Damages in South African law

The law of damages deals with the content of the right to compensation. Damages can only be awarded when there is a recognised cause of action on which the recovery of monetary compensation is based.

3.2.1.1 Delictual actions

A delict in South African law is the act of a person which, in a wrongful and culpable way, causes harm to another (J Neethling, J M Potgieter and P J Visser   Law of Delict. Durban: Butterworths, 1990, p.4). The notion of the wrongfulness of the causing of harm to another is an obvious and essential component of all legal systems, and is a basic premise of South Africa’s common law. This premise has also been recognised by the Bill of Rights in the South African Constitution (Act 108 of 1996) which provides that everyone has the right to human dignity (s. 10), the right to life (s. 11) and the right to security of her/his person (s. 12).

There are five elements of a delict: namely an act, wrongfulness, fault, harm and causation.^[8] If one of these elements is missing, no delict exists and, accordingly, no liability. In South African law, a distinction is made between delicts that cause patrimonial financial damage and those of an intentional nature, which cause injury to personality.^[9] The South African law of delict allows a third action for pain and suffering in terms of which compensation for injury of personality is allowed as a result of the wrongful and negligent (or intentional) impairment of the bodily or physical-mental integrity (Neethling et al., 1990, p. 5).

Delictual actions are private law actions. The principal difference between private law and public law is that private law is directed at the protection of the individual or private interest, whilst public law aims to preserve the public interest. Delictual remedies are compensatory in nature, compensating the prejudiced person for the harm the wrongdoer has caused. Criminal sanctions are distinguishable from this in that they aim to punish the offender for the transgression committed against the public interest (Neethling et al., 1990, p. 7). It is important to note, however, that one act may have both delictual and criminal consequences.

The law of delict allows compensation for damage. This compensation takes the form of a monetary award for the impairment or loss suffered by a person. The object of an award of damages is to place a party whose rights have been violated in the same position, as far as money can do so, as if his/her rights had been observed (H J Erasmus and J J Gauntlett 7 LAWSA 10. Durban: Butterworths 1995). In certain circumstances, damage or loss cannot be compensated, in which case damages aim at compensating injury by effecting retribution for the wrong and by satisfying the victim and the community’s sense of justice (Neethling et al., 1990, p. 178).

There is an obligation on victims to take all reasonable steps to mitigate the loss they have suffered. Damages are awarded for pain and suffering, shock, disfigurement, loss of amenities of life and shortened expectation of life where physical and mental injury has occurred. This is additional to damages arising, for example, from pecuniary or financial losses, such as loss of income, and to damages awarded for intentional injury to personality, such as defamation. The amount of damages awarded in cases of physical or mental injury must bear a relation to the loss suffered. This involves a consideration of the intensity of the injury, its nature and duration determined in conjunction with considerations of fairness.

A delictual debt usually prescribes three years after it originated.^[10] The dependants of a breadwinner killed or injured in a wrongful and culpable manner may claim damages for loss of maintenance arising out of their personal right to maintenance from the breadwinner. For such a claim to be successful, a legal duty of support must be proved.

3.2.1.2 Liability without fault and by virtue of legislation

Liability without fault is created in certain instances by legislation. In addition, the courts have also developed the concept of liability without fault over time.^[11] In the case of legislation, the extent of liability is often limited by the law fixing maximum amounts of compensation payable. Legislation will also usually detail the period within which a claim must be lodged, after which they will prescribe.

Compensation schemes are examples of statutory payment schemes that accept liability without the scheme (or the State) itself being at fault. These schemes apply the principles of damages law outlined above to varying extents in their work and in the finalisation of claims. Specific examples of compensation schemes in South Africa created by legislation include compensation for occupational injuries or diseases and for injuries or deaths arising out of road accidents. In the case of occupational injuries or diseases, maximum compensation awards are provided by legislation, with specific amounts attached to specified injuries. This scheme is similar in this regard to Great Britain’s tariff system on which compensation awards for victims of crime are based. In South Africa, legislation also provides for maximum compensation awards in cases of road accidents, and in certain circumstances, according to whether the claimant was travelling in the negligent vehicle or not. However, there exists no statutory cap on the maximum compensation payable by the scheme in cases in which the claimant was not travelling in the negligent vehicle.

Claims made against compensation schemes in practice are usually settled administratively before any court action is taken by a claimant. Where a statutory cap or limit on compensation does not exist, common law principles and legal precedent by way of previous court decisions are used to determine the amount of compensation offered to the claimant. Where a dispute arises between the claimant and the scheme, the claimant is entitled to approach the court for assistance.

Various examples of South African compensation schemes exist. These provide important insights into the structure, functioning, successes and potential pitfalls that could be experienced in the event that a compensation fund for victims of crime were to be established. Such funds have often been plagued by administrative inefficiencies and have been exposed to fraudulent claims. The Road Accident Fund has experienced difficulties with the involvement of lawyers in the application process, and has been required to pay extensive legal costs.^[12] The Compensation Commission has experienced its own administrative inefficiencies and delays in the settlement of claims. The experience of such statutory compensation schemes, it is recommended, should be carefully considered in the event of the establishment of a compensation scheme for victims of crime.

3.2.2 Compensation for Occupational Injuries and Diseases

The 1993 Compensation for Occupational Injuries and Diseases Act (see Appendix Two for full parameters) requires that certain categories of employers contribute to a fund that covers claims lodged by employees for occupational injuries and diseases. Claims can be made to this fund by an employee injured during the course and scope of duty, or if an occupational disease is contracted. A deceased employee’s dependants may also, under specified circumstances, lodge claims.^[13] Employers pay into the fund on a monthly basis, with certain exclusions. Employees do not contribute to the fund. A Compensation Commissioner is appointed in terms of the Act to administer the fund and employees are compensated by the fund.

For compensation to be paid, a claim must be made within 12 months of the accident, death or disease, and an employee must have been off work for 3 days or more. No compensation is payable if an employee’s own misconduct caused the accident, unless death or serious disability resulted, or if medical treatment is unreasonably refused by an employee.

Compensation is payable at a percentage of an employee’s wage at the time of injury, death or disease for permanent or temporary disability, death, medical expenses (for a maximum of two years from date of accident, including medicine) and additional compensation. The fund does not provide compensation for pain and suffering. In cases of permanent disability, degrees of disability are set out in the Act and compensation for permanent disability is paid either as a lump sum or as a pension. A widow/er, common law spouse or dependants may submit a claim for death benefits. Death benefits are paid as a lump sum and a monthly pension.

An objection to the decision of the Commissioner may be lodged within 90 days from the date on which the employee became aware of the decision. The Commissioner is required to convene a formal hearing to review the decision. At this hearing the applicant is entitled to representation by a legal representative or trade union official or family member. The applicant is entitled to call expert evidence. After representations, the Commissioner will make a final decision. This decision is reviewable in the High Court.

It was reported recently that difficulties seem to be plaguing the compensation scheme for occupational injuries and diseases. According to the Senior Deputy Compensation Commissioner, Kefilwe Tselane, R637,4m in compensation and R716,9m in medical bills will be paid out for the year 1999/2000 (Business Day, 15 March, 2000). Approximately 290,000 new claims are reported each year. There are also about 100 000 files from previous years, which are still open, largely owing to outstanding or incomplete documentation from employers and doctors. In the claims environment, the backlog is 15 000 and 10 000 respectively to be handled by the compensation and medical sections.

A review of the records at the Workers Occupational Health Clinic in Woodstock, Cape Town, from 1991 to 1997 shows that 17% of successful claimants, most of them suffering from cancer, died before their compensation was paid out. Of the 22% of claims that were rejected at first submission, 15% were successful on appeal (Business Day, 15 March, 2000). Other major flaws in the system are said to include the facts that pay outs are calculated according to income, and as a result, the system is biased in favour of those in higher income brackets. Lack of compliance with the system by employees has also been highlighted as problematic. Employers do not complete injury-on-duty forms because they want to keep injuries out of the records to keep up their accident-free hours (Business Day, 15 March, 2000).

