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• Possible Solutions
• (A) Victim Empowerment And Community Participation
• Background
• Co-Ordinated Victim Support Services
• The Need For Legislation To Co-Ordinate Victim Support Services In South Africa
• The Victim Impact Statement
• Victim-Offender Mediation
• (B) A Compensation Scheme For South Africa: Proposals For Comment
• Introduction
• The Necessity For A Compensation Scheme
• The Establishment Of A Compensation Scheme

CHAPTER 4

POSSIBLE SOLUTIONS

(A) VICTIM EMPOWERMENT AND COMMUNITY PARTICIPATION

Background

4.1 Like the rest of the world the United Nations was also far more concerned with the rights of offenders than the rights of victims. The first United Nations Congress on the Prevention of Crime and the Treatment of Offenders dealt mainly with offenders' and prisoners' rights. Only at the Seventh Congress in Milan in 1985 did victims of crime appear on the agenda. The Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power contains the following statement in respect of victims of crime:^[20]

Access to justice and fair treatment

4. Victims should be treated with compassion and respect for their dignity. They are entitled to access to the mechanisms of justice and to prompt redress, as provided for by national legislation, for the harm that they have suffered.

5. Judicial and administrative mechanisms should be established and strengthened where necessary to enable victims to obtain redress through formal or informal procedures that are expeditious, fair, inexpensive and accessible. Victims should be informed of their rights in seeking redress through such mechanisms.

6. The responsiveness of judicial and administrative processes to the needs of victims should be facilitated by:

(a) Informing victims of their role and the scope, timing and progress of the proceedings and of the disposition of their cases, especially where serious crimes are involved and where they have required such information;

(b) allowing the views and concerns of victims to be presented and considered at appropriate stages of the proceedings where their personal interests are affected, without prejudice to the accused and consistent with the relevant national criminal justice system;

(c) providing proper assistance to victims throughout the legal process;

(d) taking measures to minimize inconvenience to victims, protect their privacy, when necessary, and ensure their safety, as well as that of their families and witnesses on their behalf, from intimidation and retaliation;

(e) avoiding unnecessary delay in the disposition of cases and the execution of orders or decrees granting awards to victims.

7. Informal mechanisms for the resolution of disputes, including mediation, arbitration and customary justice or indigenous practices, should be utilized where appropriate to facilitate conciliation and redress for victims.

Restitution

8. Offenders or third parties responsible for their behaviour should, where appropriate, make fair restitution to victims, their families or dependants. Such restitution should include the return of property or payment for the harm or loss suffered, reimbursement of expenses incurred as a result of the victimization, the provision of services and the restoration of rights.

9. Governments should review their practices, regulations and laws to consider restitution as an available sentencing option in criminal cases, in addition to other criminal sanctions.

Compensation

12. When compensation is not fully available from the offender or other sources, States should endeavour to provide financial compensation to:

(a) Victims who have sustained significant bodily injury or impairment of physical or mental health as a result of serious crimes;

(b) the family, in particular dependants of persons who have died or become physically or mentally incapacitated as a result of such victimization.

13. The establishing, strengthening and expansion of national funds or compensation to victims should be encouraged. Where appropriate, other funds may also be established for this purpose, including in those cases where the State of which the victim is a national is not in a position to compensate the victim for the harm.

Assistance

14. Victims should receive the necessary material, medical, psychological and social assistance through government, voluntary, community-based and indigenous means.

15. Victims should be informed of the availability of health and social services and other relevant assistance and be readily afforded access to them.

16. Police, justice, health, social service and other personnel concerned should receive training to sensitize them to the needs of victims and guidelines to ensure proper and prompt aid.

17. In providing services and assistance to victims, attention should be given to those who have special needs because of the nature of the harm inflicted or because of factors such as those mentioned in paragraph 3 above."

Co-ordinated victim support services

4.2 Present support services for victims of crime and violence in South Africa seem to be limited, fragmented, unco-ordinated, reactive in nature, and therefor ineffective. The planning and establishment of these services are often not community-driven and happen on an ad hocbasis which results in difficulties. Services do not cater sufficiently for the diversity of the population and certain services are over-utilized for example services that focus on women and children, while others tend to be inaccessible as regards their location and service fees or are poorly marketed and therefor not used. Furthermore, there is also a lack of long term planning and unawareness of the plight of victims and what services are available. Many victims go unsupported, remain traumatised, become victims again or even turn to crime and violence themselves.

