It’s uphill for restorative justice when offender denies responsibility

ON TUESDAY, I sat in a packed courtroom and watched the human drama unfolding. My son, who incidentally is an advocate of the high court, was a witness in a hijacking incident that took place on December 23, 2016.

Nathan was the victim and his baby daughter was strapped in the back seat of the car. After forcing him out of the vehicle, two armed robbers tried to drive off with his daughter but miraculously the car did not want to start. He was able to get them to agree to hand over his daughter in exchange for him starting the car. They gave him his daughter, he started the car and off they sped.

The police were called and, within an hour, members of the SAPS National Intervention Unit arrested two suspects. They were caught on the Cape Flats and taken to the Philadelphia police station on the West Coast to be processed.

The efficiency of the NIU must be praised. One of the arresting officers, Randall Matthys, was in court and my son and I thanked him.

The case was finally scheduled for trial after many postponements.

As I sat in court, I watched the pained faces of the families of the various accused who appeared that morning. The courtroom was heavy with the weight of anxieties. One woman was so tense that her face was crunched and it looked as if she was in agony. The wrinkles seemed to multiply as I watched her. Then sentence was pronounced. Fifteen years minimum was given for the murder of a family member. The court made the distinction between regret and remorse when the accused started sobbing. The words that seem to reverberate off the walls of the courtroom echoed “where were your tears for the family of your victim”.

A 13-year-old girl was raped by two older men, one 31 and the other 24 years old. The court rejected their versions and found them guilty. Their bail was revoked and they were immediately taken into custody. There was a hush in the court and then I heard crying as family members left.

Finally my son was able to explain the events on the fateful day he was violently accosted and robbed. The matter was adjourned to September. I looked at the accused in the dock who had been denied bail as they made their way to the holding cells. They had vacant stares as if they did not care.

Nathan told me on the day of the incident that he had forgiven the people who attacked him and placed his daughter at risk. It was a noble thing to say given what he had experienced. While he felt no anger towards them, it did affect him emotionally. He had to work through his feelings. He didn’t suffer physical violence but experienced the terror of his oneyear-old daughter who was in danger.

I watched him in court and could see he was struggling to find words to describe what happened yet balance that with his sense of concern for the accused.

He knew his testimony could result in them being imprisoned. The tension between his concerns for them and holding them accountable was clearly not resolved. Mercifully the court adjourned and his brief testimony meant he had an opportunity to settle himself and address the issue of human concerns, truth, justice and accountability.

How does the concept of peace intersect with the requirements of justice and personal and public accountability? Where does restorative justice find a home in this unhappy situation? Is it even possible, given that the accused denied responsibility and pleaded not guilty?

Restorative justice seeks reconciliation, so that the offender, the victim and society can find balance. The balance is based on an agreed set of principles that will guide behaviour towards respect for the rights of others. But if the offender denies responsibility then it is not possible to balance rights.

My son saw the father of one of the accused in court and this also affected him. He told me afterwards he could see the sadness in the father’s distressed face. He thought about the parents’ trauma because of the son’s actions. The accused have families who love and care about them. Their peace is also disturbed by the negative choices their sons made.

Society has a right to expect peace and justice. Peace is not a concept of weakness but of strength. The accused must accept the consequences of their choices. They have shown no remorse and accountability principles must apply so that society can be at peace and protected from those who decide to violate the rights of others.