Did you know that in certain circumstances parties to a criminal matter (i.e. the prosecutor, accused
and complainant) can enter into informal mediation (mediation) with a view to settling the matter and
avoiding a criminal trial?
Although not legislated for in terms of the Criminal Procedures Act 51 of 1977, Section F of part 7 of
the Prosecution Policy Directives (the Policy Directives) of 2014 creates the framework in terms of
which mediation in the criminal courts may be conducted. Section F (1) of the Policy Directives
states:
“1. Informal mediation is a further alternative dispute resolution mechanism to resolve
disputes arising from reported criminal cases”.
Mediation in the criminal courts are obtaining traction due to the fact that it offers a speedy resolution
to disputes, is a win-win situation for both parties in the disputes and promotes reconciliation.
In a mediation a prosecutor wears the cap as a mediator. Through Ubuntu, negotiations and
reconciliation by the prosecutor the parties may mediate a mutually agreeable solution. A mediation
can only take place if both parties participate in the mediation on a voluntary basis. The parties will
be informed up front that in the even that agreement is reached and complied with the prosecution
will not be pursued.
Parties are entitled to be legally represented during the mediation process.
Justice is safeguarded as a prosecutor will not enter into a Mediation Agreement unless the
prosecutor is satisfied that the agreement is in the interests of justice.
If an agreement is reached, the agreement will be signed by the complainant, the accused and the
prosecutor.
The agreement will be placed in the case docket and the prosecutor will request the court to record
that the reason for the withdrawal is the conclusion of mediation.
Unless authorised by the DPP (the Department of Public Prosecutions) mediation will not be
considered in regard to:
offences such as murder, rape or robbery with aggravating circumstances;
domestic violence cases involving assault or a threat of assault;
serious offences where victims are classified as vulnerable or children ;
offences which are racially motivated;
offences where the court will probably impose imprisonment without the option of a fine;
offences where the accused has previously committed a similar offence;
offences where provisions of the Child Justice Act are applicable.
If applicable, parties should consider mediation in the criminal courts as a viable alternative in the
resolution of the dispute between the parties.
