METHODOLOGICAL ORIENTATION
4.1 Introduction
The starting point for this research began with a comprehensive review of prevailing books, articles, policy documents, conference papers and legislation on restorative justice both globally and in South Africa. It was important to understand the role of restorative justice in achieving empowerment for victims, in a context where various {onns of restorative practices have been used in townships throughout the country.
The realisation that restorative justice has the potentia1 to contribute to a programme of reform in the way society and the criminal justice system handles victims and offenders paved the way for embarking on this study. Furthennore, developments in South Africa and abroad point to greater willingness on the part of the criminal justice system to incorporate restorative justice practices. This study is therefore well placed to explore restorative justice activity both outside and within the formal criminal justice system.
While the current research engages in research from a social science perspective it overlaps closely with research in law. Research into criminal justice policy and its implementation is crucial in addressing issues of knowledge, quality of services, availability of resowces, and education and skills. These factors impact on the services victims of crime receive. Research in the purely legal arena is usually non- empirical document research relying only on secondary data as contained in policies, case reports, legislation, statutes and primary texts. This study represents a combination of approaches where primary and secondary data are collected through various techniques.
Research into criminal justice reform is a hybrid activity that draws on tools and concepts from the social sciences such as criminology and SOCiology, as well as jurisprudence and legal theory. The social sciences are pivotal, since criminal justice reform in the South African context is rooted in politics, history and economics.
Criminal justice is an emergent, interdisciplinary, applied and scientific field which requires for its mature development a full array of qualitative and quantitative approaches, pure and applied social research efforts and theoretically incisive as well as methodologically sound studies and evaluations in order to gain academic respectability to which it aspires and deserves (Hagan, 1982: 10).
It is important to acknowledge that research on restorative justice in South Africa is largely exploratory. A growing body of literature now documents various aspects of the restorative justice discowse in South Africa. Indeed, a recent international review essay with the provocative title, 'Pile it On', highlights the fact that 'no other justice practice has commanded so much scholarly attention in such a short period of
time'. Books, journal articles, conferences, seminars and workshops world-wide. all bear testimony to a real worldwide restorative justice industry (Daly in Aertsen.
Daems and Robert, 2006: xlii).
Empirical research into the practice of restorative conferencing and levels of victim satisfaction has recently gained momentum. It is envisaged that as restorative justice practices develop, more vigorous research activity will address issues of human rights, accountability, victim empowerment, recidivism and standards in restorative justice. Current research is increasingly pointing to the area of monitoring and evaluation, and quality assurance of existing initiatives as a basis for developing good practice.
Restorative justice has come to mean different things to different people. Given the many varied definitions of restorative justice and victim empowerment, the following section is devoted to the definition of key concepts. As this study is exploratory in nature, broad operational definitions have been adopted.
4.2 Definition of key concepts 4.2.1 Restorative justice
This study embraces the defmition of restorative justice in the UN Handbook wherein the evolving nature of the restorative justice paradigm is acknowledged. Restorative justice is viewed as
... a way of responding to criminal behaviour by balancing the needs of the community, the victims and the offenders. It is an evolving concept that has given rise to different interpretations in different countries, one around which there is not always a perfect consensus (UN Handbook, 2006: 13).
In the light of the above, a 'maximalist' definition of restorative justice is adopted in this study. It includes every action that is primarily oriented toward doing justice by repairing the harm that has been caused by the crime. A wide variety of services falls under this 'tent'. including those for victims, whether or not an offender is involved or even known to the system or community (Bazemore and Walgrave. 1999: 48). U1timately however, the input from victims and communities affected by crime in face-to-face, non-adversarial, informal and voluntary meetings with offenders in safe settings, are deemed most appropriate to achieve the ultimate goals of restorative justice.
4.2.2 Restorative approaches to justice
Restorative approaches to justice are complementary to the more formal process and include any number of initiatives that operate within a restorative justice mindset, philosophy or framework. They operate in the interest of both adult and juvenile offenders, within and outside the criminal justice system and include restitution.
victim's rights, rehabilitation, victim-offender reconciliation, community crime prevention, and volunteer based services for offenders and victims. This study focuses on restorative approaches to justice in the context of adult offenders.
4.2.3 Restorative justice processes
Restorative justice processes are those in which offenders, victims andj or others affected by a crime participate, often with the help of a facilitator, in the resolution of matters arising from that crime. Restorative justice processes have emerged as important alternatives to the criminal justice prosecutorial process and as an alternative to the use of imprisonment as a means of holding the offender accountable. Restorative processes refer to those actions engaged in by participants and which inform restorative justice practices.