3.2.3 The Road Accident Fund Act

The Road Accident Fund Act^[14] established the Road Accident Fund (see Appendix Three for full parameters), which pays compensation for physical injury or death (as opposed to proprietary loss or damage) wrongfully caused by the driving of motor vehicles, whether the identity of the owner or the driver thereof, or both, has been established or not.

The fund is obliged to compensate any person (the third party) for any loss or damage suffered as a result of any bodily injury or death caused by the driving of a motor vehicle in South Africa. Compensation is awarded only if the injury or death is due to the negligence or other wrongful act of the driver or the owner of the motor vehicle or of his or her employee in the performance of the employee's duties as employee.

The Act prescribes a limit of R25 000 in respect of the payment of compensation in specified circumstances, including where the injured person was a passenger in or on the negligent vehicle.^[15] An injured party has three years within which to claim compensation, after which the claim will prescribe. Prescription of a claim for compensation does not, however, run against a minor, a person detained as a patient in terms of any mental health legislation, or a person under curatorship. The Act prescribes that any compensation award shall be reduced by the amount of compensation paid in terms of the Occupational Injuries and Diseases Act, Defence Act or any other legislation, should this apply.

Currently, the Road Accident fund seems to be beset by administrative difficulties. A commission of inquiry has been proposed to try and set the system on a sound financial footing. The Road Accident Fund currently has a deficit of about R10bn and had a reported operating loss of R771m in the 1998-99 financial year. (Business Day, August 29, 2000).

1. Other state compensation funds

The Fund Raising Act^[16] provides for the establishment of the Disaster Relief Fund, the South African Defence Force Fund, the Refugee Relief Fund, the State President’s Fund and the Social Relief Fund. Each fund is, in terms of the Act, to be managed by a board of not more than fifteen members appointed by the Minister. According to the mandate of the fund, the board of each fund is tasked with providing assistance to those in need, which is ‘fair and reasonable’. The board may collect contributions, in addition to government funding received, and is tasked with distributing monies in accordance with its mandate. A fund may therefore receive donations from third parties in addition to government funding.

3.2.5 Reparations through the Truth and Reconciliation Commission^[17]

Based on the findings of the Truth and Reconciliation Commission's^[18] (TRC) Amnesty Committee and the Human Rights Violations Committee, the Reparations and Rehabilitations Committee (R&R Committee) was mandated to design a policy of how best to assist those found to be victims. In this sense, the term ‘victims’ includes the direct survivors, family members and/or dependants of someone who has suffered a politically motivated gross violation of human rights associated with a killing, abduction, torture or severe ill-treatment between 1960 and May 1994 in South Africa. The R&R Committee was obligated to make recommendations to ‘reparate’ these victims for the damages they had undergone in the conflicts of the past. To this end, and according to the Promotion of National Unity and Reconciliation Act (hereafter the TRC Act), the TRC had to make recommendations to the President with regard to:

Policy which should be followed or measures which should be taken with regard to the granting of reparation to victims or the taking of other measures aimed at rehabilitating and restoring the human and civil dignity of victims.^[19]

The R&R Committee made such recommendations in the final report of the TRC that was handed over to President Mandela on 29 October 1998.^[20] According to the TRC Act the policy could recommend any reparation measures in the form of compensation, ex gratia payment, restitution, rehabilitation or recognition. The TRC final report makes a number of suggestions that utilised most of these measures. The President and Parliament have to decide whether or how the policy will be implemented.

The TRC opted for an approach that did not utilise a means test for each victim. Seemingly, this was dismissed because of cost, and the resources necessary for grading the psychological and physical injuries of the approximately 18 000 to 20 000 victims. The policy states that relatively equitable urgent and individual financial grants for each person ‘found to be a victim’ should be made available through the government. A range of other strategies (e.g. symbolic measures and offering more services) to assist victims was also recommended.

In line with the demands of the TRC Act, the TRC also had to consider the granting of urgent interim reparations. To this end, the R&R Committee has proposed that the financial component of reparation be distributed in two phases. First, those found to be victims will be given an urgent one-off payment ranging from a baseline of approximately R2 000 up to R6 000 in exceptional circumstances.^[21] Urgent payments began in June 1998 some 18 months after the TRC began operating. In 1998, R600 million was allocated to a three-year cycle for reparations. To date, R32 million has been spent (Tutu, Sunday Independent, 21 May 2000) compensating about 12,000 victims approximately R3 500 each, as part of the urgent interim-reparations process.

After this initial grant, a longer-term individual financial grant scheme is proposed by the TRC. If the government accepts this proposal, it will mean the government will be paying out approximately R2 864 400 000 over a six-year period to some 22 000 survivors. This would work out to roughly R17 000 to R24 000 per victim^[22] for each year over a six-year period, i.e., roughly R 480 million per year. However, government has still not debated this policy substantially in Parliament, despite the fact that it is nearly two years since the recommendations were made.^[23]

The reparation process, although incomplete, raises a number of important issues in the South African context. Firstly, it is important to note that payouts like those proposed by the TRC are not uncommon following political violence and, as a result, governments have had to carry heavy fiscal burdens. The most well known case is that of the Holocaust. Fifty years after the liberation of the Nazi concentration camps, the Federal Republic of Germany has paid out more than $50 billion in the form of reparations to the State of Israel and indemnification to Holocaust survivors (M Wise ‘Reparations’ (1993) October The Atlantic Monthly). The German Finance Ministry estimates that it will pay out almost $20 billion more by the year 2030 (Wise, 1993).

In Chile - a country with a GDP per capita not very much higher than ours - about R120 million per year is still spent by the state on compensation for victims whose rights were violated during the military dictatorship of General Pinochet. Children of those killed during the Pinochet regime have a right to a monthly pension until they reach 25 years of age. For the rest of the beneficiaries, the pension is for life. The monthly pension is between R1 400 and R2 000 for the family of the deceased, depending on the number of dependants. About 800 scholarships a year are also granted to the families of victims. Victims also get free medical and psychological care.

Second, other schemes aside, the TRC opted for an option that did not utilise a means test as they thought it too expensive. Average incomes were used as benchmarks for calculating potential payments. Furthermore, where there were variations in payments (urgent interim payments), these were slight and based on factors like household size and location (urban versus rural).

Third, the TRC was forced, as would be any compensation scheme, to define its criteria for eligibility. It used the categorisation of 'victim' as defined by the TRC to do this. Fourth, the TRC adopted a broader notion of compensation (reparation), which included financial and other recommendations aimed at assisting victims. Fifth, like all the schemes outlined in this section, it is clear that the administration of the schemes has hampered the progress of the TRC. As was noted above, the urgent payments of the TRC took nearly two years to be realised. Clearly, the costs of processes of reparation are also incredibly high if the TRC's proposals (for about 18 000 to 20 000 people) is anything to go by.

Finally, political will clearly has an influence on processes involving matters such as compensation. The lack of government movement on the TRC's proposals is indicative of the fact the TRC process is no longer at the centre of government strategy, and, no doubt, the potential cost of the scheme remains a governmental concern which is currently overriding the principle of a right to claim reparation.

3.3 Compensating Victims of Crime

The above section helped draw attention to some of the legal and practical implications of compensation schemes (in their various forms) in the South African context. Whilst South Africa has experience in the sphere of awarding compensation to victims, none of this experience focuses directly on compensating victims of crime. International experience is, therefore, instructive in understanding different approaches to the basis for, and consequences of, providing compensation to crime victims specifically.

The next section, therefore, turns attention much more directly towards compensation schemes for victims of crime. It begins by briefly sketching an overview of some compensation schemes for victims of crime and then debates the merits (and demerits) of such schemes for South Africa.