4.3 The existing "prisoner's friend" system in South Africa is insufficient and even the name of the service does not serve the interests of victims. When, for example, the Attorney-General decides not to institute a prosecution for technical reasons or because of a lack of evidence, the victim should be informed. In particular where the offender is acquitted the victim should be informed of the acquittal and of the reasons therefor.

4.4 Where the offender has been convicted and sentenced the victim should be informed about the nature of the sentence and as to what it entails. Where the offender is sentenced to imprisonment the victim should be referred to a person employed by the Department of Correctional Services who should be required to inform the victim about the date of release. Where the offender is considered for early release due to amnesty or good behaviour the circumstances should be explained to the victim in order to ensure that the punishment is not regarded as a mere symbolic act.

4.5 The advantage of consultation between the prosecutor and victim lies in the improvement of the community's confidence in the justice system as a result thereof. The increase in the workload of prosecutors arising from the consultation process should be balanced with the value it will have for victims of crime.

The need for legislation to co-ordinate victim support services in South Africa

4.6 Although a victim support movement is at present gaining momentum in South Africa it will take years before the needs of victims will be addressed satisfactorily unless a permanent Council or Body is established by legislation to co-ordinate the establishment of services needed. Comments are invited on the following proposals:

(a) A Victim's Advisory Council or an office for a Victims of Crime Co-ordinator should be established through legislation to address the plight of victims.

(b) The Council should comprise representatives from government agencies such as the Departments of Justice, Health, Welfare, Police Services and community based representatives from NGOs and CBOs.

(c) Legislation should provide for a number of principles which should govern the treatment of victims. The following principles are proposed:

• victims should be dealt with at all times in a sympathetic, constructive and reassuring manner and with due regard to his or her personal situation, rights and dignity;
• victims should be informed at reasonable intervals of the progress of police investigations concerning the offence, except where such disclosure might jeopardise the investigation;
• victims should be informed of the charges laid against the accused;
• victims should be informed of any decision concerning the accused to accept a plea of guilty to a lesser charge or a guilty plea in return for a recommendation on sentencing;
• victims should be informed of any decision not to proceed with a charge against the accused;
• where any property of a victim is held by the crown for purposes of investigation or evidence, inconvenience to the victim should be minimised and the property returned promptly;
• a victim should be informed about the trial process and of the rights and responsibilities of witnesses;
• a victim should be protected from unnecessary contact with the accused and defence during the course of the trial;
• a victim's residential address should be withheld unless the court directs otherwise;
• a victim should be given an explanation of the outcome of criminal proceedings and of any sentence and its implications; and
• a victim who is known to have expressed concern about the need for protection from an offender should be informed of the offender's impending release from custody.

(d) Legislation should spell out the functions of the Victims Advisory Council, for example:

• to promote the principles outlined above;
• to encourage the provision of efficient and effective services for victims;
• to promote reforms to meet the needs of victims;
• to develop educational and other programs to promote awareness of the needs of victims;
• to disseminate information concerning the operation of the Act and the functions of the Council;
• to ensure, as far as practicable, that victims receive the information and assistance they need in connection with their involvement in the administration of justice;
• to advise the Minister on matters relating to victims; and
• any other function assigned to the Council.

(e)The following proposals in respect of consultation between victims, the police and prosecutors are submitted for comment:

• Guidelines should be issued to the police and prosecutors on the treatment of victims of crime in the criminal justice process.
• Guidelines should be developed by the Victim Advisory Council.
• If necessary, legislation should be adopted to enforce these guidelines.

The victim impact statement

4.7 At present victim impact statements are not formally recognised in South Africa. The following proposals are submitted for comment:

• Victim impact statements ought to be generally admissible at sentencing hearing. The purpose of such statements should be to provide a measure of the seriousness of the offence and it should be spelled out in legislation.
• Victim impact statements should only be admissible in respect of cases where they furnish the court with particulars that are not already before the court in evidence or in a pre-sentence report.
• For the purpose of such a statement "victim" should be defined as the person against whom the offence was committed or who was a witness to the act of actual or threatened violence and who suffers injury as a result of the offence.
• Victims should have the option to tender a statement and the right to request the prosecutor to refrain from presenting the court with details of injury.
• Victim impact statements should be signed, or otherwise acknowledged as accurate by victims before they are received by the sentencing court.
• Such statements in sworn form ought to be tendered by the prosecution at the sentencing process.
• The statements ought to address the actual physical psychological, social and financial consequences of the offence on the victim and not the question of an appropriate sentence which ought to be imposed.
• The court should have the discretion to disallow a statement and the author should always be subject to cross-examination on the contents of the statement.

