List of Tables
Chapter 1: Introduction to the Study
1.1 Why This Study?
There is a paucity of research on the role played by community-based paralegal work in advancing access to justice for the rural poor in KwaZulu-Natal (KZN). While community-based paralegals (CBPs) have vast experience of how rural people perceive the law, its value and how to respond to it, little is known about the work of CBPs. Fernandez, Hoctor and Lund’s (2009: 47) evaluation of the work of CBPs reveals that “community-based paralegals in their day-to-day interactions with members of the community incorporate both restorative justice and victim care theories”. There is therefore a need to bring CBPs’ experiences into the open through knowledge production and dissemination.
According to Robb-Jackson (2012:1), despite the growth of community-based paralegal programmes in Africa and other parts of the world, “they have received scant attention within the literature and insufficient research exists on the linkages between these programs and women’s access to justice”. In much the same vein, Moult (2005:19) notes that “little attention has been paid to the issue of gender based violence in relation to informal justice mechanisms in South Africa”.
Franco, Soliman, and Cisnero, (2014:29) observe that, despite the long history of paralegal services
“there has been little effort to measure the impact of such services on access to justice”. Empirical research is needed to enquire into the actual role of CBPs and measure the impact of the services they render for people who are unable to access justice. Similarly, Dugard and Drage (2013:1) state that,
“considering the prevalence and importance of paralegals in the South African justice sector, their role remains largely under-formalized and understudied”.
This study seeks to contribute knowledge to help fill this gap through a critical appraisal of the interactive nexus between the role of CBPs and access to justice through community restorative justice in cases of domestic violence in the rural areas of KZN. As a socio-legal study, it aims to determine how rural women experience the application of the South African Domestic Violence Act (DVA) (116 of 1998) (RSA, 1970) as well as other means of accessing justice. The locus and focus of the study is the functioning of CBPs that work in community-based advice offices (CAOs) under the supervision of the Centre for Community Justice and Development (CCJD), a non-governmental organisation (NGO) based in the South African province of KZN. In problematizing and discussing these issues, a number of concepts and definitions will receive attention, including community restorative justice, CBPs and domestic violence.
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1.2 The South African Context: A History of Community Advice Offices and Community- based Paralegals in South Africa
According to Pigou (2000:1), the first organisation to provide paralegal services in South Africa was the Legal Aid Bureau that was established in 1937. Berggren (2000:6) contends that paralegal practitioners and legal advice offices started practicing in response to repression and resistance during the apartheid era. Dugard and Drage’s (2013:4) study revealed that CAOs and CBPs emerged from the 1960s to 1980s, when black people suffered hardship as a result of apartheid and economic exploitation.
Apartheid created political and legal problems such as influx control, low wages, and a lack of housing, as well as racial discrimination in education and job opportunities. There were few lawyers or welfare services that oppressed people could turn to for legal help and advice, which thwarted access to justice.
Community Advice Offices were established with the assistance of local community activists in response to the unjust laws enacted by the apartheid government. According to Dugard and Drage (2013:5), CAOs were formed “out of the need for a space in which to mobilize against the apartheid regime and distrust of a judicial system that endorsed the legal structures that facilitated black subordination”. The Black Sash, established in 1955, was one of the anti-apartheid organizations that set up advice offices “in urban areas to assist black people who contravened apartheid laws, in particular those that restricted freedom of movement” (Dugard and Drage, 2013:5).
The 1970s saw the emergence of the progressive trade union movement and the growth of labour advice offices. The 1980s were marked by the emergence of democratic political organizations such as the United Democratic Front (UDF). Issues such as forced removals, evictions, detentions, political trials and harassment led to the growth of a wide range of services aimed at “responding to the needs of black people and their oppressed communities”. Examples of such services include advice offices, crisis centres, detainee support committees and legal resources centres (Dugard and Drage, 2013:6).
