Request for assistance regarding a South African case
Jul 26, 2010
from Ann Skelton:
Mike Batley and I are currently working on a Constitutional Court case in South Africa in which we are arguing that the civil justice system has not kept pace with developments in the criminal justice system to encourage more restorative justice approaches.
The case in point is a civil claim for damages for defamation of character by a school teacher against school pupils who manufactured a naughty (but funny from an adolescent perspective) picture of him by pasting his head on the body of a gay wrestler. The picture was on the school notice board for 30 minutes, and some children in the school also received the image via their cell phones.
The children were punished in school (5 detentions + honours colours taken away), were charged criminally and were diverted (they completed 56 hours of community service at the zoo), they attempted to apologise, and have now been successfully sued through the civil justice system to pay damages. They now appeal to the Constitutional Court. Their main arguments have to do with Freedom of expression and 'jest' as a defence, but the Restorative Justice Centre is entering as amicus curiae to make various points about restorative justice.
We are arguing in the case that a more restorative approach (rather than claiming monetary damages) would have promoted healing and been more proportional, and we are aiming to make comparisons with our new Child Justice Act, which encourages diversion and allows for FGCs and VOMs as an alternative to prosecution (and at sentence). So we are in fact arguing that the civil justice system - at least in regard to children - in South African common law has not kept pace with criminal law developments that have now infused RJ into the statutory criminal law.
We are thus looking for any judgments that might help us with this argument, as well as any published papers. Can you point us in the direction of any such resources?
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Restorative justice works best for the victim when the harmers admit what they did was wrong, recognise the harm they've done, and cfreate ways to mitigate the harms they've created. In this case the teacher was harmed, the parents of the harmers wre harmed, the general student populatiuon was harmed as well as other faculty at the school. Look at the event as a harm not as a crime. Think about repaoring the harm not punishimg offenders.