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CHAPTER 1

ORIGIN OF THE INVESTIGATION AND SOME INTRODUCTORY REMARKS

1.1 During 1991 a project committee was established for the South African Law Commission's investigation into sentencing. The purpose of the investigation is to review all aspects related to sentencing on a continuous basis. The project committee on sentencing identified a number of projects for investigation one of which is aimed at improving the plight of victims of crime. One of the aspects identified by the project committee for investigation was community participation and individual interests in the sentencing process. Dr H F Snyman, a former member of the committee, prepared a short paper reflecting some proposals for improvement of our law in respect of community participation and individual interests in sentencing. These proposals include improved involvement of victims in the sentencing process by introducing victim compensation, victim impact statements, victim offender mediation and greater consultation between victims of crime and public prosecutors.

1.2 With regard to the proposal for the establishment of a fund for the compensation of victims of crime in South Africa, the committee recommended attendance of the 8th International Symposium on Victimology as a point of departure to obtain information pertaining to services provided for victims and compensation schemes elsewhere in the world.

1.3 The 8th International Symposium on Victimology was organised and presented by the Australian Association on Victimology and took place from 21 - 26 August 1994 and was attended by Professor CH Cilliers, a former member of the project committee. The World Association of Victimology is affiliated to the United Nations and has the status of an official non-governmental organisation. Compensation and restitution were central themes at the Symposium on Victimology and not only were the theoretical foundation and functioning of compensation systems discussed, but also the practical relevance of such systems. Professor Cilliers prepared a report for the Commission on the issue of compensation for victims of crime the contents of which is included in this Issue Paper.

1.4 The Republic of South Africa is at present undergoing changes and major reforms are being considered. The future development of the country is being re-evaluated not only on the political, social and cultural front, but also in respect of the judicial processes in general. Researchers and other functionaries are constantly struggling to keep the judicial system in touch with developments in the country. However, the high crime rate, the unprecedented prevalence of violence and overcrowded prisons in South Africa pose problems for a meaningful and scientific evaluation.

1.5 A re-evaluation of the past also presents the opportunity to consider afresh the development of those aspects that were kept in abeyance within the boundaries of our country. One of those aspects is the role of the victims of crime in the judicial system. Since the Republic of South Africa is part and parcel of Africa and whereas certain judicial principles of Africa are also bound to be applied in South Africa, it is appropriate to reconsider the victims of crime as the "lost son" of the judicial process from an African perspective. Traditionally African principles are based on reparation and less emphasis is placed on the retributive aspect of crime. The victims of crime are therefore central in those judicial systems. The question arises whether the so-called African principles should also be accommodated in the search for a system which will give due recognition to the victims of crime. The search for restoring the role of victims of crime may also have far reaching consequences for the Government's Reconstruction and Development Programme.

1.6 The purpose of this issue paper is to consider the question of restorative justice which includes a consideration of the involvement of victims of crime in the criminal justice process, reparation to victims of crime and community participation in the criminal justice process and to determine whether there is a need for legislative reform. In recent times there has been interest in a new way of doing justice. The desire has been expressed to return to more tradititonal systems of justice which give greater prominence to the victim, greater emphasis on the issue of redress and community involvement in the fight against crime and healing of the community. When crimes are committed communities feel violated as well and they have needs too. One cannot ignore the public dimension of crime and therefore the justice process cannot be fully private.

1.7 For the purpose of this issue paper it is necessary to have a clear understanding of the meaning of the following terms:

• Victims - Victims are persons who, individually or collectively have suffered harm, including physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights, through acts or omissions that are in violation of criminal laws.^[1]

The term therefor includes direct victims (the person who was directly prejudiced by the commission of the crime) as well as indirect victims (persons who were not directly involved in the crime, but who were directly prejudiced as a result thereof, for example the family of a victim of a murder).

• Sentencing - The process representing a public quantification of the individual offender's blameworthiness, determined according to acceptable standards of proportionality.^[2]
• Community - A collection of individuals who maintain homogeneous interests and customs in a distinctive social structure, in a limited territorial area and who show a strong inclination towards group identification.
• Victimisation - The process whereby a victim, either innocently or through negligence or intentionally, is exposed to the negligent and or intentional unlawful conduct of a criminal which is prohibited by law. It is not limited to conduct which the victim regards as criminal, but it includes the feelings, responses and the community's attitude towards the victim.

^[1] The Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power: United Nations Compendium of United Nations standards and norms in crime prevention and criminal justice United Nations: New York 1992 211 ff.

^[2] Van der Merwe D P Sentencing Johannesburg: Juta 1991.