I salute the community-based lawyers at the Center for Community Justice and Development (CCJD). Access to Justice: The Role of Community Advocates in Community Restorative Justice in Rural KwaZulu-Natal.
List of Matrices
List of Tables
Introduction to the Study
To better understand the role of paralegals, this study highlights the experiences of CBPs in community restorative justice for victims of domestic violence. Do CBP's restorative justice initiatives increase access to justice for victims of domestic violence.
Access to Justice
After the research problem, research questions and research objectives have been identified in the light of a brief review of relevant literature, the structure of the dissertation follows. This chapter introduces the study by highlighting the reasons for the study, its context, research problems, research questions, research objectives, and the structure of the dissertation.
Community Restorative Justice: An Informal Justice System
Contribute to the debate on whether the DVA (116 of 1998) meets the needs of rural women.
Community-Based Paralegals
This chapter describes the research design, strategy, data collection methods and data analysis as well as the sampling procedures used in the study and how these methodological techniques were applied.
The Case of Bulwer Community Advice Office
The Case of Ixopo Community Advice Office
The Case of Madadeni Community Advice Office
The Case of New Hanover Community Advice Office
Comparative Findings and Analysis across Community Advice Offices
The chapter includes the application of data to the social science meta-conceptual framework, yielding non-doctrinal analysis. This is followed by doctrinal analysis of the DVA and domestic violence-related case precedents in relation to the qualitative data results;.
Conclusions, Policy Implications and Recommendations
- Gender-based barriers to access to justice
- Domestic violence and the rule of law orthodoxy in South Africa
- The historical background: The application of the traditional justice system in South Africa
- The structure and functioning of the traditional justice system in South Africa .1 Traditional courts
- The procedures, processes and jurisdiction of the traditional justice system .1 Procedures of the traditional justice system
- Empowerment through forum shopping across plural justice systems
- Community engagement and language usage towards legal empowerment
- Definitions
- Informal restorative justice and criminal justice philosophies
- Theory of reversal of moral disengagement
- Theory of reintegrative shaming
- Theory of social and moral development
- Theory of engagement and empowerment
- Theory of reparation or restoration
- Theory of universal pragmatics and communicative action
- Limitations of restorative justice theories
- Arguments in favour of the use of community restorative justice in cases of domestic violence
- Arguments against the use of community restorative justice in cases of domestic violence Scholars find restorative justice inappropriate or less appropriate for domestic violence cases largely because
- Arguments for the use of the traditional justice system for domestic violence cases
- Arguments against use of the traditional justice system for domestic violence cases
- The debate on using the criminal justice, traditional justice and informal restorative justice systems in response to domestic violence
- The debate on whether domestic violence cases are a public or private matter in plural legal systems
- Potential problems with community restorative justice This section discusses each of the problems identified in Table 3-1
- Potential benefits of restorative justice
Makec believes that adaptability (flexibility) and simplicity are the most remarkable features of the traditional legal system. In contrast, Ntlama and Ndima (2009:16) believed that the TCB could potentially promote access to justice in South Africa. The discussion that follows focuses on the official version of the traditional legal system as discussed in the literature.
The discussion now shifts from the historical background to the implementation of the traditional justice system. Most scholars agree that the procedures of the traditional justice system are evolutionary, affordable, accessible and uncomplicated (Ntlama and Ndima, 2009:18; Skelton Ndulo, 2011:97). It highlights the debates in the literature on the use of community restorative justice (CRJ) in cases of domestic violence, the use of the traditional justice system in cases of domestic violence, and the arguments for the simultaneous use of plural justice systems for such cases.
Roche (2004:27) opines that "restorative justice emphasizes the humanity of both offenders and victims. A common theme among both supporters and opponents of the restorative justice process is that the dynamics of domestic violence create challenges for this practice. Hoyle argues that “restorative justice must operate within the criminal justice system because of the benefits of due process and checks and balances in the latter system.
As can be seen from the above discussion, the debate about the appropriateness of the use of community restorative justice in domestic violence cases has not been resolved.
Community–based Paralegals
- Definition of community-based paralegals
- Description of community-based paralegals
- Distinguishing community-based paralegals from other paralegals
- Network management by community-based paralegals
- Categories of community-based paralegals in South Africa
- Profile of community-based advice offices in South Africa
- Service role
- Developmental role
- Human rights role
- Role across plural justice systems
- Potential problems in utilising community-based paralegals
- Potential benefits of utilising community-based paralegals
In terms of this definition, “the legal responsibility for a paralegal's work lies directly or solely with the attorney.” Dugard and Drage (2013:11) explain that “the common feature of community paralegals is the direct legal and quasi-legal interface with the clients and communities they serve.” According to Maru (2006a:2), CBPs are generalists who respond to “the varied justice needs of the communities they serve.”
Community-based paralegals have special skills acquired through experience as well as education that enable them to promote an understanding of the law in the context in which people live (Dieng, 2006:7). Community-based advocates generally tend to adapt their interventions and focus to the specific geographic area and needs of the communities they serve. Community-based Paralegals: Practitioners Guide (2010:25) points out that the involvement of the UKZN School of Law in the two organizations helped to develop a credible and accredited community-based program in KZN.
