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I recently read an article by John Ndlovu titled ‘Compensation orders in criminal proceedings’ 2018 (Aug) DR 16. I share the views of the author insofar as compensation orders in criminal proceedings are desirable as a means of repairing the harm caused by the accused’s criminal conduct. Reading the article highlighted two concerns that affect victims of crimes adversely.

Firstly, I am of the opinion the provisions of s 300 of the Criminal Procedure Act 51 of 1977 (the Act) are archaic and not practical, which places an additional burden on victims of crime. Long before the separation of the court into criminal and civil divisions, many of the wrongful acts – now deemed to be crimes – were redressed solely by compensation. Compensation has always been a primary concern for victims who suffer damages. Compensation is widely recognised as ‘one of the only ways that crime victims can hold offenders directly responsible for the harm that they have caused’ (Melissa Hook and Anne Seymour ‘Offender re-entry requires attention to victim safety’ (2001) 5 The Crime Victims Report 33). Too much has been made of the criminal court’s inability to deal with compensation. There are no significant limitations in a criminal court process to preclude most claims for compensation. Criminal court procedures with a few changes can be adapted to process claims for compensation. Chapter 29 of the Act refers to restitution but is silent in so far as the procedure is concerned.

Changes to the scope of victim compensation are needed to assist in the healing journey of victims and to foster their sense of fairness in the justice system. Broadening the scope of restitution provides meaningful alternatives to jail and enhances victim participation in and respect for the justice system. Criminal courts owe victims the duty of making reasonable efforts to ascertain and award restitution for the losses caused by crime. Few victims will understand or accept the proposition that what they cannot get a criminal court to do; they might get a civil court to do. It must remain the victim’s choice. Within reasonable limits, victims should be able to apply to either court. Why force them to take further civil action if all or most of the damages can be ascertained in a criminal court? Pursuing their damages in a civil court is not always easy. Victims must start all over again. They are entirely on their own in bringing the offender to court and in proving their damages.

In many respects, what some of our higher courts assume victims want does not accord with what researchers find that victims want or with this court’s experience of what victims want (see Andrew Sanders Taking Account of Victims in the Criminal Justice System: A Review of the Literature (Edinburgh: The Scottish Central Research Unit 1999)). While some victims want revenge, as expressed in harsh sentences, most victims want their losses covered. The more victims are involved in the system, the more the focus shifts from revenge to compensation, from punishment to rehabilitation (see S v Tabethe 2009 (2) SACR 62 (T)). If criminal courts had access to a more comprehensive means of addressing compensation, directly from offenders and indirectly through a victim compensation fund, for many victims’ compensation could be a more satisfactory part of a sentencing plan than harsh penalties. A comprehensive compensation option, in many respects, serves the interests of victims, offenders, and the community.

Within the following guidelines, victims seeking restitution should not be sent to another court to process their claims:

• Ability to pay: Before imposing a large fine, the courts are bound by statute to assess the offender’s ability to pay. There is no such statutory requirement in imposing a restitution or compensation order. The court in Vaveki v S (WCC) (unreported case no A414/10, 3-12-2010) (Matthee AJ) said it must endeavour to establish whether such a person is in fact in a position to pay such an amount at all and/or within the time frames stipulated. Unlike a fine, a restitution order, if not made part of probation, is only enforceable through civil remedies. Further, it may be paid off much later when an offender can afford to do so. Accordingly, large restitution orders can be ordered, despite the current inability of an offender to pay. There is one important constraint on the amount and timing of a restitution order. If rehabilitation is part of a sentencing plan, the amount and timing of restitution must not significantly undermine an offender’s will and capacity to pursue rehabilitation. However, demonstrating the ability to take responsibility for their behaviour by compensating victims can be an integral part of a rehabilitation plan for many offenders. It is a direct, concrete action that gives meaning to an apology.
• Ascertainable damages: There is good reason to send the parties off to a civil court, if complex legal arguments are required to resolve the cause or amount of damage. There is not always good reason for the criminal courts to abandon the task of ascertaining damages just because damages are not readily ascertainable. This sets far too low a benchmark for what criminal courts can and should do. If victims choose to pursue their damages in a criminal court, the criminal court ought to provide restitution, if the cause and number of damages can be reasonably ascertained. If the damages cannot be reasonably ascertained on the information immediately available, then at least one further hearing dedicated to determining damages should be held.
• Restitution determined at time of sentence: Since the amount of a compensation order must be taken into consideration in assessing the overall severity of the sentence, the amount should be ascertained at the time of sentencing. This may require adjourning a sentencing hearing as the police and state may not have the necessary information. The victim’s interests cannot be ignored because the sentencing hearing moves ahead too quickly. To ensure sentencing takes place in a timely manner, victims must be notified and assisted in gathering the requisite information to substantiate a claim.

