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• Introduction And Structure Of The Report
• 1.1 Overview Of The Mandate Of The Project
• 1.2 Introduction To Key Issues
• 1.3 Structure Of The Report

CHAPTER ONE

Introduction and Structure of the Report

This chapter provides an overview of the mandate of the project and introduces some key issues with regard to compensation for victims of crime. Definitions of words and concepts used in the report are also provided. Finally, the chapter outlines the structure of the document by briefly describing the focus of the nine chapters of the report.

1.1 Overview of the Mandate of the Project

The Republic of South Africa is far behind other countries when it comes to victim support and compensation of victims of crime. The South African Law Commission (SALC), through its project committee on Victim Empowerment, is consequently conducting an investigation into the viability of establishing a State Compensation Fund for victims of crime.

The SALC understands victim compensation broadly in terms of a ‘reward’. A distinction is drawn between compensation and restitution. Compensation and restitution are both components of the umbrella term ‘reward’, which may be defined as providing a particular benefit or service to a particular person in the form of a restitution order or compensation by the State. Compensation should, however, be distinguished from restitution. Compensation relates to the procedures established by the State with the aim of compensating victims from a central State fund, whereas restitution relates to the legal remedies available to the victim to claim restitution from the offender by means of a court order, either in a civil suit or a criminal action.

The SALC’s broad investigation includes a review of the legal position relating to both compensation and restitution with the aim of making recommendations on law reform in this regard. To assist with this process, the SALC put to tender research that would assist in furthering the debate and provide it with various practical options for consideration. The tender was awarded to the Centre for the Study of Violence and Reconciliation (CSVR) in Johannesburg, South Africa.

Specifically, the broad mandate of the study was to make recommendations with regard to the establishment of a compensation scheme that would ensure compensation and restitution for victims of crime. The purpose of the study was, therefore, to assist the SALC in furthering its own internal discussions about the feasibility and nature of a compensation scheme, if one were to be set up in the future. In this regard, the mandate of the research was to assist in enriching the SALC’s discussion through providing information on the key debates, risks and policy issues to consider (based on international comparative analysis) when developing a compensation scheme for victims of crime. The research also provided the SALC with various models of compensation schemes (including estimated resource implications) for the Commission’s consideration.

The principles of restorative justice were considered by all concerned to be an integral part of the research and mandate. The SALC, therefore, also requested that the researchers consider, if a compensation scheme based on monetary compensation appeared not to be viable or sufficient to stand on its own, how restorative justice approaches to victims could be integrated into the research. As such, the researchers were to point to alternative strategies and approaches to complement the models outlined in the research. However, the mandate did not require the researchers to elaborate on these issues in detail, but rather to point out where they would be of relevance and what alternative options may exist. It was agreed that the final report presented here should include an analysis of key policy issues and debates regarding compensation, a number of models for costing the scheme, as well as a set of recommendations for taking the process forward by the Law Commission in the future. See the full terms of reference in Appendix One.

1.2 Introduction to Key Issues

It is generally recognised that crime in South Africa (SA), and especially violent crime, is at exceedingly high levels and that the risk of victimisation of citizens, residents and visitors is inordinately high. This fact, which is confirmed by all available crime statistics and victim surveys (see Chapter Two), explains the extent to which crime, as well as the nature and efficacy of the state’s response to it, has become one of the main foci for policy and political debate in SA. It could be argued that, with the possible exception of job creation and the economy, no single issue of governance comes close to the levels of attention and concern associated with the problems of crime, criminality and victimisation.

The extent of public concern about crime has led to numerous proposals, of varying practicability, for improving the safety and security of members of the public. These proposals have ranged from endorsements of violent vigilantism to carefully costed proposals for the implementation of technological solutions to problems of inefficiency in the criminal justice system. They have covered the spectrum of possibilities from calls to reinstate the death penalty to campaigns calling on people not to ‘do’ crime. They have also included such imperatives as increasing the accessibility of the criminal justice system to previously under-serviced communities, to the fencing-off of neighbourhoods.

On the basis of the sheer variety of proposals made for addressing the problems of crime, criminality and victimisation in SA, one could conclude that almost all areas which can or do impact on the nature and level of crime could be improved. Three basic formulae for improving levels of safety and security in SA have been developed. These are:

• ‘Devote more resources to alleviating socio-economic problems and unemployment, and crime will take care of itself’;
• ‘Improve the functioning of the criminal justice system, employ more police officers and prosecutors and get the prisons in shape, and crime will be dealt with directly’; and
• ‘People are victimised because of the failure of the state to properly police society and to create appropriate conditions for improving safety and security. It is these people to whom the state owes its greatest duty of care, and, if their needs are prioritised, the state can reduce revictimisation and can break the cycle of violence. Moreover, dealing with the needs of victims reduces the likelihood of vigilantism emerging.’