Community Advice Offices were, and still are, based in and run by the community with the aim of providing advice and support on legal and social welfare problems. People who rendered these services were sometimes employed, while others volunteered as part of their commitment to the struggle. They gave advice on a range of practical and political issues that required knowledge of the law and legal processes. With little formal training, CBPs who operate and manage CAOs offered valuable advice and personal support, based on their rich experience and understanding of the conditions and problems faced by their community. It is from this pool of community workers and volunteers that the activities of CBPs evolved. These are individuals who are invariably from the area which they serve, that assist their community by helping to solve socio-legal problems through advice, referrals and education on human and legal rights. Dugard and Drage (2013:6) note, that, in addition to crisis intervention, during the 1980s, CAOs also focused “on the end-goal of ending the apartheid system”.
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Dugard and Drage (2013:7) add that the 1990s were a transition period for South Africa and a period of transformation for CAOs. This “was a time of unrest, intense political violence and political brutality. In 1989 the Centre for Criminal Justice (CCJ) was established as part of the Faculty of Law at the former University of Natal”. The CCJ conducted research on the role of criminal justice in response to political violence in KZN (Kubayi, 2011:253). In the run-up to the end of apartheid, much of South Africa, including the greater Pietermaritzburg region where the CCJ had its offices, was wracked by black-on- black violence, leading to the death of more than 20 000 people countrywide. This period also witnessed a “new wave of civil society organisations, including paralegal organisations, which were set up to support the transition process”. The CCJ began working with paralegals through its community outreach programme and shifted its focus to promoting change at grassroots level. It established 15 community- based advice offices between 1997 and 2000. The CCJ programme is collaborative in nature and networks with the police, magistrates’ courts, and traditional courts (Dugard and Drage, 2013:10).
However, in 2012 the 15 community-based advice offices obtained independent status as non-profit community-based organisations. They are now supported by the Centre for Community Justice and Development (CCJD), an independent NGO in Pietermaritzburg that replaced the CCJ. The advice offices’ networks currently include other professional groups such as social workers, and health care workers. Fernandez, et al (2009:42) explain that the need to maintain excellent working relationships appears to be a major component of CAO operational policy. Community-based paralegals function on the premise that for their work to be successful, they have to cooperate with other service providers and involve members of the community.
The Constitution of the Republic of South Africa, Act 108 of 1996 (RSA, 1996) and Chapter Nine Institutions - state institutions that support constitutional democracy - were established to uphold human rights. According to Fernandez et al (2009:43), CAOs give direct effect to the tenets of the Constitution.
Dugard and Drage (2013:6) note that after 1994, it was still difficult for many people to access their rights and CAOs “continue to play a role in interpreting and implementing the Bill of Rights” in practical and understandable terms given the new dispensation, questions arose as to what would work under democratic governance, especially in terms of the protection and exercise of the rights of previously marginalized communities in remote rural areas. What shape and form will advocacy for and the participation of these communities take? In examining the observance and exercise of rights, particularly for women that have been slow in materialising, this study adopts the philosophical worldviews of pragmatism and advocacy/participation (Creswell, 2009:10). The worldview of pragmatism uncovers what is occurring and what works under current circumstances in terms of the procedures and processes followed by CBPs. On the other hand, the advocacy/participatory worldview enables the voices of CBPs and the citizens who use their services and experience implementation of the DVA to be heard. These worldviews also allowed the researcher and the study participants to co-create
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findings that shed new light on whether and how CBPs facilitate access to justice through community restorative justice when it comes to domestic violence.
1.3 How will New Knowledge from this Study help South Africa and Other Countries?
Paralegals are not recognised by statute in South Africa; nor does the law regulate their activities. Yet they have been providing legal services to historically marginalised citizens and the rural areas of South Africa for decades (Dugard and Drage, 2013:16 and Pigou, 2000:8). To better understand the role of paralegals, this study highlights the experiences of CBPs in community restorative justice for victims of domestic violence. A comprehensive description is provided of access to justice, the South African DVA, the community restorative justice approach and the work of CBPs in handling domestic violence cases. The question arises as to whether and how the work of paralegals meets the needs of rural women faced with domestic violence as well as the extent to which CBPs’ work is valued. The study focuses on the duties and role of CBPs operating in the formal, traditional and informal justice fields.