4.2.4 Restorative justice outcome
A restorative outcome is an agreement reached as a result of a restorative process.
The agreement may include referrals to programmes such as reparation, restitution and community services, a11 aimed at meeting individual and collective needs and responsibilities of the parties and achieving the reintegration of the victim and the offender.
4.2.5 Restorative justice practices
The key restorative practices referred to in this study are victim offender mediation (VOM), victim offender conferences (VOC) and family group conferences (FGq.
While the former involves mediation behYeen victim and offender, normally through a trained mediator (professional or volunteer), victim offender conferences are attended by victims and their supporters, offenders and their supporters, and facilitated by a trained coordinator; aiming to produce a contract which mayor may not include reparation to the victim. The scope is broader than victim-offender mediation and an important element is that the conference may be situated in community processes. The process is usually regarded as a 'fully restorative' application of restorative justice since it involves a wider circle of concerned people including individuals who may be in a position to work with and support the offender.
4.2.6 Diversion
The practice of diversion, whilst most commonly applied in the field of child justice is increasingly being adopted for adult offending. The terms diversion and
restorative justice are not synonymous or interchangeable. Restorative justice process may include diversion but a diversion on its own, with no participation by the victim, is not necessarily restorative in nature. Diversion is defined as the disposal of suitable criminal cases in a matter other than through traditional prosecution.
4.2.7 Victim services
Victim services is a generic term encompassing a broad range of services for victims, which include various formal and informal initiatives that address the needs of victims for access to justice and fair treatment.
4.2.8 Victim empowerment
The study aCknowledges that in South Africa the concept and practice of victim empowerment is theoretically linked to and considered part of the restorative justice paradigm. There is a great deal of blurring where some victim empowerment initiatives in the community might very well involve offenders, their families and community members who may choose not to enter the formal criminal justice system at all. However, for the purposes of this study, victim empowerment refers to a caring and supportive service to victims of crime that is accessible, timeous and thorough, thus contributing to a sense of empowerment. The assistance provided to victims of crime extends beyond emotional and physical needs into improved service delivery by government and community based non-governmental organisations.
4.3 Background to the study
The research process began in 2002 through my participation as a task team member of the South African Qualifications Authority (SAQA) - Standards Generating Body (SCB) for Victim Empowerment As my interest in the area developed, an initial telephone survey was conducted to ascertain current service delivery, training and capacity in victim empowerment in KwaZulu-Natal. It became clear that services for victims were being delivered in a haphazard manner, and that training and capacity building was neglected. Pockets of good practice were not documented or passed on to other organisations. Many organisations developed their own training manuals to train their volunteers, which did not necessarily conform to any set minimum standards.
The many challenges arising from the extremely high rates of victimisation in South Africa necessitated an exploration into services for victims in the community. Initial informal interviews were carried out with members of the Standards Generating Body for victim empowerment Among those who were consulted were Zuzelle Pretorius (Deputy Director of Themba Lesizwe), Venessa Padayachee (National Programme Development Specialist- NICRO National Office), Mike Batley (Restorative Justice Initiative) Fiona Nicolson (Thoyoyando Victim Support Centre- Limpopo) and Allison Wainwright (lkhaya Lethemba-Johannesburg). Tt became clear that although victim empowerment falls within the parameters of restorative justice in practice initiatives are mainly victim focused, and do not necessarily involve related stakeholders.
The need for standards in the field of victim empowerment was realised in 2002 when Themba Lesizwe, the fuen South African Network of Trauma Service Providers (SANI'SEP) submitted an application to SAQA. The Standards Generating Body (SCB) for Victim Empowerment was registered in 2003 with members representing a range of training providers including non governmental organisations (NGOs) and community based organisations (CBO's) as well as representation from academia and government. Since its registration, the 5GB has developed qualifications and unit standards aimed at practitioners and volunteers providing victim services across all regions and communities in South Africa. Its main aims are the accreditation of qualifications and training in understanding issues faced by victims, providing victim support, identifying resources and services available in the community and
ensuring that these services are accessed and utilised appropriately, all of which are crucial areas of service provision.