Victim-offender mediation

4.8 Schemes involving mediation between victims and offenders ensure wider victim participation in the justice system by allowing victims to take part in the resolution of the case. Mediation may be organised without face to face contact between the parties and one of its main aims is to address the concerns of the victim. The following proposals are submitted for comment:

• Referral by the court to a mediation process should be considered when the victim and the offender wish to come to an agreement about the offender's future contact with the victim or where the parties desire some form of compensation or reconciliation.

(i) Family group conferences

° Family group conferences involving the offender, the victim, the supporters of each of them and an independent mediator should be considered where appropriate.

(ii) Community Youth Conferences

° Legislation should provide for Community Youth Conferences to deal with sentencing of young offenders. Matters may be referred to the CYC by the police or the Children's Court and victims may be allowed to participate in the process and outcomes can involve apology, reparation to the victim or to the community in the form of community work.

(iii) Community Aid Panels

° Community Aid Panels should be considered in appropriate cases, in particular where the community has an interest in the outcome of the case and where the panel may be required to recommend a course of action which will involve voluntary community work, skills training or counselling.

(iv) Circle sentencing

° Circle sentencing may be considered in order to involve persons affected by the crime as well as those who can contribute to resolving the issues involved, eg relatives, neighbours and friends.

(B) A COMPENSATION SCHEME FOR SOUTH AFRICA: PROPOSALS FOR COMMENT

Introduction

4.9 In what follows the Commission raises some of the issues which should be dealt with when considering the introduction of a compensation scheme for South Africa. In the course thereof certain proposals are made and the purpose thereof is to elicit comments, suggestions and proposals for reform of this aspect of the law. The Commission would welcome any suggestions and proposals for law reform on this matter and the provisional proposals submitted for comment are discussed below under the different headings.

The necessity for a compensation scheme

4.10 South Africa is far behind the rest of the world in respect of victim support in general and victim compensation in particular. From the information available to the Commission it appears that the introduction of a central compensation scheme for victims of crime in South Africa has become a matter of urgency. The right of a victim to recover damages by way of a civil action is of little comfort to a victim having regard to the financial position of most criminals, their ability to compensate victims and the unprecedented crime wave that is sweeping our country. In order to address this problem, there appears to be a need to introduce a compensation scheme which will restore confidence in the administration of justice through a just and fair functioning. In order to achieve this, consideration should be given to a number of factors. The introduction of a compensation scheme will, however, place a heavy financial burden on the State and the first question that needs to be addressed is whether such a scheme should be established and whether or not alternative procedures should be considered to achieve the same results.

4.11 The Commission invites any suggestions, proposals and comments on the necessity for the introduction of a compensation scheme for victims of crime in South Africa. The Commission would also appreciate comments on alternative methods to redress the plight of victims of crime. One possibility is to amend the Criminal Procedure Act to compel the courts to consider the compensation of victims of crime by providing for an compensation order as a condition to the suspension of sentence, wholly or partially.

The establishment of a compensation scheme

4.12 If a compensation scheme is to be introduced in South Africa a number of factors should be considered. The Commission therefore also invites comments on specific aspects related to a compensation scheme which are outlined below.

(i) Rationale for the introduction of a compensation scheme

4.13 The rationale for the introduction of a compensation fund in South Africa should be that the State has a moral duty to compensate victims. Victims should have a right to compensation and it should be awarded out of sympathy, goodwill and for humanitarian reasons.

(ii) The administration of the scheme

4.14 The compensation scheme should be known as the "Criminal Injuries Compensation Scheme" and its administration entrusted to an independent and newly created Board known as the "Criminal Injuries Compensation Board".

4.15 The members of the Board should be appointed by the Minister of Justice. The Chairperson should be a judge or a person with a legal background while the other members should represent the following occupations:

law;

medical science;

penology; and

police services.

