Victims of crime in international law and constitutional law: Is the state responsible for establishing restitution and state-funded compensation schemes?

• Jurisdiction: South Africa
• Citation: (2010) 23 SACJ 183
• Date: 16 August 2019
• Published date: 16 August 2019
• Pages: 183-211
• Author: JC von Bonde

ARTICLES

Victims of crime in international

law and constitutional law: Is the

state responsible for establishing

restitution and state-funded

compensation schemes?

JC VON BONDE*

ABSTRACT

This article investigates the legitimate expectations of victims of crime re-

garding provision for redress in domestic legal systems and focuses on the

relationship between international law and South African constitutional law.

The extent to which South African law complies with the expectations of

international law in the treatment of victims of crime is considered, as well

as South Africa’s obligations in this regard. While conclusive evidence is not

found that international law places a legally binding obligation on states to

institute state-funded victim compensation schemes and eff‌icient restitution

provisions, it is found that these matters will have to be addressed if South

Africa sees itself as playing an increasingly pivotal role on the international

scene, both generally and in the African context.

1. Introduction

On 20 July 2006 the Democratic Alliance submitted a Private Mem-

ber’s Bill seeking to establish a state-funded compensation scheme

for victims of violent crime.1 The Bill envisages a Fund (managed by

a group of trustees appointed by the Minister of Safety and Security)

f‌inanced from f‌ines, forfeited bail, parliamentary appropriations and

private donations. The victim would qualify for compensation only

if the offender were convicted. Compensation would not be paid to

persons awarded or claiming damages in court.

* BJur LLB (UPE) LLD (NMMU); Lecturer in Law, Faculty of Law, Nelson Mandela Met-

ropolitan University.

1 The Democratic Alliance holds the second largest number of seats in the National

Assembly: Independent Electoral Commission website: July 2006, available at http://

www.elections.org.za/default.asp, accessed on 14 October 2010.

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(2010) 23 SACJ 183

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The Bill is a manifestation of the fact that crime seriously aff‌licts South

Africa in both pecuniary and non-pecuniary terms. Violent crime consti-

tutes one of the greatest sources of productivity loss, overextending the

health care system and ultimately society itself.2 South Africa’s status as

a participant in the international community is jeopardised by its image

of being a society ravaged by crime.3 The perception of victims that their

plight is not being addressed by the state leads to vigilantism, eroding

respect for the state in general and the justice system in particular.4 This

perception is bolstered by the fact that legal aid is disbursed primarily to

defend alleged criminals.5 This article investigates the legitimate expec-

tations of victims of crime regarding provision for redress in the legal

system, and will focus on the relationship between international law and

South African constitutional law, addressing the following questions:

How does international law require countries to treat victims of •

crime?

How does South African constitutional law view victims of crime?•

To what extent does South African law comply with the expectations •

of international law in the treatment of victims of crime?

Should South Africa comply with international law in this respect?•

2. Background

Legal systems employ mainly two mechanisms to afford pecuniary

redress to victims of crime:

Restitution• , which refers to recompense obtained from the perpetra-

tor of a crime; and

Compensation• , which refers to recompense obtained from the state;6

though the term compensation is often used in practice to cover res-

titution as well, the distinction will be observed in this article.

2 South African Law Reform Commission Discussion paper 97 (Project 82) ‘Sentenc-

ing (A compensation scheme for victims of crime in South Africa)’ (actually 31 July

2010) at Chapter 2, available at http://www.justice.gov.za/salrc/dpapers/dp97_prj82_

victims_2001jul.pdf, accessed on 14 October 2010.

3 A Powell ‘Crime crushes investment opportunities’ Cape Times 10 April 2007.

4 The People Against Gangsterism and Drugs (PAGAD) movement is an example: See

generally K Gottschalk ‘Vigilantism v the state: A case study of the rise and fall of

Pagad, 1996-2000’ Occasional Paper 99, (February 2005) Institute for Security Stud-

ies website (May 2007), available at http://www.issafrica.org/uploads/PAPER99.PDF,

accessed on 14 October 2010. (I found this website as the initial website said it could

not be found).

5 HJ van As ‘Legal aid in Mexico: Visions of South Africa’s future?’ (2004) 15 Stellen-

bosch Law Review 137. Legal Aid Board Annual Report 2003/4 20, states that 88% of

all new cases dealt with by justice centres during the relevant period were criminal

cases.

6 South African Law Reform Commission op cit (n2), Def‌initions: ‘Compensation’.

184 SACJ . (2010) 2

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