TRC Final Report

Volume 1

Chapter 5

Subsection 10

■ UBUNTU: PROMOTING RESTORATIVE JUSTICE

80 A principal task of the Commission was “restoring the human and civil dignity of victims”. The work of the Commission as a whole, together with the specific contributions of its three committees, underlined the need to restore the dignity of all South Africans. In the process, the sons and daughters of South Africa would begin to feel truly ‘at home’.

81 Thus, the tensions and links between amnesty, truth and justice, and the relationship between the Commission and the criminal justice system in South Africa were meant to help prepare the way for the Commission’s contribution to the restoration of civil and human dignity. This was particularly important in view of the many ways in which the previous legal order, and the socio-political system within which it operated, “traumatised the human spirit” and “trampled on the basic humanity of citizens”.²⁰ In the words of Constitutional Court Judge O’Regan:

… Apartheid was a denial of a common humanity. Black people were refused respect and dignity and thereby the dignity of all South Africans was diminished. The new Constitution rejects this past and affirms the equal worth of all South Africans. Thus recognition and protection of human dignity is the touchstone of the new political order and is fundamental to the new Constitution .²¹

82 This was the background to the constitutional commitment to “a need for understanding but not for vengeance, a need for reparation but not for retaliation, a need for ubuntu but not for victimisation”. It was a commitment that called for a respect for human life and dignity and for a revival of ubuntu; a commitment that included the strengthening of the restorative dimensions of justice. Restorative justice can be broadly defined as a process which:

a seeks to redefine crime: it shifts the primary focus of crime from the breaking of laws or offences against a faceless state to a perception of crime as violations against human beings, as injury or wrong done to another person;

b is based on reparation: it aims at the healing and the restoration of all concerned – of victims in the first place, but also of offenders, their families and the larger community;

c encourages victims, offenders and the community to be directly involved in resolving conflict, with the state and legal professionals acting as facilitators;

d supports a criminal justice system that aims at offender accountability, full participation of both the victims and offenders and making good or putting right what is wrong.²²

83 Restorative justice challenges South Africans to build on the humanitarian and caring ethos²³ of the South African Constitution and to emphasise the need for reparation rather than retaliation - despite growing anger and insecurity in the midst of high levels of crime in South Africa.

84 We are also required to look again at the restorative dimensions of various traditions in South Africa, such as the Judaeo-Christian tradition and African traditional values. Neither is monolithic in its approach; both contain strong sources of communal healing and restoration. As such, they are sources of inspiration to most South Africans.

85 As far as traditional African values are concerned, the fundamental importance of ubuntu must be highlighted. Ubuntu, generally translated as ‘humaneness’, expresses itself metaphorically in umuntu ngumuntu ngabantu – ‘people are people through other people’. In the words of Constitutional Court Justice Makgoro: “Its spirit emphasises respect for human dignity, marking a shift from confrontation to conciliation.”²⁴ Constitutional Court Justice Langahas said:

During violent conflicts and times when violent crime is rife, distraught members of society decry the loss of ubuntu. Thus, heinous crimes are the antithesis of ubuntu. Treatment that is cruel, inhuman or degrading is bereft of ubuntu.²⁵

86 He goes on to observe that: We have all been affected, in some way or other, by the ‘strife, conflicts, untold suffering and injustice’ of the recent past... But all this was violence on human beings by human beings. Life became cheap, almost worthless.

87 It is against this background, vividly illustrated by the Commission process, that “a spontaneous call has arisen among sections of the population for a return to ubuntu”.

88 This call was supported by Ms Susan van der Merwe, whose husband disappeared in 1978 after allegedly being abducted and killed by an Umkhonto weSizwe (MK) unit. At the Human Rights Violation hearing in Klerksdorp, on 23 September 1996, she said:

The Tswanas have an idiom which I learned from my husband which goes ‘a person is a person by other people, a person is only a person with other people’. We do have this duty to each other. The survival of our people in this country depends on our co-operation with each other. My plea to you is, help people throw their weapons away…No person’s life is a waste. Every person’s life is too precious.