Initiatives in South Africa are predominantly located within communities. They are mainly non-governmental organisations, set up and run by volunteers under the auspices of recognised professionals, providing victim services and support to victims and perpetrators of crime, violence and torture. Services are provided within a restorative justice framework, and aim to be accessible, integrated (both multi- disciplinary and inter-sectoral) and culturally sensitive, while targeting people who experience difficulty accessing services.
Service providers (State and NGO) are listed and identified as 'victim empowerment organisations·l14. While some government departments. such as the Department of Social Development, are involved in services provision through collaboration with NGOs, government initiatives are directed mainly at legal reform (Services Charter for Victims of Crime, Domestic Violence Act 116 of 1998, Child Justice Bill) and the transformation of the criminal justice system itself. The question of whether or not a particular NGO provided restorative justice services such as VOM is addressed in chapter 5. The interviews revealed that services were mostly victim focused, with an emphasis on 'support' rather than empowerment. 1 was also able to observe the types of services, their capacity to deliver services, training levels of individual service providers, and to what extent restorative approaches had been adopted. It became clear that most victims seeking services were women and children. The' other side of the story' was obtained through an in-depth semi-structured interview with the provincial manager for victim empowerment in Kwa-Zulu Natal.
Research on service provision for victims including the types of services, support (financial and otherwise) from the state, and education, training and capacity building in victim empowerment, is limited. Victim empowerment is an integral outcome of restorative justice which should not be viewed in isolation. Therefore, services too should seek to achieve empowerment and restoration through a single process. This is significant, because among offenders there are as many indications of victimisation and trauma as there are among victims. These blurred boundaries of victimisation and offending are documented in research on pathways to crime, in profiles of those imprisoned and in reports on violence in educational and social welfare institutions.
A valuable research project exploring victim empowerment initiatives in South Africa was conducted by Nel and Kruger (1999). Their exploratory study on service provision included KwaZulu-Natal, where four sites were chosen. These sites are not part of the sample in the present study.
The aim in the present study is to extend Nel and Kruger's study by including a component on restorative justice. The role of restorative justice in victim empowerment and the incorporation of restorative approaches in the courts are areas
114 Department of Social Development National Directory on Services/or Victims 0/ Violence (2003).
that have not been empirically explored. This gap in the research field provided the impetus for this study.
4.4 The research model
Research methods in the social sciences are characterised by two basic philosophical traditions, that is phenomenological and positivist, which find expression in qualitative and quantitative methods. A qualitative approach reflects a historical.
intuitive or observational approach that attempts to seek a deeper understanding of complex situations. It is often exploratory in nature, more holistic and 'emergent', with specific focus, design, measurement instruments, and interpretations developing and posSibly changing along the way. Qualitative researchers operate under the assumption that reality is not easily divided into discrete, measwable variables. Researchers are often described as the research instrument because the bulk of the data collection is dependent on their personal involvement (for example, through interviews and observation) in the setting. Rather than a large sample with the intent of making generalizations, qualitative researchers tend to select a few participants who can best shed light on the phenomenon under investigation. Both verbal data (interviews, comments, documents, field notes) and non-verbal data (photographs) may be collected (Leedy. 200s, %). It therefore denotes the type of inquiry in which the characteristic.! or the properties of the phenomena being examined provide better understanding and explanation. A data collection method is selected that will optimize access to this information, while the analytical instrument is largely the researcher who works with the data in different ways in order to uncover hidden meanings.
The primary data collection method on prosecutors' knowledge and use of restorative justice is the inductive theoretical drive (survey) since the purpose of the study was to describe or discover, find meaning and explore. The quantitative approach, rooted in positivism and used in the natural sciences seeks general and universal truths through objective inquiry, explanations and predictions that are able to generalise to other persons and places. Sometimes referred to as positivistic empiricism. it suggests that the same approach to studying and explaining physical reality can be used in the social sciences (Fitzgerald and Cox, 1994: 13).
As this study aims to identify the statistical prevalence of restorative justice practices utilised by prosecutors, a quantitative paradigm was selected for which took the fonn of a questionnaire. Although positivism has been criticised for its reductionist attitude towards the nature of human and social interaction, it fulfills the important requirement of exploration. The present study incorporated both qualitative and quantitative approaches which can be described as a mixed methodology.
Mixed method design is applied when research strategies are used that are not normally described as either wholly quantitative or qualitative in nature, but in effect combines both approaches. In this instance it refers to the interview schedule (qualitative) and questionnaire (quantitative) comprising closed and open ended.
questions, and unstructured and .senU-structured interviews (qualitative). The adoption of this strategy increases the scope and comprehensiveness of the study by
aiding in the interpretation of data in the core study and providing explanations for unexpected findings or by supporting the results.