3.3.1 Overview of international comparison and experience

Compensation schemes for victims of crime are now to be found throughout the western world (D Greer Compensating Crime Victims : A European Survey Freiburg: Max-Planck Institut 1996) and in Japan. In 1998/1999 the Office for Victims of Crime within the United States Department of Justice contacted victim assistance programmes throughout the world to see if compensation to victims of crime was offered in their country. They received 115 responses. Of these, 29 countries, including the United States, were identified as providing some form of compensation to victims of crime. These were compiled into the International Crime Victim Compensation Program Directory (US Department of Justice International Crime Victim Compensation Program Directory (1998-1999 Resource Directory) Washington D.C: US Department of Justice Office for Victims of Crime 1999), which outlines the parameters of the various schemes (i.e. eligibility requirements, who can claim, procedures, size and type of benefit, ‘compensatory’ costs and funding sources, etc).

In reviewing the directory, it is apparent that few compensation schemes are to be found in the developing world. No African countries have compensation schemes. No evidence of compensation schemes for victims of crime in Latin America was found. In Brazil, there is also no financial compensation provided by the state for the victims of common crime. In some Brazilian states, the government has created services to give assistance (i.e. legal, social and/or psychological) to victims of crime, but no financial compensation is offered.^[24]

There are few compensation schemes in Eastern European and poorer East Asian countries (for example Thailand, Indonesia and so on). Exceptions to this include the Philippines where victims of crime and dependants of homicide victims (including foreign citizens) can receive up to 10 000 pesos (about US$400) in compensation (US Department of Justice, 1999). In both the Czech Republic and in Poland, compensation programmes to provide financial compensation to victims of violent crime are also in operation.

Where compensation schemes do exist in developing countries, or at least in countries with some structural and economic similarity to South Africa, the purpose is generally geared towards acts of political violence related to ongoing civil and political unrest, not to crime. In Israel, although there is no comprehensive scheme of support for the victims of what may be termed 'ordinary criminal violence', priority is given to victims of hostile acts reflecting the wider geo-political situation (K Bloomfield, M Gibson and D Greer A Report Of The Review Of Criminal Injuries Compensation In Northern Ireland: A report to the Secretary of State for Northern Ireland June 1999). Similarly, Colombia, offers a programme to provide financial compensation to civilians if they are victimised by acts of ‘terrorist’ activities, guerilla attacks, combat or massacres (US Department of Justice, 1999). The United States, Spain and France offer compensation benefits to victims of terrorism as well as victims of other crimes.

However, merely listing the countries which have compensation schemes and outlining their broad terms of reference provides little insight into the exact provisions available for victims of crime in each country. The purposes, goals and objectives of various national State compensation schemes differ a great deal. After surveying the compensation schemes of the thirteen European countries that ratified the European Convention on the Compensation of Victims of Crime, Greer (D Greer ‘Concluding Observations’ in The European Convention on the Compensation of Victims of Violent Crime edited by D Greer, 1996) concludes that even between European countries, ‘it is difficult - and even invidious - to compare one with another in any qualitative sense’ (p. 682).

Greer (1996) adds that most state compensation schemes tend to be governed by pragmatic considerations, of which the most important is a State's willingness to prioritise and allocate public funds to compensation. In other words, it is often the size of the State fiscus that defines the nature and extent of many compensation schemes, rather than any underlying or broadly accepted international principles. As a result, most countries, which have compensation schemes (although not all) run the scheme based on a finite budgetary allocation each year.

There is a myriad of different international approaches to compensation. Therefore, to unpack in detail the parameters of each compensation scheme that currently exists around the world would be an enormous task. Information available on different compensation schemes has, therefore, been summarised in the table below

Nonetheless, there is value in reviewing the differing approaches used in other societies with specific reference to how they have integrated pragmatic considerations with the needs of victims of crime. Throughout the report, therefore, reference will be made to relevant comparative approaches and international experience.

Despite the diversity of victim compensation schemes (see summary table below), it is important to emphasise that international compensation schemes are generally complementary to broader programmes aimed at assisting victims of crime, such as victim support services or State attempts to ensure some form of restorative justice. The essence of this was captured in a recent report on compensation for criminal injuries in Northern Ireland where it was noted:

Statutory compensation for criminal injuries does not represent the sole actual or potential source of support for victims...we have to bear in mind the very important part played by individuals and families, by the State and other employers, by the social security system, by private insurance, by voluntary agencies and charitable bodies and by the international funds (Bloomfield, Gibson & Greer, 1999, p.28).

This highlights the importance of locating any compensation scheme within the broader victim-empowerment and criminal justice process. It also highlights the importance of compensation being defined as part of a process that is wider than simply paying out a sum of money.

Summary of the Parameters of Current Compensation Schemes^[25]

Key

3.3.2 Arguments for implementing a compensation scheme

3.3.2.1 Theoretical approaches

Convincing arguments for the establishment of a compensation scheme for victims of crime were developed in two discussion documents (South African Law Commission, Discussion Paper, Project 82; South African Law Commission, Issue Paper 7, Project 82) produced by the South African Law Commission. Both argue for the introduction of a compensation scheme for victims of crime from a number of perspectives or theoretical approaches. These can be summarised as:

• Legal liability theory: this approach is based on the assumption that the State has a legal duty to compensate victims for all damages and losses suffered as a result of the commission of an offence because the State is considered responsible for allowing the crime to be committed.
• Social contract theory: this theory is founded on the philosophy of moral duty and in terms of this approach victims of violent crime have the privilege to receive compensation as opposed to the right. Compensation is granted on the grounds of sympathy, goodwill and humanitarian reasons because the State cannot be held liable for all crimes.
• Accountability theory: this theory would argue that the State makes contributions available to victims of crime and, in so doing, a partnership is formed with the State in combating crime. The best analogy for understanding this approach is that of an insurance scheme whereby the population pay taxes as their assurance and the state offers compensation in return. To try and reduce pay outs the State attempts to maintain a society with minimal crime and the citizens, in turn, act responsibly to keep their tax payments to a minimum.
• Utilitarian theory: this theory argues that the successes of a compensation scheme will benefit the judicial system and, therefore, assist in restoring relationships within the community. The victims know compensation is available and will, therefore, co-operate with the criminal justice system and may even get involved in combating crime.

If one explores the motivations for a compensation scheme, then aspects of each of these theories can apply. However, a sound motivation with a solid theoretical base was not evident in the literature. The next section, therefore, provides a motivation for a compensation scheme based on an eclectic use of the theories outlined above, whilst providing additional considerations that strengthen the argument to set up a compensation scheme in South Africa.

3.3.2.2 Victim empowerment

By far the most convincing reason for the existence of a compensation scheme in the international literature is the compassionate and moral arguments, which are most akin to social contract theory. These arguments, broadly speaking, acknowledge that victims of crime (particularly violent crime) need to be assisted in some way, especially in contexts where the State does little directly to assist them or where the perpetrators remain at large. Such arguments are commensurate with the victim empowerment approach, which stresses that those victimised by violent crime should be treated with dignity and assisted in whatever way possible. In this respect, comprehensive victim empowerment would include not only assistance through the provision of service and assistance, but, in some cases, financial compensation for losses endured.

There is evidence to show that crime has been increasing in South Africa over the last thirty years. The number of offenders apprehended, however, has not necessarily increased at the same rate. It is estimated in South Africa, for example, that one in seven murders, one in 13 reported rapes, one in 34 armed robberies, one in 50 car thefts and one in 55 car hijackings results in a conviction (H C Cawthra with G Kraak ‘Annual Review: The Voluntary Sector and Development in South Africa 1997/1998’ (1999) Development Update Johannesburg:.South African National NGO Coalition & INTERFUND; Steinberg, 1999). On the whole, only 5.4% of crimes reported to the police result in conviction (South African Law Commission, 2000, p.18). One of the results of this is that 41% of South Africans would either ‘never’ or ‘hardly ever’ trust the police to investigate a crime or catch criminals (Reality Check ‘Reality Check Survey of the Attitudes of South Africans’ Cape Times, The Star, The Mercury, Pretoria News, Diamond Fields Advertiser and Sunday Independent April 28 1999).

