Disposal of criminal disputes by informal mediation: A critical analysis

• Jurisdiction: South Africa
• Pages: 162-178
• Published date: 24 May 2019
• Author: Adriaan Anderson
• Date: 24 May 2019

Disposal of criminal disputes

by informal mediation: A critical

analysis

ADRIAAN ANDERSON*

‘Since the time of Plato’s Republic, and perhaps even earlier, philosophers,

lawyers and politicians have discussed the true meaning of justice. We can

have no doubt that when our descendants approach the fourth millennium

the topic will still be under active discussion’.1

ABSTRACT

The traditional re sponse to an offence is that the st ate brings crim inal

charges against t he perpetrator and a cour t imposes punish ment upon

conviction. In recent years there h as been a move away from trial as the

only manner of deal ing with crimi nal conduct through t he introduction of

alternative methods, wh ich are usually based on con sensus. In addition to

restorative justice and diversion from pr osecution, the National Pro secuting

Authority (NPA) uses informa l mediation as a means to n ally dispose

of crimina l cases. Almost a qu arter of all case s nalised in 2 015/16 were

resolved by informal medi ation. This art icle provides a description and

critical analysis of t he notion of informal me diation as applied by the NPA;

followed by a concluding suggestion that more detai led rules and sta ndards

for informal mediation mu st be developed and that the method must b e

widely publicised in order to give it legiti macy.

1 Introduction

The modern notion of a crime essent ially entails a public wrong which

requires ofcial state inter vention in the protection of the public

interest. Once an offender has been found guilt y, he/she is sentenced

by the court who imposes an appropriate punishment.2 T he state, as

custodian of the public interest, is i nterested in the prevention and

denunciation of crime, deterring potenti al offenders from perpetrati ng

crimes and t he rehabilitation of o ffenders. Offenders have t he

constitutionally gua ranteed right of innocence until proven guilt y.3

The victim’s interests arises i n the form of retribution or compensation

* B Iuris, LLB (Potch), LLM (Pr etoria), PhD (Amsterdam); A ssociate Professor, School

of Law, University of Limpopo.

1 TH Bingham T he Business of Judging. Selective Essays an d Speeches (2000) 269.

2 CR Snyman Criminal L aw 6ed (2014) 4.

3 Section 35(3)(h) Constitut ion of the Republic of South A frica, 1996.

162

(2017) 30 SACJ 162

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for the wrongs perpetrated against t heir person or property. To militate

against the potential danger of private vengeance and blood-feuds

from victims or their fam ilies, the state has usur ped the authority

to prosecute crimes since the 13th centur y.4 This resulted in the

classic structures of t he criminal ju stice system, such as a prosecuting

authority, the various tiers of courts presided over by judicial ofcers

and rules regulating procedure and ev idence. The state, represented by

the prosecuting authority, decides whether a particu lar crime should

be prosecuted, and the resolution of crimi nal disputes is essential ly

a one dimensional affair, aimed at balanci ng the conicting interests

of the state and the accused. Victim i nterests only play a part when

overlapping with the st ate’s public interest s.5

The reality, however, is that the courts are inundated with cri minal

matters and it is practically i mpossible to dispose of all crim inal matters

by way of the traditional trial. T he international trend in recent years

has therefore been to grant prosecutors a wider disc retion to dispose

of such matters, by giving them options to dispose of c riminal ca ses by

means other than cri minal trials.6 Examples of such alternative disposal,

or case-ending methods, i nclude diversion programmes,7 out-of- cour t

settlement agreements, deferral of prosec ution,8 penal orders,9 plea-

and-sentence agreements10 and restorative justice programmes.11

4 JMT Labuschag ne ‘Menseregtelike begrensi ng van die staat se diskresie om te ver volg’

(1997) 18 Obiter 1 at 2-3. By the 13th Centur y this was already widely pract iced and

later adopted in the Con stitutio Criminalis Carolina by Charles V in 1532.

5 L Meintjies-Van Der Walt ‘Towards victi ms’ empowerment strategies in the cri minal

justice process’ (1998) 11 SACJ 157 at 163.

6 PJP Tak (ed) Tasks and Powers of the Prose cution Services in the EU Member Sta tes

(2004) 243 and also t he earlier T vander Beken and M Kilchl ing (eds) The Role of the

Public Prosecutor in t he European Criminal Justice Syste ms (2000) 27.

7 A complete volume of the European Jo urnal on Criminal Policy and Research (v ol

14, Issue 2-3 Sept 200 8) has been dedicated to ‘Pro secution and Diversion w ithin

Crimina l Justice Systems i n Europe’.

8 Deferred prosecut ion often results in a defer red prosecution agreement (DPA) where

prosecution is susp ended pending the compliance wit h prescribed conditions whic h

can include condition s such as a nancial p enalty, compensation and pay ment

of costs and to implement me asures to prevent fut ure offending. See P Sprenge r

Deferred Pro secution Agreem ents: The Law an d Practice of Negotiate d Corporate

Criminal Penalties (2015) 12.

9 Originating f rom German cr iminal law, a penal ord er is a method of nal ising a

crimina l matter in that t he prosecutor deter mines the exte nt of the penalty, and

if the offender agre es with it, brings t he matter to an end. Se e SC Thaman ‘T he

penal order: Prose cutorial sentenci ng as a model for cooperative cr iminal ju stice

reform?’ in E Lun a, M Wade and A Bojariczyk (eds) The Prosecutor in Transnation al

Perspective (2012) 224.

10 W de Villiers ‘Plea an d sentence agreements in terms of s ection 105A of the Criminal

Procedure Act. A step for ward?’ (2004) 37 De Jure 244.

11 H Hargovan ‘A balancing act for prose cutors: Restorative justice, cri minal justice and

access to justice’ (2012) 42 SA Crime Q 13.

Disposal of criminal disputes by informal mediation:

A critical analysis 163

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