The use of both quantitative and qualitative methods in a single study has become widespread in many of the social science disciplines over the past 25 years (Maxwell and Loomis, 2003: 241). The following definition provides a reasonable beginning point for considering mixed method research designs:
A mixed method study involves the collection or ana1ysis of both quantitative and/or qualitative data in a single study in which data is collected concurrently or sequentially, are given a priority, and involve the integration of data at one or more stages in the process of research (Creswell W, Clark V LP, Gubnann M Land Hanson W E, 2003: 212).
The advantage of this approach is that whilst it can answer research questions that the other methodologies cannot, it also provides better inferences and an opportunity for presenting a greater range of divergent views.
A major advantage of mixed method research is that it enables the researcher to simultaneously answer confirmatory and exploratory questions and therefore verify and generate theory in the same study (fed dUe and Tashakkori, 2003: 15).
Mixed methods design can offset the disadvantages of certain methods by themselves through the use of supplemental research strategies to collect data that would not otherwise be obtainable by using only the main method and incorporating these data into the base method.
This study employed both intramethod and intermethod mixing.
Intermethod mixing is accomplished by concurrently or sequentially mixing two or more methods Oohnson and Turner, 2003: 298). Questionnaires formed an important component in sequential intermethod mixing in this study.
Intramethod mixing is neither pwely qualitative nor purely quantitative as is defined as 'the concurrent or sequential use of a single method that includes both qualitative and quantitative components' Oohnson and Turner, 2003: 298). While the unstructured, semi-structured and structured interviews formed the qualitative dimensions of the study, the structured interview contained both open ended and closed ended items. Similarly, the self administered questionnaires also including open-ended and dose ended items.
Integration may be achieved by combining quantitative and qualitative research within a given stage of inquiry. Integration in the structured interviews and the questionnaire occurs within the research questions (both quantitative and qualitative questions are presented), data collection (questionnaires and interviews), data analysis (transforming qualitative themes into quantitative items or scales) or in interpretation (examining the quantitative and qualitative results for convergence/divergence of findings). A concurrent fonn of data collection and triangulation is thereby achieved (Creswell et al, 2003: 221).
4.5 Purpose of the study
Social research is primarily concerned with gathering data that can help us answer questions about various aspects of society thereby enabling social scientists to understand it. These questions may pertain to specific problems or to questions of theoretical interest to a particular social science discipline. Ultimately the traditional use of social science data gathering techniques such as the survey, envision the research method as a means to an end. The method would be used to gather information that would benefit society either through direct application of the findings or through the use of the findings to test theoretical issues in social science or make recommendations there from.
The purpose of exploratory descriptive research is to gain a broad understanding of a situation, phenomenon, community or person in a hitherto unexplored area. In this study the need stems from recent developments in criminal justice reform.
Depending on the data obtained and the conclusions reached, national or provincial bodies may well be encouraged to re-look at previous implementation strategies, try new initiatives or modify old ones in an effort to translate policy into practice (Fit:zgerald and Cox, 1994: 13).
The field of restorative justice in South Africa poses new questions for societies which should be asked and answered when responding to crime. The primary objective of the current study is to explore restorative approaches to justice currently being adopted, with the ultimate goal of informing policy and practice. While the primary objective is to answer the question, 'What's out there generally?' the study also seeks to develop a useful estimate of the nature and extent of restorative justice activity in the criminal justice system, specifically in the lower courts in KwaZulu- Natal.
The study sought to Simultaneously accomplish the following:
Explore the adoption of restorative justice practices in the formal justice system. Data was gathered through interviews and questionnaires.
Explore and confirm restorative justice initiatives in the community, whether offender focused or victim focused.
Explore victim empowerment initiatives as one of the many approaches to justice.
Examine levels of education and training of participants in the victim empowerment sector.
Examine training in restorative justice practices among prosecutors.
Make recommendations in respect of policy and law reform, provide guidelines, direct skills development and develop practice guidelines and standards so that initiatives can be sustained over time.
Process or formative research is concerned with how a programme is being implemented and/or whether a policy change is in fact being reflected in practice. It often relies on qualitative research techniques to coUect information so that the information can be provided to programme personnel in order that their programme or implementation strategy may be modified. The present study can therefore be described as formative.