This highlights the importance of improving the rates of arrest and conviction; a process which the South African government is exploring on a number of fronts (NCPS, 1996; SALC Sentencing Qualitative Research Report, 2000). However, it also highlights the importance of putting mechanisms in place to assist the victims whose cases will not get to court and for whom redress directly from the perpetrator is impossible.

Even where a conviction takes place, international experience suggests that emphasising compensation from the perpetrator will produce poor results. In South Africa, it has been shown that the majority of accused persons do not have the means to compensate their victims (South African Law Commission, 2000, p.74). Moreover, it has been argued that it is particularly difficult or inappropriate for accused people to be expected to pay compensation when they are imprisoned for an extended period and, consequently, have no earnings (South African Law Commission, 2000, p.74).

Even in Europe, where criminal justice systems are significantly better resourced than in South Africa, payments made by offenders to victims occur in relatively few cases (Greer, 1996). This is because offenders, when apprehended, are generally poor and unable to make payments to the victim. Even in cases where victim-offender mediation has taken place, it is difficult to believe that compensation will represent more than a small proportion of the losses suffered by the injured victims or their dependants (Greer, 1996). In South Africa, it seems that compensation is more applicable where the court can suspend a sentence, but this is not possible under the current Act that defines the application of compensation orders (South African Law Commission, 2000, p.74). In any event the suspended sentences does nothing to foster the capacity to pay if the offender is unemployed.

Therefore, a compensation scheme for victims of crime, along with a comprehensive victim empowerment programme, could meet some of the needs of victims whose cases do not reach court or where compensation from the perpetrator seems unlikely. Simultaneously, a compensation scheme could build confidence in the criminal justice system by demonstrating that it is a system that is sensitive to the needs of victims. This could encourage victims to form a partnership with the State to combat crime and would clearly enhance reporting rates.

3.3.2.3 State responsibility

One response to the arguments made above could be that the State already provides a range of social welfare benefits to victims of crime in the form of State medical facilities and legal aid (in some cases, although, mainly to offenders). Why, therefore, should crime victims be given direct financial support over and above what is offered?

Firstly, the support services available to victims of crime in South Africa are minimal (Camerer & Kotze, 1998; B Hamber ‘Have No Doubt There Is Fear In The Land. An Exploration Of The Continuing Cycles Of Violence In South Africa’ (1999) Jg 7, Nr 1+2 Zeitschrift für Politische Psychologie 113-128; NCPS, 1996; G Simpson ‘Crime and Violence: The Need for Victim Support in South Africa’ (1996) in Putting Victims on the Agenda, Proceedings of a National Workshop on Victim Empowerment and Support (Monograph Series No 7) edited by L Camerer and J Nel Pretoria: Institute for Security Studies). Secondly, the criminal justice system is beleaguered with inefficiencies and the support that victims get at police stations and in some health facilities are ineffective (South African Law Commission, Project 82, p.3). Thirdly, state legal aid services are in disarray. Although the agency is slowly being hauled back onto a sound financial footing, the board is reportedly plagued by maladministration and owes lawyers more than R80m for work done during the past three years, resulting in many lawyers refusing to take on more cases (Business Day, 20 July 2000).

Finally, the costs of crime, as was shown in Chapter Two, can far exceed the type of services offered by the State, such as repairs to a home following a crime, loss of income over an extended period of time, vocational retraining and so on. Given this, it would make sense, if a State had the resources, to assist victims of crime practically with some sort of compensation.

One of the key premises on which state-funded compensation is based is that the State is under an obligation to maintain law and order, and that the commission of the crime is a result of the failure of the State to do so effectively (legal liability theory). If one approaches the argument from the point of view of State liability, the argument rapidly moves beyond the parameters of merely practical social security assistance to the victim. In this respect, compensation to the victim becomes effused by legal notions of the victim’s right to embark on civil litigation against the State. Compensation for the victim of a criminal offence becomes, in the context of a State compensation scheme, a claim against the State for personal injury caused.

However, although such a claim rightfully exists against the offender, when it is the State against which the claim lies, this becomes more complex and brings the social liability theory into question. No countries that grant compensation to victims of crime accept that the reason for granting compensation is based purely on a notion of the legal liability of the State. As was recently stated by the team reviewing the criminal compensation scheme in Northern Ireland:

Neither in the United Kingdom, nor in any other jurisdiction of which we have knowledge, does the State regard itself as a kind of surrogate offender (Bloomfield, Gibson & Greer, 1999, p.27).

Greer (1996) concludes that State compensation is not in general a matter of ‘right’ governed by recognised and entrenched legal principles - a situation very different to the rights that govern the right to claim from the offender or for the right to a social benefit.^[27]

As early as the 1960s in Great Britain, the Home Office working party, which looked into the establishment of a compensation scheme, had begun to cast doubt on the state accepting liability for injuries. The rejection of the idea of state liability in Great Britain is captured by Cane (1993) when he summarises the 1961 findings:

[The idea that the State is liable] was a fallacious and dangerous doctrine', because the state could not possibly protect its citizens from attack at all times and all places, and because, in any event, if there was such a duty it would be impossible to confine it to personal injury as opposed to damage to property (cited in Cane, 1993, p.253).

In a recent consultation paper produced by the British Home Office this position was reiterated:

Ever since the scheme started successive Governments have made it clear their view that the State is not liable for injuries caused to people by the acts of others. The guilty party is the offender and, in an ideal world, it should be the offender who compensates the victim’ (Home Office ‘Compensation for Victims of Crime: Possible Changes to the Criminal Injuries Compensation Scheme’ (Consultation Paper) UK: Stationery Office Group 1999 p. 4, Section 11).

Apart from the legal issues, it is understandable from a financial perspective why the State is reluctant to admit liability and it appears that this has become the international norm. Therefore, most compensation schemes, as was noted briefly above, view compensation as a social benefit, or an act of State benevolence. As social contract theory notes, there is a moral duty on States to compensate and, in this regard, victims of violent crime receive compensation as a privilege as opposed to a right.

State compensation schemes are ‘essentially a symbolic act to show their concern for victims’.(Miers cited in L Meintjies-Van der Walt ‘Towards victims' empowerment strategies in the criminal justice process’ (1998) Vol 11 No 2 South African Journal of Criminal Justice p. 163). Other examples of compensation schemes have been motivated on grounds of being about ‘a social motive to ensure the pain and suffering of victims and distress to relatives is not increased’ (Bloomfield, Gibson & Greer, 1999, 27). But, in essence, state compensation is a form of ex gratia payment made as a result of State benevolence (Greer, 1996).^[28] An expression of public sympathy (Cane, 1993; L Zedner ‘Victims’ The Oxford Handbook of Criminology edited by M Maguire, R Morgan and R Reiner Oxford: Clarendon Press 1997603-605), or that ‘governments recognise that the public feel a sense of responsibility for, and sympathy with, the innocent victims of a crime of violence (Home Office, 1999) are also frequently cited motivations. In this sense, compensation is an expression of public sympathy rather than obligation.

Furthermore, in the international context, compensation can be understood as existing on a continuum. On the one end is the so-called minimalist approach (which in reality could total up to cost the state a substantial amount of money), which is geared towards providing a basic amount to cover financial losses related to the crime. This can be called social security compensation (Greer, 1996). As was noted in Chapter Two, violent crime is associated with a number of costs both for the individual, as well as for the society as a whole. Using the social security argument, compensation could be considered to be an additional practical component of victim assistance with its primary function being to assist with costs associated directly with a crime, such as loss of earnings or medical expenses that extend over and above State care or welfare (such as corrective surgery or vocational retraining).

