Browse

You are looking at 1 - 10 of 25 items for :

  • Criminal Law x
Clear All
Author: Heinz Klug

Reflecting on an essay originally written in response to the Truth and Reconciliation Commission (TRC) process, this chapter begins with the text of that original 1998 essay, marked as “justification”, which is then followed by a present-day reflection on that justification. The goal is to explore and understand the author’s ambivalence towards the TRC and why for them, “sorry” as a speech act is inadequate. The chapter argues that apology must be tied to accountability, even if that is limited to truth telling and acknowledgement. Sorry, from this perspective, would be so much more meaningful if matched with deeds that make reparations, even if small, for the harm done. 

Restricted access

During South Africa’s transition to democracy in the 1990s, reconciliation as a socio-political aim invoked the question of a white apology for apartheid. The Truth and Reconciliation Commission adopted a confessional approach in which amnesty was accessed through contrition based on knowledge (‘truth’) about National Party (NP) government violence against apartheid enemies. Lack of knowledge about state violence has been operationalised to exonerate white people from regime crimes. Quotidian dehumanisation and disadvantaging of black people, which co-produced white privilege, are obfuscated. Conflation of these plains of knowledge enables white ignorance and obviates the need for apology and, hence, for socio-economic redress. Drawing on analyses of whiteness as ‘epistemologies of ignorance’, the question of apology surfaces the constitutive dynamics of white unknowing, exemplified by the Afrikaner identity as most implicated in the institutionalisation of apartheid. Ways of knowing and humanisation, and how these reflect in and through apology, are explored through texts from three prominent Afrikaners: apartheid assassin Eugene de Kock; former Deputy Minister of Law and Order and Human Rights Commissioner Leon Wessels; and poet, author, and journalist Antjie Krog. These texts cut through the TRC’s too-narrow divisions of knowledge, and show the complex interaction between apology, humanisation and redress.

Restricted access
Authors: Leila Khan and Dee Smythe

Research points to a profound disconnect between victim conceptions of justice and the remedies offered by the criminal justice system. Where more restorative approaches are considered in the context of sexual offences, reservations have been raised by scholars and activists about their appropriateness to the seriousness of the crime and the context of unequal gendered power relations in which these violations occur. The lack of solutions for repairing harms caused by sexual violence and providing meaningful recourse for victims demands that serious attention is paid to the outcomes and the forms of justice sought by victims themselves. Apologies are known to be useful and important in the realm of harm-reduction, and to hold meaning and power for victims. Compensation can also play an important role in assisting victims to recover pecuniary and non-pecuniary losses. Because compensation, both as an end in itself and conceptualised in terms of apology, has meaning to victims of sexual violence, this paper suggests that it should be more intentionally included as a method of remediating harm for victims of sexual violence within the South African criminal justice system.

Restricted access
Author: Yasmin Sooka

This chapter locates apology as a fundamental element of the right of victims to reparations as recognised under international law, as having to be made publicly, and as constituting an acknowledgement of responsibility. The chapter, while focusing on apologies in South Africa, also examines apologies for serious international crimes made in other contexts before regional bodies, international tribunals and by Heads of State to populations at large.

The chapter critiques the South African Truth and Reconciliation Commission’s approach to apologies, and its flawed emphasis on Ubuntu and reconciliation, which permitted perpetrators to avoid accountability or responsibility, leading to the mistaken belief that they were entitled to forgiveness for the serious crimes of the past. The chapter advances the argument that, in the context of apartheid crimes, an apology is deeply offensive if not accompanied by an acknowledgement that apartheid was declared a crime against humanity, and an acceptance of responsibility and reparations for its crimes. By analysing the apologies tendered by the last apartheid-era President and struggle stalwart Winnie Madikizela-Mandela, the chapter demonstrates that any discourse on forgiveness and reconciliation is obscene if not accompanied by acknowledgement or commitment to reparations.

Restricted access
Author: Thuto Thipe

The land restitution process in South Africa has moved at a glacial pace over the past quarter century, in large part because of the state’s struggles to determine ‘just and equitable’ compensation to pay white landowners for land for the state to return to black people, whose land was seized by the colonial state. At the same time, the state put forward standard settlement offers to determine financial payment to previous black landowners. This compensation makes no attempt to take into account the actual value of black landowners’ stolen land, but rather offers ‘recognition’ for what was taken: a more symbolic than materially meaningful payment. This chapter examines how the state’s hollow apology to black freehold landowners is rooted in its failure to divest its policy framework from the colonial model that could only imagine black people’s land rights in collective terms, and could not fathom, even when confronted with legally binding evidence, that black people could claim and be entitled to the same rights and protections in land as white people.

