Tapping indigenous knowledge: traditional conflict resolution, restorative justice and the denunciation of crime in South Africa
| Jurisdiction | South Africa |
| Pages | 228-246 |
| Date | 15 August 2019 |
| Citation | 2007 Acta Juridica 228 |
| Author | Ann Skelton |
| Published date | 15 August 2019 |
Tapping indigenous knowledge: traditional
conflict resolution, restorative justice
and the denunciation of crime in
South Africa
ANN SKELTON*
University of Pretoria
I INTRODUCTION
South Africa is viewed as being a country that understands and engages
with restorative justice. Indeed, South Africa’s indigenous knowledge
base of traditional justice practice is an enormous advantage in explaining
restorative justice in South Africa, and a description of the principles of
restorative justice to audiences in South Africa is generally met with a
nodding of heads confirming that the concepts are familiar. Modern
restorative justice and indigenous justice practices share many similarities,
and those are discussed in this article, as well as certain differences.
Despite this positive foundation, restorative justice has not really taken
root in the criminal justice system in South Africa.
One of the reasons for this is that although the early years of
democracy were typified by a search for reconciliation and reconstruc-
tion, the restorative justice endeavour has virtually been derailed by
South Africa’s struggle to deal with serious violent crime. This article
proposes that restorative justice advocacy can overcome this and other
challenges. It is acknowledged that there is a need to denounce crime,
and to ensure public safety, sometimes through incarceration. It is argued
that restorative justice is the ideal mechanism to denounce crime in a
constitutional democracy. It is necessary to counter the mood of popular
punitiveness, but at the same time accept that a certain amount of
‘schizophrenia’ will prevail in a system that aims to promote a law and
order approach and a restorative justice approach simultaneously.
South Africa is poised to develop modern restorative justice processes
within and alongside the criminal justice system. Who will be the
stakeholders developing the new system? The respective roles of the state
and of civil society are examined, and it is concluded that partnerships
will be essential. The state has a crucial role to enable and provide
resources, but civil society should provide direct services to victims as
they are closer to communities. As this journey to a more restorative
* BA LLB LLD (UP);Advocate at the Centre for Child Law University of Pretoria.
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2007 Acta Juridica 228
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system is embarked upon, the risk of rights abuses in restorative justice
processes can be prevented through the development of standards. It is
proposed that such standards should not be overly constraining, and that
they must reach beyond the narrow construct of ‘due process’ rights, to
include a more communitarian approach to rights. To achieve this it is
important that the standards are not imposed from above, but are
developed in consultation with people working with victims, offenders
and communities.
II INDIGENOUS CONFLICT RESOLUTION AND MODERN
RESTORATIVE JUSTICE COMPARED
It is widely acknowledged that modern restorative justice theory and
practice has been enriched through learning from indigenous justice
practices. In fact, Johnstone
1
argues that in order to obtain a comprehen-
sive understanding of restorative justice it is necessary to ‘engage with
accounts of its use in historical societies and in contemporary indigenous
communities’. Such engagement may assist people to overcome the
impediment, which a Western education and socialisation creates, to
grasping an alternative vision of justice. State punishment is the norm,
and people struggle to understand that it is not the only way of doing
justice. In fact, it is only in Westernsociety, in the past few hundred years,
that it has been the standard response to wrongdoing. Restorative justice
advocates use examples of ancient patterns of justice, as well as
indigenous justice practices, in order to assist people to understand that
punishment administered by the state is only a social convention.
2
Restorative justice was the norm in the past in Western society and in
other cultures. In South Africa it is also easier to explain the modern
theory of restorative justice by making comparisons with traditional
justice – a process that the majority of people understand.
3
A willingness to learn from indigenous knowledge systems is based on
a recognition that such systems have something to teach, things which
are unknown or have been forgotten by Western civilisation. It is
fortunate that there are some criminal justice theorists and practitioners
who have chosen not to rely solely on Western ideas, particularly as the
last few decades have demonstrated a dearth of innovation from Western
policy and lawmakers on how to tackle the problems of crime.
4
1
G Johnstone ‘How and in what terms should restorative justice be conceived?’ in H Zehr
and B Toews (eds) Critical Issues in Restorative Justice (2004) 10.
2
H Zehr Changing Lenses: A New Focus on Crime and Justice (1990) 95–126; D van Ness and
K Heetderks Strong Restoring Justice: An Introductionto Restorative Justice (2007) 13–18.
3
A Skelton ‘Restorative justice as a framework for juvenile justice reform’(2002) 42 British
Journal of Criminology 507.
4
A Skelton The Influence of the Theory and Practice of Restorative Justice in South Africa with
Special Reference to Child Justice (2005) (LLD Thesis University of Pretoria).
229TAPPING INDIGENOUS KNOWLEDGE
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