On the other end of the continuum is compensation that can be understood to be closer in nature to that of a general damages award which aims to place victims in the position they would have been in prior to the offence, to the extent that money can achieve this (see 3.2.1.1). This could be described as full compensation. Such an approach may extend further than a social security benefit to include other 'costs' associated with the crime. For example, pecuniary loss, physical and psychological injury, loss of amenities, pain and suffering, and moral damages. This end of the spectrum is far more difficult to implement, particularly within the context of limited state funds.

3.3.2.4 Restorative justice

Providing compensation is also consistent with the restorative justice approach to criminal justice. In this sense, compensation is based on the recognition that crime is not only a wrong against society, and the State, but is more fundamentally a wrong against the victim. In the restorative justice paradigm, crime is seen as a violation of people and relationships. Crime, which can be a violation of the physical self or of property, creates the obligation to make things right and, as such, justice involves the victim, the offender, and the community in a search for solutions which promote repair, reconciliation, and reassurance (H Zehr Changing Lenses: A New Focus for Crime and Justice Ontario: Herald Press 1990 180).

Restorative justice further implies mechanisms within the society that can ensure greater participation in the criminal justice system by victims, as well as ensure greater structured and facilitated contact between victim and offender. This allows for greater information between the victim and offender and an opening of the door to restitution (a way of making amends to the victim). Some theorists (Christie, Wright, Ashworth, in Zedner, 1997) have argued that one of the primary aims of the criminal justice system should be to compensate victims for the wrong done to them. Barnett (Barnett, 1977 in Zedner, 1997, p.287-8) writes:

Justice consists of the culpable offender making good the loss he has caused... Where we once saw an offence against the State, we now see an offence against the individual.

In this sense, restorative justice demands consideration of approaches such as that of offering compensation - where appropriate to victims - whilst empowering them through ensuring their participation in the criminal justice system (South African Law Commission, Project 82, p.3). There are two mechanisms to ensure that compensation is made to the offender, as have been touched upon earlier in this report. One to is obtain compensation directly from the offender (restitution). The other is for the state to compensate the victim. Each mechanism is premised on a different understanding of who is responsible to the victim of crime because of the practical concerns about recovering funds directly from the offender.

In general, most developed countries seek a balance between the social security approach and full compensation. Operational compensation schemes generally attempt to make payments in a manner which is broadly proportionate to the injury, or at least takes the injury into account, but few offer full and complete compensation including the acknowledgement of moral damage.

However, having said that the right to compensation is not established internationally and that, as a result, most countries favour the payment of partial rather than full compensation, it is important to acknowledge that recently some new moves and principles are being established internationally with regards to the issue of the right to compensation and the parameters of obligation with regards to granting compensation.

3.3.2.5 Developments in international law

The UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power^[29] (see Appendix Four for full outline) calls for a greater responsiveness of judicial processes to the needs of victims, and for victims to be treated with compassion and respect for their dignity. This declaration provides that when compensation is not fully available from the offender or other sources, States should endeavour to provide financial compensation to:

• victims who have sustained significant bodily injury or impairment of physical or mental health as a result of serious crimes;

• the family, in particular dependants of persons who have died or become physically or mentally incapacitated as a result of such victimisation.^[30]

The declaration encourages the establishment, strengthening and expansion of national funds for compensation to victims to ensure that they receive the necessary material, medical, psychological and social assistance ‘through governmental, voluntary, community-based and indigenous means’.^[31]

Although this declaration could in no way be evidence that a full and unqualified right to compensation exists, it does start to move the debate towards trying to establish international norms with regards to compensation. Governments, such as South Africa, that would see them themselves as trying to maintain such declarations are, therefore, being encouraged to establish victim compensation schemes and adequate victim empowerment services.

Furthermore, the right to compensation is currently being built into the legislation aimed at establishing the International Criminal Court (ICC). Although this process is aimed largely at extensive human rights violations, generally associated with political conflict and genocide, commentaries on the ICC hold much similarity with the needs of individual victims of violence. Furthermore, the issue of rights to reparation are being entrenched within the ICC statutes.

A commentator recently argued that:

Victims have a wide range of needs which must be met if the process of healing and reconciliation is to take place. They need to have the opportunity to speak the truth: to receive answers, and official acknowledgement concerning the violations. They need to be protected from further harm. They need to be involved in the judicial process. And they need compensation, restitution and rehabilitation. All these needs, now largely recognized in international law, have been translated into rights...and in order to do justice for victims, the ICC (International Criminal Court) must be empowered to address their rights and needs.^[32]

The Rome Statute of the International Criminal Court^[33] provides in Article 79 for the establishment of a trust fund for the benefit of victims of crimes within the jurisdiction of the Court, and of the families of such victims. It allows the Court to order that money and other property collected through fines or forfeiture be transferred, by order of the Court, to the trust fund.

Article 2(3) of the International Covenant on Civil and Political Rights^[34] provides that each state party to the Covenant undertakes to ensure that any person whose rights or freedoms recognised in the Covenant are violated, shall have an effective remedy and shall have such right determined by competent judicial, administrative or legislative authority. The rights to life, not to be subjected to torture or to cruel, inhuman or degrading treatment or punishment, to security of person, and not to be subjected to arbitrary or unlawful interference with his/her privacy, family or home could all be argued to be the applicable rights. The African Charter on Human and People’s Rights^[35] provides for the right to security of person, to respect for life and integrity of person.^[36] These rights could be argued to extend to the rights of victims of crime.

3.3.2.6 Difficulties in enforcing offender accountability

But can compensation serve other ends outside of the rights and benevolence or social contract theory debates outlined above? Specifically, can compensation as a mechanism strengthen the criminal justice system? And, furthermore, can compensation actually build the restorative justice approach to criminal justice?

In recent years, research about victims has raised questions of the purpose of the criminal justice system and the place of victims within the system. Some victim surveys indicate that victims do not always want offenders to be punished. Furthermore, the more information available to people about an individual crime, the less punitive they tend to become in their view about the punishment of the offender (Schonteich, 2000, p.70). Many would welcome the opportunity for reparations (Zedner, 1997, p.603).

Where the offender makes reparation, the responsibility for ‘making right the wrong’ is born by the offender. Reparation (restitution) in this sense is part of a positive restoration of the relationships between victim and offender which, in the restorative justice framework, is seen as crucial to the process of healing (Zehr, 1990). The offender is also held accountable to the victim for the offending behaviour. However, as was noted earlier, ensuring that offenders make restitution to offenders is not always possible. Therefore, most compensation schemes do not operate on a mutually exclusive basis, but look to a combination of obtaining restitution from the offender, with restitution being the preferable option.

The South African Law Commission is presently considering the possibility of increasing the capacity of a criminal court to order the offender to pay compensation to the victim in cases of pecuniary loss, or where damage is easily ascertainable (Draft Sentencing Framework Bill, 2000, Section 28). The draft bill provides that where the amount of actual damage or loss exceeds the amount of an award, the additional amount can be claimed in civil action (Section 28(3)). However, this process can only begin once the offender has been convicted of the crime. This is problematic, as was indicated earlier, because studies indicate that only 5.4% of crimes reported to the police result in successful convictions.

Thus, most victims would be excluded from the possibility of receiving compensation. Potentially a State-funded compensation scheme could make up for this deficit to help deal with the fact that, in reality, ‘offenders are not always caught or even identified, and many lack the means or will to compensate their victims’ (Home Office, 1999, p.4, Section 11). The development of compensation schemes can ensure that the initial funds are always sought from the perpetrator before other compensation benefits come into play. If this is tied to a comprehensive victim-offender mediation process (voluntary for victims), this further increases the likelihood of such restorative mechanisms being introduced. This can have the benefit of agreed restitution from the offender.