New knowledge about how the administration of justice and access to justice in rural areas can be improved if the formal, traditional and informal justice systems become more complementary will indicate how access to justice in rural areas and indigenous communities can be expanded by employing citizens to serve the community in which they live in a culturally competent way. Maru (2006b:470) argues that CBPs engage both “formal and customary law in a way that formal legal aid cannot”. There is no reason why both lawyer-focused legal aid and paralegal services cannot complement the formal justice system to provide for more effective and meaningful administration of justice for all. Phoya (2007:32) argues that without the informal justice administered by paralegals and the traditional justice systems, the formal justice system “would simply be swamped with petty cases that are easily resolved at a grass root level”.
This study aims to identify policy reforms that will result in the recognition of CBPs as a sector in the South African Legal Practice Bill No 20 of 2012 (LPB) (RSA, 2012). The National Alliance for the Development of Community Advice Offices (NADCAO) has organised a petition calling for such regulation and recognition. Dugard and Drage’s (2013:33) study on the contribution of CBPs to access to justice in South Africa notes that the LPB “was stalled for many years, apparently due to hostility from the legal profession that is sceptical about the role and standing of CAOs. The LPB was resuscitated at the end of 2012 and public hearings were held in February 2013. It aims to provide affordable legal services and a restructuring of the legal profession”. Dugard and Drage (2013:33) point out that the latest LPB “does not encompass the incorporation of paralegals”. Hawkey (2013:41) notes that, the Constitutional Literacy and Service Initiative’s (CLASI) response to the exclusion of
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paralegals from the LPB maintains that this undermines the status of the paralegal sector within the South African legal landscape. The NADCAO submits that such exclusion goes against the intended spirit of the LPB to unite the legal profession (Hawkey, 2013:42). Finding new ways to include citizens in “the justice system through complementary formal and informal systems encourages community participation in the criminal justice system” (Stapleton, 2007:23).
Stapleton (2007:20) observes that CBPs “have a long history in many African countries. All these countries have non-lawyers that offer some kind of legal service”. Community-based paralegals are recognized in Botswana, Democratic Republic of Congo, Ghana, Kenya, Niger, and Rwanda, but only in Botswana, Kenya, Niger and Tanzania are they statutorily regulated. Stapleton (2007:22) notes that paralegals are not officially recognised and regulated in South Africa, Cameroon, Senegal, Uganda, and Zambia. Since 2012 CBPs have gained recognition in Malawi and Sierra Leone replete with relevant statutes and policies to formally involve CBPs in the criminal justice system (Schonteich, 2012:25). Similarly, Asian countries such as Indonesia, the Philippines, Bangladesh and India make use of CBPs. The findings of this study could therefore strengthen the argument for the functionality of CBPs and the use of community restorative justice to facilitate access to justice across the African continent and abroad.
Community restorative justice is a global concern. While it has only recently gained prominence on some continents, many African and Asian countries, including South Africa, have been practicing it for centuries as part of indigenous law. Africa has rich indigenous justice traditions that focus on repairing the harm caused to the community by crime and other human rights violations. The findings of this study will therefore help solve the research problem discussed below in order to narrow the gap between indigenous practices and statutory law and address women’s domestic safety.
1.4 Research Problem
As the literature review below attests, access to justice in rural areas remains elusive in democratic South Africa. Although women’s rights are an integral part of human rights, the country’s criminal justice system is struggling to ensure access to justice for victims of domestic violence. As Hanna (1996:1871)points out, the criminal justice system is often unable to protect women against violence because a woman “may not want to send her partner to jail, break up her family, or subject herself to the criminal process. These decisions are her choices”. Hanna adds that it could be assumed that the criminal justice system’s interference in “a woman’s private life can be victimizing rather than liberating” (Hanna, 1996:1871).
