Hindu perspectives on alternative dispute resolution : Lessons for South African criminal law

Abstract

Alternative Dispute Resolution (ADR) existed in various forms in most traditional societies since time immemorial. Today, modern ADR mechanisms are widely recognised and utilised globally to resolve a broad range of disputes. Finalising cases through ADR, in lieu of litigation, creates a more victim-centred, reconciliatory approach without sacrificing justice. Whereas great progress has been made in South Africa with ADR in the civil law domain, the same is not true in the ambit of criminal law and procedure. The current adversarial court system emphasises retribution, focuses on the offender and no legislative provision is made for ADR in the case of adult offenders. South Africa presents with high crime rates which impacts case workloads in criminal courts. Currently "informal mediations" are conducted by prosecutors in petty criminal cases despite the absence of legislation authorising these procedures. These shortcomings or lack of criminal legislation formalising ADR creates numerous challenges and uncertainties, not only with legal professionals who are confronted with criminal cases on a daily basis, but also for victims, complainants, their families and others affected by crime. Many cases are either not reported or are withdrawn because insufficient options exist which will solve the case to everyone's advantage and satisfaction. India has an extensive history of ADR. These ADR mechanisms, having roots in Hindu law, form the basis of the Indian legal system's current legislation on ADR. These examples are explored in this study. The absence of ADR in South African criminal law and procedure warrants our attention. There are immense benefits attached to utilising ADR in criminal cases in South Africa: the informal and flexible processes; the opportunity for all parties who are involved and touched by crime to heal; the restoration and reconciliation of offenders and complainants; the emphasis on compensation instead of retribution; and the addressing of the victims’ needs too. The focus remains on restoring rather than on conflicting and dividing. Furthermore, the added advantage of alleviating congested court rolls, reducing turnaround time for cases, circumventing prolonged and costly litigation, addressing different methods of offender reparation, and allowing the offender to account for misdeeds, cannot be overemphasised. With criminal law as its focus, this dissertation provides a comparative examination between the Indian and South African legal systems’ approach to ADR in criminal cases. Critical pieces of Indian legislation are dissected and the overall impact and influence of ADR in the criminal domain are reflected upon and considered as a learning curve for development of South African legal principles on this aspect. It is found that there is a dire need for a legislative framework to formalise ADR within the criminal context in South Africa. In as much as, on a practical level, it will be impossible to implement entirely new structures and fora as established in India, the intention is to broaden the scope and applicability of existing structures and resources in South Africa. Recommendations include: extending the scope of the Criminal Procedure Act 55 of 1977 to specifically incorporate ADR and victim offender mediations; incorporating ADR modules into university curricula; amendments to existing policies promoting ADR usage in criminal matters; utilisation of traditional courts as ADR courts; revising the NPA Directives to include ADR in not only petty cases; imposing duties on judiciary and litigators to inform disputants about ADR options; and actively informing the general public about ADR options in criminal cases.