A compensation scheme, if the parameters are drawn correctly, can make provision for getting funds back from the offender and bringing them into the process, even if this initially only includes a small number of offenders. Such an approach could, at least at the level of broad principle, strengthen the development of a restorative justice approach to dealing with crime. Such an approach is also commensurate with building a human rights culture.

3.3.2.7 Compensation claims could benefit criminal justice system

Provisions stipulated within most compensation schemes demand that the crime is reported timeously and that the victim co-operates with the police. This could result in greater reporting of crime and co-operation with the police as compensation is not generally available within the international context without such basic conditions being met. In essence, it is in the victim’s financial interest to co-operate with the police in much the same way that those who are insured are required to report crime to get the benefits of their insurance since crimes for which insurance exists are reported more frequently than uninsured crimes. It should follow that if the likelihood of compensation exists, victims will be encouraged to report crime.

These arguments can broadly be considered to be part of utilitarian theory and doing justice after the commission of crimes, which argues that the successes of a compensation scheme will benefit the judicial system and, therefore, assist in restoring relationships within the community. Furthermore, because victims know compensation is available if they co-operate with the criminal justice system, they may even get involved in combating crime.

Zedner (1997) indicates that some have suggested that compensation essentially constitutes a ‘sweetener’ in relation to the State’s reliance on victims. In those countries where it is provided, compensation is usually made conditional on victims giving their full co-operation to the process of investigation and prosecution (where this occurs) of the alleged offender.

For example, by offering compensation, the state can increase the legitimacy of the criminal justice system as a whole. Greater legitimacy will, in turn, result in more co-operation and reporting, strengthening the criminal justice system by keeping victims involved, and so on. Convictions may also increase in number as more cases will be finalised in court. Furthermore, it also can create a greater sense of citizen and state cohesion (accountability theory), generating feelings that a partnership with the state exists between the state and its citizens in combating crime.

In this sense, it could be argued that a compensation system could substantially contribute to the transformation of South African society. Such a system could draw people whose lives are lived outside of the net cast by the modern criminal justice system into the system - a system which is built on respect for due process and other's rights. If this is correct, such a compensation scheme could become an important tool in the democratisation of South African society and in the expansion of the sphere of rights to encompass the numerous victims of crime who today live without the protections afforded by the Bill of Rights.

3.3.2.8 Role of compensation in reducing the impacts of crime

As was shown in Chapter Two, crime, and particularly violent crime, has a range of negative impacts and costs for the victim. A compensation scheme could provide individuals with some funds to offset the initial impact of the crime through providing them with a 'safety net'. As such, compensation serves a social function by preventing a gross decline in the economic circumstances of individuals and their immediate families (Bloomfield, Gibson & Greer, 1999, p.27). This ensures that the individual is not disadvantaged by the crime, which can cause incremental disadvantage over time, creating additional burdens on the State, family and individual.

Compensation, in this sense, should not be understood as a reward, but rather monetary assistance which can aid people in dealing with the impact of a violent crime, and with some of the costs associated with a crime (from the social security perspective). Any compensation would be seen as the last resort once other avenues have been exhausted, such as private insurance, i.e., the principle of subsidiarity. It is arguable that early intervention by way of compensation and assistance to victims of crime could save the State money in the long run. Similarly, citizens who are assisted regain their status as active members of society more quickly and can begin contributing to their own well-being and that of others sooner than would otherwise be the case.

3.3.2.9 Dealing with trauma

Compensation can also help, amongst other strategies, to address the trauma following violent victimisation. Psychologically speaking, paying compensation can play an important role in processes of opening space for bereavement, addressing trauma and ritualising symbolic closure (B Hamber and R Wilson, R ‘Symbolic Closure through Memory, Reparation and Revenge in Post-conflict Societies (Paper presented at the Traumatic Stress in South Africa Conference, Parktonian Hotel, Johannesburg, South Africa) 27-29 January 1999). Compensation can acknowledge and recognise the individuals’ suffering and tell them that their society takes their suffering seriously. Self-blame, although generally unfounded, is also common among survivors of violence and can be debilitating for many individuals as they feel that they were to blame for what happened to them. Compensation can serve as a symbolic but important way of saying that the victim was not responsible for what happened. Compensation can make it clear that others were to blame and that the victim was innocent.

Compensation can serve as a focal point in the grieving process, and this can aid recovery by allowing individuals to focus exclusively on their grief symbolically through compensation. Victims of crime generally turn to the criminal justice system or community/traditional justice processes as a context in which they externalise their grief, loss and anger, and seek to come to terms with it. Compensation, not merely as a practical help, but as a symbol can mark the point of moving onto a new phase and represent individuals’ mastery over the past crime. What is more, a compensation scheme raises the public consciousness about the difficulties faced by victims of crime and the moral responsibility of assisting those in need. It also gives the victims a practical sense of community support and recognition of the plight of victims of violence.

3.3.2.10 Breaking the cycle of violence against women

Compensation can also contribute to breaking the cycles of violence that ravage South Africa. In the domestic situation, for example, women often cannot leave an abusive home owing to financial dependence. A compensation scheme for women who are victimised violently can assist them by making some funds available allowing them not only to treat their injuries, but also to leave the home. The idea of making some funds available could be said to be consistent with the idea that women who are encouraged to put money aside whilst in abusive relationships have more likelihood of getting out of such relationships (J Campbell Identification and Intervention with Women Victims of Aggression in the Health Care System Paper presented at Prevention and Control of Aggression and the Impact on its Victims Conference, University Of Valencia, Spain July 9 – 14 2000). A compensation scheme could provide such money, albeit on a limited scale.

Furthermore, most compensation schemes will only compensate people in the domestic situation if they are prepared to press charges against the offender. This, with the support of the money one could gain through compensation, could assist women to get out of abusive relationships. It could also increase the prosecution rate of offenders for domestic violence, which is currently very low.

However, this in no way suggests that providing compensation would be a miraculous solution to the ubiquitous problem of domestic violence. Many women withdraw charges against their abusive partners not merely because they remain financially dependent. Some will not prosecute out of fear of the partner's reactions to an investigation and trial. Other reasons can include pressure from family members, withdrawal of long-term financial resources in the event of the partner's imprisonment, or hope that the partner will fulfil promises to reform. In the face of these complexities, victim compensation may provide only a limited incentive for leaving abusive relationships, pressing charges and going to court. Therefore, like most arguments in the victim empowerment arena, compensation is likely to work well only in so far as such a scheme exists within a context of a broader victim empowerment programme and recognises the special needs of women victims of violence.

3.3.2.11 Breaking the cycle of revenge violence

Morris (1987) asserts that victims of criminal violence, if untreated, are at risk of perpetrating acts of retributive violence, or for displacing their aggression within the familial context. Some victims of violence in South Africa have begun committing violent acts themselves. These actions are often associated with vigilantism and self-administered ‘justice’ (NCPS, 1996). Summary justice carried out by community members is a frequently preferred alternative to the criminal justice system (. It appears, at least on the surface, to be quicker and a more direct method of dealing with crime (cf D Bruce and J Komane ‘Taxis, Cops and Vigilantes: Police Attitudes towards Street Justice’ 1999 No 17 Spring Crime and Conflict also at website: http://www.wits.ac.za/csvr/papdb&jk.htm; Hamber, 1999; M Shaw ‘Dangerous Years: Whites Perceive Crime As The Greatest Threat To SA, And There Is Evidence That Blacks Are Coming Round To This View’ Finance Week 9 January 1997).

