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DiversionTo most South Africans fortunate enough not to have been subjected to the looming terror of a criminal trial, incarceration and the lingering stain of a criminal record, diversion is just a nine letter word, however to those who have, it is a legal innovation with life changing effects.

Anyone is capable of making a mistake and it is this inherent fallibility that could cause a single lapse in judgment to result in a seemingly upstanding citizen being branded a criminal. Diversion seeks to address the real concern that a criminal conviction, and the stigma and possible incarceration stemming therefrom, may well lead a person to be exposed to influences which themselves may propagate further illegal conduct and lifestyle.

Diversion is the initiative which caters for a second chance for those who are young, those who haven’t transgressed before, those who live within the scope of the law and those who in the interests of justice, should not be condemned for a single mistake. An offender who successfully completes a diversion program will not be convicted and will not have a criminal record.

It allows the transgressor to atone for their crime, not behind bars, but through honest contrition, real service to the community and actual effort to correct the underlying defect in character which lead them to break the law.

The purpose of diversion is based on principles of restorative justice rather than that of retribution, with its aim to shield contrite offenders, who freely admit guilt, from the rigors of being subjected to the criminal justice system. It enacts varying degrees of rehabilitation and actions of contrition to allow the offender to both address the offence, their behavior and their future attitude and conduct. It aims to rehabilitate and redeem the offender rather than punish the crime. Its purpose therefore is to heal rather than to hurt, addressing the situation by rehabilitating the transgressor through positive steps such as making amends, attending constructive courses and to service the community rather than being ostracized from it.

At the outset, distinction should be drawn between major (adult) and minor (child) diversion, though the considerations and purpose are largely the same. Whilst the former finds it source within the Criminal Procedure Act 51 of 1977 and precedent substantiating it, the later finds its source within the Child Justice Act 75 of 2008..

Diversion, in the practical sense, largely finds its scope amongst first time offenders, who openly and freely admit their guilt before the onset of the actual criminal trial. Depending on the circumstances of the offence, anyone can be considered for diversion. The most common offences for which diversion may be considered are theft, attempted theft, shoplifting, assault and possession of narcotics. Diversion must be seen in light of the merits of a matter, taking into account key factors such as the nature and seriousness of the offence, the predisposition of the offender towards further criminal behavior, the personal circumstances surrounding the offender at the time of the offence, the prospects of success of such diversion in both preventing such further infringement and correcting the legal relationship between complainant and accused.

Diversion is usually initiated by the legal representative of an accused, but in certain circumstances may also be ordered by a magistrate or judge. Written representations are submitted to the prosecuting authority, who will then consider same. The diversion representations will contain all the surrounding circumstances and reasons to be taken into consideration for diversion. It serves by and large in the practical sense to highlight mitigating factors which substantiate why the interests of justice would be better served if the accused would be spared from the stigma of a criminal record, as well as the potentially devastating effects of incarceration and instead how society may be better served by their contrition and rehabilitation.

The prosecuting authority, will usually interview the accused. If they are satisfied with such representations, the prosecuting authority will recommend the offender as a suitable candidate for diversion.

The basic principles of the diversion process, are to address the actual offence and then attempt to correct the contributory behavior of the offender. The first step is usually for the offender to address and take responsibility for the offence. This may be through an apology and/or some kind of compensation to cure the damage suffered by the person wronged. The second step is to address the conduct. This is largely done through an establishment called National Institute for Crime Prevention and the Reintegration of Offenders (NICRO), which itself has spearheaded the cause of diversion in South Africa. This non-profit organisation offers a number of programs aimed to rehabilitate the offender and correct the defective behaviour so as to prevent further infringement.

The type of program depends on the conduct necessitating it. Violent crime may require anger management classes, whilst substance abuse may require rehabilitation and regular drug tests.

A third step is often some sort of community service, which may in itself be part and parcel of the rehabilitation process. Though this is often seen as the actual punishment, it should rather be seen as an active step, though sacrifice of time and labour, to re-address the damage done to society by the commission of the offence. The length and type of community service should also be appropriate and acceptable in light of all the surrounding factors. A typical diversion order can consist of community service of between 10-300 hours.

In conclusion, one should bear in mind that the purpose of diversion is not a one stop escape from responsibility entailing only empty apologies or reluctant toil in service of the community. Diversion exists to alleviate both the burden on the state and the offender, and more importantly to address the wrong against society. The criminal justice system in South Africa is overloaded and correctional facilities are often ill-equipped to deal with the rehabilitation of petty offenders.

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