Justice in whose interests?A proposal for institutionalized mediation in the criminal justice system

• Jurisdiction: South Africa
• Author: R Palmer
• Citation: (1997) 10 SACJ 33
• Date: 28 August 2019
• Published date: 28 August 2019
• Pages: 33-45

Justice in whose interests?

A proposal for institutionalized

mediation in the criminal justice system

R PALMER*

1

Introduction

The overall aim of a country's criminal justice system should be, quite simply,

to ensure that justice is done.

1

In South Africa, the principal method of attempting to achieve this 'justice' is

by means of the adversarial criminal trial, a rigid system inherited from

England in which legal practitioners, whether acting for the state or defence,

play dominant roles.

Marsha11

2

points out that the state has to ensure that a country's criminal

justice system is procedurally acceptable to its citizens in order to maintain the

legitimacy of the system and preserve the confidence of the general public in it.

In order to achieve the dual objectives of legitimacy and confidence, the

State has to ensure that its system of criminal procedure is effective, fair and

accessible to all parties involved in the criminal justice process.

The main role players in the criminal justice system are the offender, the

victim and the state (representing the public in general). In essence, to achieve

`j

ustice' implies the attainment of an equitable balance between the interests of

the offender, the victim, and society in general.

3

During the apartheid era, the legitimacy of the criminal justice system was

undermined by the abuse of the criminal laws and courts as instruments of

state oppression.

4

In his address to the Legal Forum in November 1995,

5

the

* BA LLB (Witwatersrand) Post Graduate Diploma in Maritime Law (Natal).

Advocate of the

Supreme Court of South Africa, Senior Lecturer in Law, University of Natal, Durban.

1

There has been much juridical and philosophical debate about the aims of criminal justice, with

diverse condusions being reached. See Tony Marshall

Alternatives to Criminal Courts

(1985) 5.

Also, there is no dear statement in the South African common or statutory law, or, for that matter,

the interim Constitution (Act 200 of 1993), on the professed aims of our criminal justice system.

2

Op cit (n 1) 12-15.

3

See Marshall op cit (n 1) 6-12; NC Steytler

The Undefended Accused on Trial: Justice in the

Lower Courts

PhD (UN) (1986) 1-4.

4

The criminal courts became instruments of social control, being used to enforce laws such as the

Group Areas Act, the Internal Security Act, and the various influx control laws.

5

Transformation of the justice system in South Africa' address by Mr AM Omar MP, Minister of

Justice, at the Legal Forum on Access to Justice, Durban, 17 November 1995.

33

(1997) 10 SACJ 33

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