Should criminal offenders be given chance to pay off victims? — report

Criminal court rolls are being sped up by allowing victims and offenders to agree on monetary compensation.

Alternative Dispute Resolution (ADR) mechanisms bridge the gap between time consuming prosecutions and the quest for justice.

Some argue that ADRs amounts to a miscarriage of justice while others have called the process “progressive”.

Court backlog

ADRs allow for a streamlining of court resources and proponents say it shifts the objectives of justice from punishment to recovery.  

The mechanisms have been used to settle cases where the charges involve petty theft, assault, and malicious damage to property.

Illustrating the pressure on the courts, the Department of Justice and Constitutional Development (DJCD) previously stated that roughly 23 500 cases had been on the roll for over nine months.  

Africa Criminal Justice Reform co-founder Professor Lukas Muntingh argued that there was no basis in law for ADRs.

“The fact that it happens behind closes doors or in court hallways without judicial oversight completely undermines justice,” Muntingh told the Sunday Times.

“Money is a perverse incentive and allows perpetrators to buy their way out. There is no legal basis for the state to withdraw charges conditionally,” he explained.

Muntingh said the National Prosecuting Authority (NPA) last listed ADR figures in 2020, where 146 900 instances were registered.

National Prosecutions Service role

The DJCD stated in its 2023/24 annual report that it had received a research paper on ADR in criminal matters and in its 2025/26 Annual Performance Plan (APP) it outlined the work done by the National Prosecutions Service (NPS)

“The NPS [is] primarily responsible for general and specialised prosecutions and the appeals that might follow, which include resolving criminal matters outside the formal trial process through ADR mechanisms, settling admissions of guilt for minor offences and considering dockets brought by the police where people have not been charged,” the APP states.

The DJCD state that ADR involves several methods for settling cases, adding that within the National Prosecuting Authority it included diversion and informal mediation.

“This sub-programme further deals with priority crimes litigation, sexual offences, and community affairs and specialised commercial crime,” the APP states.

Mediations process

Chantal Kur of The Mediation Clinic has experience in criminal ADR and currently specialises in family and community dispute mediation.

“The best cases are where the victim and offender know each other, where the harm is relational or emotional, and where there is a willingness to repair, not just punish,” Kur told The Citizen.

Kur said the ADRs were aimed at preventing reoffending, empowering victims, enhancing community involvement in dispute resolutions and benefitting criminal justice agencies.

ADR may begin before a charge is laid, before a suspect appears in court, before the accused pleads and even before and after conviction and sentencing, Kur advises.

She stressed that parties must be given a reasonable amount of time to consider their restorative justice options and that parties must understand they may walk away from negotiations at any time.

“It is new and progressive. Restorative justice sees crime as an act against the victim and shifts the focus to repairing the harm that has been committed against the victim and community,” said Kur

“It believes that the offender also needs assistance and seeks to identify what needs to change to prevent future re-offending.”

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