Cappelletti (1992:35) admits that people will continue to look for alternative forms of justice if their needs are not met: "The search for alternatives, has represented a fundamental part of what I happen to call the 'third wave ' in the access. -to-justice movement”. Dugard and Drage's (2013:38) study revealed that many of the soft skills of lawyers stem from the fact that they live in the community they serve.
Research Design and Methods
- Mixed methods research design
- Philosophical worldviews
- Interviews
- Focus groups
- Documentary evidence
- Archival records
- Observation
- Statutory and case law in a socio-legal study
- Data analysis strategy for mixed methods research
- Data analysis techniques for mixed methods research
- Strategies and techniques for legal analysis
Transferability emphasizes "the connection between epistemological concerns about the nature of the knowledge being produced and technical concerns about the methods used to generate that knowledge" (Morgan, 2007:73). Interpretive research emphasizes that "researched subjects are interpreters and co-producers of meaningful data. According to Haverland and Yanow in interpretive research, a case study is often used as a synonym for 'place' or 'setting'; the limited location in which the research was conducted that is considered to have the potential to illustrate the focus of the researcher's interest.
This study is concerned with 'why' women who are victims of domestic violence choose the CRJ approach administered by SBPs, and 'how' the informal approach of CRJ is applied by SBPs. Other questions to consider are whether data sought will "throw more light on the research topic"; and “the feasibility from the point of view of both the researcher and participants” of conducting in-depth interviews or focus groups. According to Creswell in using a sequential strategy, "the researcher seeks to extend or extend the findings of one method with another method".
By using a transformative strategy, "the researcher uses a theoretical lens as an overarching perspective in a design that contains both quantitative and qualitative data" (Creswell Creswell, 2009:15) explains that "this lens provides a framework for topics of interest, methods of data collection and results or changes expected from the study.” When triangulating “the data, the events or facts of the case study are supported by more than a single source of evidence”.
Breakdown of Cases
2009 ‐ 2011 (Bulwer)
Domestic violence cases dealt with at Bulwer CAO include physical, sexual, emotional, financial and verbal abuse in a domestic relationship. BWP1 reported that 40% of the domestic violence cases she handles involve emotional abuse, followed by financial abuse at 35%; in fact, she said the two are often linked. However, BWPI said not everyone is comfortable talking about sexual abuse and when they do, it takes a lot of courage.
An important statement from BWP2 is that one case can involve all four acts of domestic violence. BWP1 explained that HIV/AIDS contributes to the problem and dynamics of domestic violence: "Partners do not accept that they are HIV-positive, and when one of them tests positive, this causes arguments. Another factor is unemployment, which leading to arguments over money to buy food, maintain the household and raise children, as illustrated by the following case reported by BWP2.
Target Beneficiaries All Case Categories ‐Bulwer
The majority of cases are between spouses and the cases are mostly resolved through the restorative justice process. Grauwiller and Mills (2004:66) explain that the practice of restorative justice "provides the opportunity to address the problem of domestic violence holistically and directly". Moult's (2005:21) research revealed that "victims of domestic violence also prefer to use multiple structures to contain the offending behavior and thus mediation and protection orders".
In 2009, the Bulwer CAO recorded 140 cases of domestic violence, of which 71 were resolved through the restorative justice process; 67% of these are recorded as successfully mediated (Smithers et al Sangweni, 2012. Center for Community Justice statistical reports). In 2010, the office handled 93 cases of domestic violence; 64 of these were addressed through mediation, of which 57 were successfully resolved. The rate of successfully mediated cases is high, demonstrating that CBPs resolve domestic violence disputes using the restorative justice approach.
Participants noted that domestic violence often goes unreported because people do not want to go to the police. Participants were vocal about keeping their experiences of domestic violence private, which explains the high rate of VOM at the Bulwer CAO.
Cases Mediated 2009‐2011
Unsuccessful cases refer to cases that were mediated but no agreement was reached; these cases were then referred to court for protective orders. All the participants said that someone who had previously visited the CAO referred them to the office. Both the police and the courts are involved in combating domestic violence, with the courts being most involved as protection orders are applied for and granted there.
The police have a role when physical violence warrants an assault charge and when protection orders are violated.
Cases Referred for Protection Orders 2009‐2011
Qualitative data from interviews of paralegals and a focus group of service recipients This section presents data adduced from paralegals and focus groups. It is organised under sub-headings
These particular matrices were created jointly by the researcher and the CBPs who participated in the study. However, in the process column, the researcher makes every effort to preserve the voices of the relevant paralegals. It also provides evidence on how CBPs use restorative justice initiatives to address domestic violence, whether or not a restorative justice intervention is appropriate in cases of domestic violence, and whether CBP-led initiatives increase access to justice, as well as identifying factors that contribute to the success or failure of restorative justice practices such as VOM.
As we are based in a police station, the police, the traditional court and other stakeholders such as social welfare refer all cases of domestic violence to our office. We ask the client who referred them and what brought them to the office to determine that they have come to the right place.” BWP2. Participating in mediation at this office is voluntary, but the offender may participate due to fear of arrest.” BWP1 “The reason some people come in is because our call letter says they have to report to the office at the police station.” BWP2.
A country person always asks a question that confirms whether she has arrived at the right place. They first need to make sure they are speaking to the right person and have gone to the right place they have been referred to.” BWP1 “Others are picky; they only want to speak to a legal assistant who is married and older.' BWP2.