Increasing reports of this type of community and individual action against suspected criminals has been reported (Cape Times ‘Crowd Demolish Alleged Rapists’ Shack’ January 30 1997; Citizen ‘Witnesses Silent On Lynch-Mob Killings’ January 12 1999; Sowetan ‘Man Stoned to Death’ January 15 1999; Weekly Mail & Guardian ‘Police Worried About The Rise In Mob Action’ February 14-20 1997a; Weekly Mail & Guardian ‘2000 Take Mob Action Over Crime’ February 14-20 1997b). A nation-wide survey by Market Research Africa in 1997 indicated considerable support for vigilantism among South Africans; one fifth of black respondents believe that it was 'sometimes right for a vigilante group to physically hurt a suspected criminal' (M Schönteich ‘Vigilantes: When The Judicial System Fails...’ 1999 No 20 Frontiers of Freedom, Second Quarter 18-23). It is likely that these results would not differ fundamentally in the White community - particularly given the widespread support for the reintroduction of capital punishment.

The National Crime Prevention Strategy (1996) argues that victim empowerment can result in decreased crime if victims are treated and supported. Compensation can add to the support of victims, thus decreasing their general sense of dissatisfaction with the criminal justice that may lead victims to be involved in vigilante action. At very least it would help prevent the pubic perception that the criminal justice system does little for victims of crime.

In addition to these arguments, the compensation of victims is a means of obtaining the co-operation of victims in the criminal justice process, which is vital to an effective criminal justice system. Without the co-operation of the victim in reporting crime, in furnishing evidence, in identifying the offender, and in acting as witness in court, most crime and criminals would remain unknown and go unpunished (Zedner, 1997).

3.3.3 Arguments against implementing a compensation scheme

3.3.3.1 State responsibility and cost-benefit analysis

It is difficult to dispute the moral and compassionate arguments for the establishment of a compensation scheme for victims of crime. Seemingly, people have been innocently wronged and where this has had enormous personal implications, it would, on humanitarian grounds, make sense to try to compensate these individuals in one way or another.

However, according to Cane (1993, p.253), the real question is not whether these individuals should be compensated or not, but rather why the State should compensate them over and above the benefits available to other citizens. Cane (1993) asks why government should select yet another group of unfortunates for special treatment? Is the justification that the State does little for victims of crime sufficient to argue for increased benefits for a minority of crime victims at the expense of the generality? The answer is not simple, especially in a context where there are competing needs for such basic services as water, sanitation and electrification.

Clearly, as was argued above, crime (and particularly violent crime) has a range of personal impacts on the individual that would not be addressed by social security benefits. Further, the cost implications of violent crime to the state, certainly in South Africa, are enormous in terms of the loss of productive human resources and other costs such as providing health care for victims.

However, this argument could also be made to motivate or justify other issues urgently requiring funding and could be taken as an imperative to limiting the extent of State responsibility in this regard. Even within the field of victim empowerment, it could be argued that, with limited resources, other aspects of improving the lot of victims, or perhaps the criminal justice system as a whole, should be prioritised over and above compensation. The debate then becomes one about what issues need to prioritised and how State responsibility can be prioritised and strategically limited. The decision whether a compensation scheme is set up instead of another social service programme becomes one based on a cost-benefit analysis to the society and the State.

3.3.3.3 Competing priorities

Another way of looking at such arguments is to say that there are other parts of the criminal justice system that could be prioritised and bolstered in lieu of compensation. A good example of this is the issue of witness fees. As Zedner (1997) indicates, participation by the victim in the criminal justice process entails further costs in terms of the ‘time, energy and stress of assisting the police with their investigation, and for a few at least, the trauma of giving evidence as a witness in court’ (p. 604). This applies not only to victims but also to witnesses generally (cf. Bruce, Newham & Reddy, 1999). In particular, it applies to the minority of witnesses (and victims) who are required to give evidence in court.

Some system of offering financial assistance to witnesses does exist in South Africa in that there is provision for the payment of witness fees. However, there appears to be little attention given to policy development on this issue. There have been no analyses conducted on questions concerning how effectively the system for payment of witness fees is operating or how it is structured. It may, for example, be a more appropriate area to consider, at least in the short term, than establishing an extensive victim compensation scheme.

It could be argued that the issue of witness fees (in a country with limited resources) could be considered part of the issue of compensation, even though it applies to witnesses, and not just victims who are witnesses. Here the compensation is not intended to off-set the costs for the victim of the act of victimisation, but rather to off-set the costs to the victim, or other witnesses, of lending their assistance to the criminal justice process.

Following this argument, witness fees could be used as an incentive for co-operation with the criminal justice system where it extends to attending court and giving evidence. Rather, the proposal is that witness fees should be optimised so as to minimise financial and other disincentives to participation as a witness in the criminal justice process. Witness fees can be used not only to motivate, but also to compensate witnesses for losses associated with providing assistance to the criminal justice process.

Of course, like most arguments in the difficult area of criminal compensation, there are complexities. As suggested in a recent Law Commission discussion paper (No. 90, The Application of the Bill of Rights to Criminal Procedure, etc), one implication of the Constitution for the system of witness fees would appear to be that witness fees should be paid equally to prosecution and defense witnesses. Also, would witnesses found to be untrustworthy be compensated for their time and co-operation with the courts? Furthermore, there is a wide disparity between levels of income in South Africa. It is debatable whether it is realistic to aim to compensate persons for time spent, or loss of income relating to, co-operation with the criminal justice process at anything other than a minimal rate.

Seeking to improve the system of paying witness fees is also not likely to be free from complexities of an administrative nature, then again nor would a compensation scheme or any other system of providing state funds. Another difficulty is that the central issue that motivates many other compensation schemes, namely that offenders are not always caught or identified, and, therefore, very few victims benefit from the potential of a civil claim could apply equally to witnesses, who will come to court only if a trial is held.

Witnesses make up a minority of those interacting with the criminal justice system; witnesses who are also victims make up an even smaller number. To expect that bringing them into the system will significantly alter the face of the criminal justice system and reduce victimisation is unrealistic. However, what is being suggested is that if one accepts the limited resource arguments mitigating against a compensation scheme, there may be other ways that minimal funds can be used to bolster aspects of the criminal justice system or victim empowerment.

There are other potential areas where resources could be directed apart from or in addition to a compensation scheme. For example, additional financial support to trauma units to ensure that victims of crime receive adequate medical attention could be provided. The Disability Grant Programme could be supplemented so that those disabled by crime are sufficiently supported. Finally, emergency medical care for rape survivors, including the provision of anti-retroviral medication, could be considered. Each of these suggestions are discussed in detail in Chapter 8, section 8.5 of this report.

Clearly, therefore, the decision in a country such as South Africa to set up a compensation scheme would need to be seen in a context of competing needs and priorities. Even if we accepted, in principle, that the harm and losses that people suffer as a result of crime are unfair and that victims therefore have a ‘right’ to compensation, this right itself would need to be balanced against others in a context of limited resources. If this is accepted, then a ‘right’ that needs to be recognised to be of greater standing than the right to compensation is the right of South Africans not to be exposed to victimisation. Using this line of reasoning, it would follow that without prioritising the latter we can never hope to begin to engage effectively with the former issue of compensation.

Therefore, it is clear, that above all else, the major arguments against a compensation scheme are of a pragmatic and fiscal nature. It is such a fact that Greer (1996) concludes, after reviewing the compensation schemes across Europe, that: ‘State compensation tends to be governed by pragmatic considerations, of which the most important appears to be the priority which the States are prepared to give victim compensation in terms of the allocation of public funds’ (p.682).

3.3.3.4 Impacts on criminal justice system debatable

The arguments made earlier about the impact of a compensation scheme in developing a more effective criminal justice system are also debatable. There are claims that compensation schemes do not improve the reporting of crime (cf. Doener et al., 1976, Doerner, 1978 & Shapland, 1981, cited in South African Law Commission, undated). This research was generated over twenty years ago and in contexts fundamentally different to that of South Africa, which may suggest that it is not applicable. However, there is also no current research that specifically suggests that compensation schemes succeed in encouraging people to participate in the criminal justice system, or that reporting rates rise substantially after their introduction.