My second concern is that the legislature has taken the initiative to broaden the principles of restorative justice as far as restitution is concerned and children with conflict with the law is concerned. Section 74(2) of the Child Justice Act 75 of 2008 reads:

‘A child justice court may consider the imposition of any of the following options as an alternative to the payment of a fine:

(a) Symbolic restitution to a specified person, persons, group of persons or community, charity or welfare organisation or institution;

(b) Payment of compensation to a specified person, persons, group of persons or community, charity or welfare organisation or institution where the child or his or her family is able to afford this’.

I am of the opinion the Act and, more specifically, s 300 of the Act should be amended to provide for restitution as envisaged in s 74 of the Child Justice Act. Parliament and the courts have acknowledged the importance of restorative and community justice initiatives. Reconciliation and healing, both central objectives of community justice, are advanced by restitution. Community justice practices revive the importance of compensation and call for developing new ways to compensate victims for the adverse impacts of crime. If the words of Mocumie J at paras 19 and 20 in S v Mfana (FB) (unreported case no 103/2009, 11-6-2009) (Mocumie and Molemela JJ) are to be anything more than empty words insofar as they direct the acknowledgment of the harm done to victims and the community, the court must seek to consider the broader interests those words are meant to encompass. Courts must focus on the restorative goals of repairing the harms suffered by individual victims and by the community as a whole, promoting a sense of responsibility and an acknowledgment of the harm caused on the part of the offender, and attempting to rehabilitate or heal the offender.

Restitution is a part of the punishment. It is of critical importance to state restitution is not compensation. The purpose of a restitution order is to punish the offender, not to compensate the victim and/or community. A restitution order is a process for imposing a financial penalty as part of a criminal sentence, with provision for that penalty to be paid to the victim and/or the community rather than the state. (I am of the view that promoting of a sense of responsibility in offenders, and acknowledgement of the harm done to victims and the community is one of the objectives of sentence. It is about restoring the damaged caused). The measure of restitution is determined, not by the loss incurred by the victim or community, but rather by reference to the fundamental principle of sentencing. The requisite proportionality can be achieved only by a subjective assessment of the gravity of the offence and the culpability of the offender. For that reason, a restitution order, as an element of a sentence, cannot be the result of an arithmetic calculation. The starting point for determining the quantum of a restitution order is the total sentence (which might comprise one or more of a term of imprisonment, a fine, a term of probation and a restitution order) which would be proportionate to the gravity of the offence and the responsibility of the offender.

The constitutional justification, which forms part of a victim-centred approach permitting restitution orders is that restitution is a part of the punishment. Where punishment is exacted in the form of a restitution order, there should be a corresponding reduction in other forms of punishment, which might be imposed. In some cases, a restitution order will be a significant factor, while in others it will be trivial, depending on the circumstances, but it must be included as a factor in the totality of the punishment imposed. Crime generally affects at least three parties, namely, the victim, the community, and the offender. A restorative justice approach seeks to remedy the adverse effects of crime in a manner that addresses the needs of all parties involved.

Under South Africa’s current legislation, a child in conflict with the law may in terms of s 74(2) of the Child Justice Act be ordered to make payment of compensation to a group of persons, community, charity or welfare organisation as part of restitution. In terms of the Act an adult may not be sentenced as such due to the Act not providing for it (see S v Stanley (SCA) (unreported case 269/96, 27-9-1996) (Olivier JA)).

Breaking the cycle of criminal behaviour that locks many offenders into reoffending and thereby into progressively longer jail sentences requires engaging resources that social agencies can bring to sentencing (treatment, training, housing, literacy, financial and other supports). These resources are often required to extract the full potential of sentencing as a catalyst force for change. While the court is not a social agency, it can provide the opportunity for many social agencies to combine their services with those of the court to forge a plan that serves the interests of offenders, victims, and communities. Government resources are, however, depleted, overcrowded, and not functioning optimally due to various constraints, which include budget and personal constraints. Concerned people in the community are far more knowledgeable about the effect of crimes than those employed by probation or corrections. It is the community that has responded to this need, not governments. These organisations in our communities are battling financially due to poor economy, lack of sponsorship etcetera. Imposing a sentence in accordance with s 74(2) of the Child Justice Act will provide a remedy to the concerns refer to above.

If criminal courts shut out the voices of key participants, we cannot expect to foster either public respect for, or acceptance of the justice system.

Lastly, to generate viable solutions, courts must be open to appreciate and respond to the dynamics and needs in each case. Doing so will require pushing, bending and, at times, breaking longstanding attitudes and notions about sentencing practices, and especially about victim participation. For sentencing to generate pivotal changes in the lives of victims, offenders and the community, courts must be open to question longstanding legal practices. If criminal courts shut out the voices of key participants, we cannot expect to foster either public respect for, or acceptance of the justice system. No institution that ignores voices for change survives. If we exclude victims, if we fail to directly face and respectfully explain the principles and practices that shape our processes, we will not survive as a valuable contributor in responding to the harm crime imposes.

Desmond Francke BIuris (UWC) is a magistrate in Ladysmith.

This article was first published in De Rebus in 2021 (July) DR 22.