Restricted access

Vernacular forums – or traditional courts – often order parties to apologise to one another. Versions of the Traditional Courts Bill (published in 2008/2012 and 2017) have consistently provided for an apology as an order that can be issued by such a forum. While there has been little reflection on what the value of an apology is when it is ordered, empirical evidence from vernacular forums shows that ordered apologies do not necessarily bear any relationship with reconciliation, which is the articulated goal. Alternative dispute resolution literature also shows that reconciliation is best achieved by other means than an ordered apology. This chapter explores the motives behind parties’, courts’ and legislators’ desire for the use of an ordered apology as a remedy, interrogates the conditions that produce the endurance of this desire, and challenges the conventional wisdom surrounding traditional dispute resolution practices and their relationship with harmony ideology. In so doing, it engages with the nature of dispute resolution processes as socio-politically performative environments in which social constructs are instantiated. It simultaneously considers the nature of customary law and the political economy of communities that continue to live under traditional normative arrangements in 21st-century South Africa.

Restricted access

In 2016, on social media, Penny Sparrow described black people as “monkeys” in a racist rant. In the same year Vicki Momberg, a victim of a smash and grab incident, described the police using the “K” word in a fit of emotive interaction with the black policemen who came to assist her. Two years later, another white South African, Adam Catzavelos, used similar language to describe black people in a public video. This chapter explores the event of public racist practice as a discursive and affective field that implicates bodies – white and black – through the lateral motion of affective economies of racial nostalgia and outrage. The reflexive racist outburst and the emotive public reaction attest to profound embodied histories of racial revulsion, pain and injury. We argue that both the demand for and performance of the public apology do different affective and embodied work that is bound up with a desire for recognition of the human. In the end, the public apology serves as a superficial exculpatory gesture that still refuses a recognition of the human in the other. We reflect on the meanings of this for broader meanings for and of reconciliation.

Restricted access

The chapter is an enquiry into the relationship between apology and reparation in the South African Truth and Reconciliation Commission (TRC). It investigates the role of shame in the TRC, arguing that for the apology to be reparative, it has to be accompanied by demonstrated shame. The discursive context of the TRC was saturated by the ideology of forgiveness and pardon without apology, to the extent that this discursive context severely occluded the role of shame in the apology, as demonstrated during the TRC’s amnesty hearings. The chapter enquires into the psycho-dynamic character of shame and concludes that shame fails when a fantasmatic relation is constructed with Lacan’s 'Other of the Other'. It was precisely this construction of the TRC that is responsible for the lack of shame before and in it. The TRC staged itself as an all-forgiving big “Other” which forgave in a hysterical fashion, and in doing this risked the authenticity of its discursive intentions to represent the gaze of the victims. The chapter proposes that it is time to assume the full sense in which the big “Other” is lacking, inconsistent and non-existent, in order to open the discourse of apology onto a new, and more ethical, horizon.

Restricted access
Author: Shireen Hassim

This chapter examines the appearance of Winnie Madikizela-Mandela at South Africa’s Truth And Reconciliation Commission, and specifically her refusal to make a full apology to the victims of the actions of the Mandela United Football Club. The chapter makes two arguments. First, that there is an implicit gendered script apparent in the hearing, in the ways in which apology was demanded, as well as in the affective moves at work in Madikizela-Mandela’s testimony. The chapter argues that the strategy of discursive reattribution at work in her testimony placed responsibility fully on the apartheid state as well as on the patriarchal double standard by which Madikizela-Mandela was judged. Second, the chapter argues that reattribution rather than apology was an effective device for the intended audience for the apology. In standing her ground, Madikizela-Mandela became the figure around whom a narrative rupture of the reconciliation project coalesced. In resisting the demand to provide a narrative of culpability, Madikizela-Mandela disallowed the TRC’s own narrative of truth-telling and personal accountability. This stance illuminated the emerging fault lines in democratic South Africa, between those who accepted the terms of the transition and those for whom the TRC side-lined justice in favour of reconciliation.

Restricted access

Equality Courts in South Africa are empowered to order an unconditional apology where hate speech, unfair discrimination, or harassment has been perpetrated. But is a court-ordered apology an effective remedy against hate speech? This chapter critically reflects on the role of court-ordered apologies as a remedy for hate speech. It does so through the lens of two South African Equality Court cases, each involving the publication of hate-filled bigotry against minority groups and each including a demand for an apology. These cases offer useful reflections on the effectiveness of apology as a legal remedy in relation to three ‘types’ of hate speech transgressors. The first is the recalcitrant hate speech transgressor who expressly refuses to apologise. The second concedes to an apology based on genuine and sincere remorse. And the third is the transgressor who – more cynically – may agree to apologise merely as a quick and cheap escape route from genuine reckoning. The chapter argues that in respect of each of these ‘types’ of transgressors, compelled apologies – when properly framed and crafted – can serve as a potent mechanism to restore and vindicate the dignity and equality rights of the target group.

Restricted access