5.16 The enabling statute should provide for the Minister of Justice in co-operation with the Minister of Finance to regulate the details of the management of the Fund, the procedure relating to grants from the Fund, the form in which applications should be made, the manner in which the accounts of the Fund should be kept and any other matter which is considered necessary or expedient to prescribe in relation to control of the Fund.

(iii) The sources of the compensation fund

4.17 The compensation scheme should be funded from the following sources:

• Twenty percent (20%) of all fines imposed by courts should be paid into the fund. Exceptions should be provided for, for example fines paid to local authorities;
• a surcharge of R50 for every conviction in court should be paid by the accused;
• money confiscated in terms of the Act on the Proceeds of Crime;
• an amount to be determined annually in the budget known as a "Grant in Aid".

(iv) The definition of victim

4.18 For purposes of payment to victims, victims should be defined as:

• any person who directly suffered injuries as a result of the commission of a violent crime (including survivors of sexual assault);
• the dependants of a direct victim who suffered loss or damage as a result of the death of the victim; and
• persons generally referred to as good Samaritans who assisted in the arrest of the offender, assisted the law enforcement officials in the performance of their duties and who assisted in restoring law and order or peace.

(v) The nature and extent of the scheme

4.19 Compensation should be awarded to:

• Any "victim" of so-called violent crimes including offences where the violence may be defined as indirect such as arson, poisoning or intimidation;
• victims of offences such as drug trafficking, sexual exploitation of children (child prostitution, child trafficking etc);
• the dependants of victims contemplated above;
• any person injured in an attempt to prevent the commission of a crime or when assisting a law enforcement officer;
• any South African citizen, visitor to the country or guest labourer within the country who is a victim of the crimes contemplated above;
• victims of human rights violations should at this stage not be included since they are to be dealt with in terms of the Promotion of National Unity and Reconciliation Act.

4.20 In order to qualify for compensation victims should be required to:

• Report the crime to the police within a reasonable time;
• apply for compensation within a year of the report to the police;
• assist the police in its investigation;
• be prepared to disclose his or her role in the commission of the offence.

4.21 A tariff in terms of which the amount of the reward is fixed should not be considered with the introduction of the scheme.

(vi) The status of the applicant

4.22 Should compensation be considered where -

• the victim and the offender are members of the same household; and
• the offence is committed against a victim while he/she is serving a term of imprisonment?

4.23 Injuries justifying an application for compensation must relate to actual bodily harm, which may include emotional or physical harm and even pregnancy caused by or arising from a recognised offence.

(vii) Minimum and maximum compensation awards

4.24 Most jurisdictions include a mechanism in terms of which a minimum award is allowed as well as a ceiling for maximum awards. When considering the reasons for minimum and maximum awards it appears to be easier to determine the minimum amount than to determine the maximum amount. With reference to the minimum amount it denies a number of persons or victims the opportunity to apply for compensation. In most jurisdictions this has little effect since most claims are for pain and suffering.

4.25 The effect of a maximum award for compensation is, however, problematic. It would be difficult to make proposals without consultation. It would also depend on the approach and policy adopted by the Board. In this regard the Board would be confronted with important questions namely, should damages be awarded as in the case of actions brought under the common law and if the maximum award is exceeded should it be reduced to the prescribed maximum? Furthermore, the question arises as to whether the Board should award damages based on the seriousness of the injuries in proportion to the maximum amount allowed by law. It is suggested that in order to make the fund viable and to get the fund off the ground, a maximum amount of, for example, R30 000 should be determined.

4.26 A minimum amount which would justify a claim should be fixed by law (for example R200).

4.27 In order to make the scheme viable and cost effective a maximum award for compensation (for example R30 000) should be fixed by law.

(viii) General guidelines

4.28 The following proposals are submitted for comment:

• The State should be allowed to institute a civil action against the offender only after the victim has elected not to institute a claim.
• Payment for compensation should be allowed either in a single amount or in instalments.
• Restitution for monetary loss should include loss of income, loss of maintenance to a dependant of the victim and funeral costs.
• Claims for loss of property should not be allowed under the scheme although exceptions may be considered. (In cases of the so-called good Samaritan.)
• Claims for compensation for pain and suffering should be allowed.
• Claims for compensation should be considered in accordance with the principles of the common law as applied in civil actions.

^[20] United Nations 1992 Compendium of United Nations standards and norms in crime prevention and criminal justice. United Nations: New York 1992 211 ff.