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The fact that women choose not to make “use of the criminal justice system to solve their domestic problems is a global issue. It is internationally recognised that the traditional criminal justice system is struggling to meet the needs of victims of domestic violence” (Nancarrow,2006:89). According to Van Wormer (2009:114), the United States and Canada provide for mandatory arrest and prosecution of perpetrators of domestic violence. However, this does not encourage women to call the police when they have been abused. The victim’s right to choose is not part of this mandatory policy; the state uses its powers to compel women to cooperate in the prosecution of their abusers (Van Wormer, 2009:114). Chopra and Isser (2012:345) observe that formal justice systems “that are effective in upholding human rights of women may produce adverse and unwanted, if unintended consequences for women”.
Grauwiler and Mills (2004:51) note that “as many as 50% of women choose to remain in abusive relationships for emotional, cultural or religious reasons. They cite one reason why women are reluctant to engage the criminal justice system: two decades ago, women were not consulted on whether the offender should be arrested.” Even today, women’s viewpoints are still considered irrelevant. Grauwiler and Mills (2004:51) point out that “women in abusive relationships are placed in the untenable position of choosing between protecting their lovers or husbands from incarceration, or protecting themselves by relying on a criminal justice system that is unresponsive to their individual needs.” Zehr (2002:3) contends that restorative justice could overcome such limitations.
In 1998 the South African government passed the DVA (116 of 1998) that aimed to address domestic violence and increase access to justice. The DVA provides judicial measures to give victims swift and effective protection. However, some women choose not to use the remedies provided for in the DVA, and seek alternative remedies such as restorative justice from community-based advice offices.
Community-based paralegals have been assisting women who choose not to follow the criminal justice route for years. Van Wormer (2009:114) suggests that, “the widespread dissatisfaction by battered women with the criminal justice systems opens doors for consideration of alternative forms of dealing with domestic violence”. She adds that “restorative justice programmes offer several major advantages”.
The question of whether domestic violence is effective or even appropriate for domestic violence has been the subject of increasing scholarly debate. “New Zealand has been a pioneer in the development and expansion of restorative justice in the adult and youth criminal justice systems, but has taken a cautious approach to using restorative justice in adult cases of domestic violence” (Nancarrow, 2006:90). Nancarrow (2006:90) explains that there are fears that conferencing “cannot convey the seriousness of these crimes, nor cope with the particular dynamics and general community stance on violence against women”. This study contributes to this debate by examining the concepts of access
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to justice in a democratic society, restorative justice and its role in African society and the role of CBPs in access to justice through restorative justice with specific reference to domestic violence.
There is scant scholarly literature on the role of CBPs as a whole; this study examines the lack of access to justice for women who may shy away from the formal criminal justice system when confronted with domestic violence; whether or not community restorative justice (CRJ) can be used in cases of domestic violence and the need for knowledge production on these matters. The research problem gave rise to the research questions and objectives set out below.
1.5 Research Questions
Women are choosing alternative approaches to deal with their domestic situations. The fact that women, especially rural women, do not always have access to their full panoply of rights and entitlements is a problem. The research questions that address the problem regarding the role of CBPs in using Restorative Justice (RJ) in domestic violence cases are:
What is the role of CBPs in restorative justice in KZN?
Do CBPs use restorative justice initiatives in domestic violence cases? If so, how? If not, why not?
Is restorative justice intervention by CBPs appropriate for cases of domestic violence? If so, how? If not, why not?
Do restorative justice initiatives by CBPs increase access to justice for victims of domestic violence? If so, how?
What factors contribute to the success or failure of restorative justice initiatives for domestic violence cases handled by CBPs?
1.6 Research Objectives
The research questions led to the following objectives in relation to both the role of CBPs in restorative justice and the need for knowledge production on the use of restorative justice in domestic violence cases:
Explore experiences of CBPs’ approaches to restorative justice.
Examine whether community restorative justice has a role to play in response to domestic violence.
Help narrow the gap in the literature regarding CBPs’ use of community restorative justice to handle cases of domestic violence.