What we do know, however, is that countries that have relatively effective criminal justice systems, also tend to be the countries with compensation schemes and a reasonable supply of resources. Whether countries with relatively effective criminal justice systems (and resources to make them such) create conditions conducive to developing compensation schemes, or whether having active compensation schemes has steadily helped build the criminal justice system, or both, remains a moot point which is unsubstantiated in the international literature or research.

Other arguments raised in the previous section focused on the ability of a compensation scheme to help improve the legitimacy of the criminal justice system. Or put in another way, one of the key motivations for the introduction of victim compensation in South Africa is a concern (sometimes identified primarily as a public ‘perception’) that the current South African constitution effectively upholds the rights of offenders (arrested, accused and convicted persons), but has nothing to say about rights of victims of crime. Victim compensation could, or so the argument goes, be seen as a way of affirming victims' ‘rights’ and offsetting this situation.

A counter argument to this would be that in the South African context, any victim compensation scheme that is introduced is unlikely to be able holistically to redress the negative perceptions of the criminal justice system. It is unlikely that a compensation scheme alone will contribute substantially to building the legitimacy of the criminal justice system or the Constitution. Clearly, compensation alone would not be enough and could easily add to frustrations and disappointments. Equally, though, it would be absurd to think that providing compensation would have no positive impact on victims' perceptions of the State's willingness to take care of their needs.

Improving the effectiveness of the criminal justice process and other crime prevention measures holds out the potential for reducing levels of victimisation. The alternative is that levels of criminality remain high and may rise. Thus the potential demand for compensation would remain at current levels (or increase) and our society would remain with limited capacity to make compensatory payments. This approach would say that what is paramount in our society is the optimum prevention of criminality and thus of victimisation. If this can be achieved, one of the benefits may be that whatever measures are developed to support and empower victims need to be provided to a smaller number of people.

Thus, in relation to compensation, improving the effectiveness of the criminal justice process and other societal mechanisms that contribute to reducing crime holds out the potential that, at some point in the future where levels of victimisation are far lower, a compensation system of greater scope and significance might become more viable.

3.4 Conclusion

There has been a gap between the making of policy and its implementation in South Africa. This has been specifically observed in the victim empowerment arena and in the implementation of the NCPS (G Simpson and J Rauch ‘Reflections on the First Year of the National Crime Prevention Strategy’ in Between Unity and Diversity: Essays in Nation Building in Post Apartheid South Africa edited by G Maharaj Cape Town: David Philip 1999). As such, the idea of setting up compensation schemes in line with international practice will need to be guided by the pragmatics of the exercise, as much as by the principles. In this sense, compensation should be understood as an additional and complementary programme to broader victim empowerment in South Africa.

There will be an inevitable balancing and prioritising between the establishment of a compensation scheme and the funding of additional victim empowerment services. Given competing needs and priorities in the context of limited financial resources, the likelihood of developing a compensation scheme may seem remote in South Africa. However, it would be inappropriate to overlook the possible positive effects that the institution of such a scheme may have. It is, therefore, necessary to reflect on different options for a compensation scheme and consider how these could be implemented, in part, in full, or incrementally. Policy is generally developed incrementally and is a process rather than a specific outcome. In fact, it is usually ‘messy and evolutionary’ (C Juma and N Clark ‘Policy Research In Sub-Saharan Africa: An Exploration’ (1995) Public Administration and Development ,Vol. 15, 121-137). ^[37]

The particular difficulty that is faced in the South African context is that there exist multiple priorities and demands on the State. Extreme pressure to deliver can often override the incremental steps that may be needed to develop an extensive compensation scheme. None of the competing demands on the State will disappear in the short-term. It makes sense that the highest priorities within the criminal justice system should be attended to first, but exactly what these are remains a matter of interpretation and debate. What is clear, however, is that the criminal justice system will remain dependent on the co-operation of victims in order to secure its on-going efficacy and legitimacy. On the other hand, the needs of victims are not going to disappear in the short-term, no matter what criminal justice reforms are undertaken. Priorities in respect of reforming the criminal justice system and adequately addressing the status of victims within such a system will, therefore, remain inter-linked and mutually dependent.

Criminal justice reform takes place in an integrated context. The persistence of victims' negative perceptions and experiences of the criminal justice system, as well as the fact that their needs are not met, will undermine the legitimacy of the system and, in so doing, erode strides made in other areas of reform. Paying compensation will not bring back the loved ones of murder victims, but equally, catching and apprehending the criminals will not offset the costs associated with the loss of a breadwinner - without either, trust in the criminal justice system remains undermined. In this context, the idea of compensating victims of crime can easily hold its own next to a range of other needs in the criminal justice arena. At the very least, compensation has to be seen as a complementary component of victim support that is vital to the ensuring the efficacy of the whole criminal justice system.

^[8] Causation is the causing of damage through an act.

^[9] The actio legis Aquiliae allows for damages to be claimed for wrongful and culpable (intentional or negligent) causing of patrimonial damage. The actio iniuriarum is directed at granting satisfaction for a wrongful and intentional injury to personality (see Neethling et al., 1990, p. 5).

^[10] Prescription Act No. 68 of 1969.

^[11] For example, in claims against the owner of an animal for damages caused by such animal.

^[12] Recently, lawyers have been accused of professional misconduct regarding over-charging of accident victims on whose behalf they have claimed from the fund.

^[13] Employees excluded from the ambit of the Act are domestic workers, members of the South African National Defense Force (SANDF) and South African Police Service (SAPS), independent contractors or employees who work outside of South Africa for more than 12 months at a time. Farm workers and casual workers are included.

^[14] Act No. 56 of 1996.

^[15] It also denies the payment of compensation to certain other persons under specified circumstances.

^[16] Act No 107 of 1978

^[17] See Hamber (2000) for a detailed discussion on the TRC’s reparation process, as well as selected articles at ReconciliationNet (http://www.reconciliation.org.za).

^[18] Although not directly relevant to victims of crime (without a political motive) the work of the Truth and Reconciliation Commission is worth briefly mentioning, as it is South Africa's newest process focusing on compensation and some important questions of relevance are raised by the scheme.

^[19] Promotion of National Unity and Reconciliation Act, (Section 40-f).

^[20] See the TRC Final Report, Volume 5, Chapter 5 for the full Reparation and Rehabilitation Policy.

^[21] The grants vary as the TRC has factored in variance related to the number of people living in the ‘victims’ house or whether the survivor or family member of a victim lives in a rural or urban area. This was done because services in rural areas, for example, are more costly than in urban areas. No victim, however, will, if government implements the policy, receive more than R23 023 per annum.

^[22] In 1997 the average annual household income was R21 700. This was used as a benchmark by the TRC in the design of the monetary package. The Final Reparations Policy notes that, ‘The poverty line of R15 600 per annum was rejected as a benchmark, as this would be condemning victims to a life of near poverty, rather than one of minimum dignity’ (TRC final Report, Volume 5, Chapter 5, 69). These amounts are not comparable to what a survivor might have received in a civil claim, which would be substantially greater. A civil claim, however, would not be guaranteed in most cases.

^[23] See ReconcilitionNet at http://www.reconciliation.org.za or updates on reparations process.

^[24] Personal communication, Paulo De Mesquita Neto, Senior Researcher, Centre For The Study of Violence, University of São Paulo, Brazil, 9 September 2000.

^[25] Information from the US Department of Justice (1999). International Crime Victim Compensation Program Directory, 1998-1999 Resource Directory. Washington D.C: US Department of Justice (Office for Victims of Crime Office for Victims of Crime (1996). Report to Congress at http://www.ojp.usdoj.gov/ovc/welcovc/archives/repcong/chpter1.htm accessed August 2000). For more detail in each case, and for greater sensitivity not reflected above (e.g. some schemes will vary slightly between states) see the full directory.