In general terms, one might term these approaches to be ‘social crime prevention’, ‘law enforcement’ and ‘victim-centred’. The underlying premises and goals of each approach differ from those of the others, yet there need not be too great a degree of contradiction between the various approaches and they should be complementary. That said, it is apparent that in recent years the victim-centred approach to dealing with the impact of crime on the lives of victims has gained currency and is now part of the cutting edge of policy debates in the field of safety and security.

Victim-centred approaches to the issue of crime comprise a number of components and concerns about which there is a great deal of political, policy and academic debate. These issues include concerns relating to victims in general, such as:

• the accessibility of the police and courts;
• the nature and quality of services provided at and by those institutions;
• an under-emphasis on concerns relating to the plight of specific classes of victims, such as the specific needs of rape and child abuse survivors as well as those of victims of domestic violence.

Particular emphasis is beginning to be placed on the need to restore victims to a position comparable to that which they occupied prior to their victimisation. This is part of a more general need to empower and support victims and to recognise and address their particular needs. Proposals to restore victims to their prior positions often include reference to the payment of compensation as a way to compensate them for the wrong done to them both materially and symbolically. Such proposals, which are based on similar programmes in other parts of the world, include references to the need to establish a Victim Compensation Scheme (VCS) in SA, through which the state would offer financial compensation to victims or their dependants for the harm done by offenders.

Proposals for the establishment of a VCS are based on the undeniable premise that victims of violent crime and their dependants suffer material and psychological costs as a result of their victimisation. The circumstances under which these costs are incurred are deemed intolerable and it is felt, therefore, that the victim should be compensated in some way for such costs.

Generally, legal systems recognise this and create an unfettered right to receive compensation from the perpetrator of the wrong for the damages associated with the commission of those wrongs. These rights are deeply rooted in the law of SA, and have evolved through legislation and judicial interpretation over time. More recently, however, governments in many countries around the world have adopted policies that extend the right to access compensation for victims of violent crime beyond the civil liability of the wrong-doer. These policies include the creation of mechanisms through which some or all victims of violent crimes can access funds made available through the state, irrespective of whether the wrong-doers are, themselves, ever identified or if they are unable to compensate the victims of the original crime.

These schemes amount, therefore, to a transfer of funds from taxpayers to the victims of crime and are motivated by a philosophy that construes society as having a responsibility to the victim of crime. By providing compensation, it is hoped that further victimisation and hardship experienced by the victim is prevented or limited. These schemes do not create a legal right to compensation from the state, rather they provide mechanisms through which the victim can access funds on the basis of an accepted social responsibility by the state towards the victim.

The fact that there is no legally recognised right to compensation except from the offender means that compensation schemes operate in the context of the political and fiscal vicissitudes of government. Compensation schemes, therefore, frequently differ in their interpretations as to who qualifies for compensation, what exemptions and exclusions apply, and the extent of the compensation provided. These differences make it impossible to speak in more than the most general terms of the practical and legal requirements for the establishment of a VCS in SA. Nonetheless, given the broad political and public support for the idea of establishing a VCS, it has become necessary to develop a framework for thinking through the implications and prerequisites for such a scheme in SA and it is this task that this report seeks to begin to address.

1.3 Structure of the Report

This report is made up of nine chapters. These are:

• Chapter One: A broad introduction to the report and the issue of compensation for victims of crime.
• Chapter Two: An overview of the violent crime situation in South Africa, which is considered essential to help provide the data for costing and assessing any compensation model.
• Chapter Three: An overview of the debates concerning compensation. This Chapter analyses the motivations for and against establishing a compensation scheme for victims of crime, drawing heavily on international comparisons and experience.
• Chapter Four: An outline of the parameters usually applied in victim compensation schemes, which will need to be considered if a VCS were to be established in South Africa. This Chapter highlights the eligibility and ineligibility criteria that would need to be considered for any compensation scheme. These are based on various international approaches and best practice.
• Chapter Five: The results of two case studies of selected police dockets. The purpose of these docket analyses was to provide detailed information about certain types of violent crimes, and to assess the usefulness of police information in adjudicating possible claims for victim compensation.

• Chapter Six: Postulates various models and costings associated with establishing a compensation scheme in South Africa. A number of models ranging from full compensation, through to more minimal or targeted schemes are discussed and costed.

• Chapter Seven: Outlines the type of administrative structures that could be used to run and manage a victim compensation scheme.

• Chapter Eight: Provides various options for funding a compensation scheme and the financing systems that may be involved if a compensation scheme were to be established.

• Chapter Nine: Provides a list of recommendations emanating from the research.

An appendix made up of several components, and a reference list is attached.