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South African Law Commission |
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‘Compensation’ refers to goods, services or monies transferred from one party to another to offset the losses sustained by the recipient of compensation through the acts or omissions of either the party giving compensation or another party. In general, full compensation seeks to restore recipients to the status quo ante, such that the effects of the wrong done to them is offset by the compensation received. In effect, the act of fully compensating the victim of a wrong seeks to make the effects of the wrong done ‘unhappen’. Partial compensation seeks to undo part of the wrong inflicted, but is insufficient to recompense victims for more than part of the negative impact of the wrong done to them. Compensation is different from restitution. Compensation, for the purposes of this report, relates to the procedures established by the State that aim to compensate victims from a state fund, while 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 (South African Law Commission ‘Empirical Study of Sentencing Practices in South Africa’ (Research Paper) The South African Law Commission & German Technical Co-operation 2000).
Restitution relates to the legal remedies available to the victim to claim restitution (a particular benefit or service to a particular person which is generally money but could include other benefits or services) from the offender by means of a court order, either in a civil suit or a criminal action. A distinction is drawn between compensation and restitution in this report and as defined by the SALC’s terms of reference for the research (see Appendix One).
For the purposes of this report, a Victim Compensation Scheme is a state-provided fund of monies to be paid to some or all victims of some or all crimes, depending on the policy parameters chosen and a range of eligibility criteria.
An offender is a biological person who has committed a criminal offence against a victim, regardless of whether this person has been identified, apprehended, charged, prosecuted or convicted in the criminal justice system. A person can be deemed to be an offender regardless of the familial relationship to the victim.
Restorative justice is a process that seeks to redefine crime, interpreting it not only as breaking the law, or offending against the State, but also as an injury or wrong-doing against another person. It encourages the victim and offender to be directly involved in resolving conflict and, thereby, to become central to the criminal justice process. In such a process the State and legal professionals play the role of facilitators, supporting a criminal justice system which aims at offender accountability and full participation of the victim, the offender and the community in making good or putting right (South African Law Commission, Discussion Paper, Project 82, p.3).
For the purposes of this report, a victim is defined as a biological person who has suffered harm at the hands of another person in the course of a crime of violence. According to the South African government’s Victim Empowerment Programme, a victim is defined as a person who, individually or collectively suffered harm, including physical or mental injury, emotional suffering, economic loss or substantial impairment of their rights, through acts or omissions that are violations of national criminal laws or of internationally recognised norms relating to human rights. For the purposes of this report, harm or suffering, which can be physical or psychological or both, must have resulted in a material loss to the victim and/or had a negative, quantifiable impact on her or his current and/or future capacity to earn an income.
Furthermore, a person may be considered a victim regardless of whether the offender has been identified, apprehended, charged, prosecuted or convicted. People can be deemed to be victims regardless of the familial relationship between the offender and themselves, and the category can include people who were injured whilst intervening or assisting other victims, or the police during activities aimed at law enforcement.
For the purposes of this report, violent crime is defined as an intentional crime involving an act of violence committed by one or more persons against an individual, with or without a weapon. Such a crime could be associated with inter-personal violence between strangers or people who know each other, or predatory property crimes committed with the intention of obtaining goods or money. In terms of police recording practices, violent crimes include murder, attempted murder, assault, rape, indecent assault and robbery.
This term refers to people who have sustained an injury (for the purposes of this report, through a violent crime) through no wrongful, negligent (or intentional) conduct on their part
This term refers to compensation awarded as a result of the wrongful and negligent (or intentional) impairment of the physical or mental integrity of a person, in the past and future.
‘Loss of amenities of life’ refers to compensation awarded for any disability, whether physical or mental, temporary or permanent, which diminishes the victim's enjoyment of life.
Compensation awarded under this heading is granted as a result of the reduction of a person's normal life expectancy because of an injury
Damage is the loss or harm suffered by a person as a result of a delict (see Section 3.2.1.1 of this report) committed against him/her, whereas damages are the restoration of impaired interests through money.
These are the various grounds on which damages for impaired interests can be claimed and which the law seeks to restore through money.
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URL: http://www.saflii.org/za/other/zalc/dp/97/97-Definiti.html