Business-Led Restitution Dialogue Manual

Restitution and Business Dialogue Facilitator Guide

INTRODUCTION The Restitution Foundation seeks to have conversation with the business community on how to advance restitution and justice in South Africa. The Foundation has had focus groups before to discuss the concept of restitution. The Foundation would like to engage the broader business community in order to advance restitution and justice for the poor.

BACKGROUND We understand restitution to be one of the most significant tools available to us in addressing the residual ills of discrimination as well as other causes of inequity in our communities. Restitution involves seeking to set right the generational ills of inequality by engaging those who have benefited from the system, directly or indirectly, in transferring wealth and social capital and reinvesting in communities that are still suffering. We understand this not to be purely a racial issue, although we believe addressing our colonial-apartheid past is part of our mandate. Restitution should become part of our common vocabulary and set of tools for addressing situations in which any person or community has suffered harm.

Restitution is also a key component of justice, which we understand as the restoration of right relationships between ourselves, other people, and our environment, in which there is enough for everyone and no one goes without, and the dignity of every human being is revered. Restitution is easy to imagine in concrete terms. We understand the loss of money, land or even life. Now imagine that theft not only of resources such as land, education and money has occurred on a broad scale, but also of intangibles: dignity, a sense of safety, self-worth, an understanding of one’s rights, and a sense of belonging in one’s own country. The process of restitution recognizes that this is precisely the situation we face in South Africa today. How we make restitution for not just the tangible but intangible things that are lost when a person or community is harmed and dehumanized is something we must grapple with together.

It may help to know what restitution is not before we think about what it is. Restitution is not charity. Charity suggests discretionary giving out of one’s abundance; it services poverty but does not eradicate it. Restitution, in contrast, is highly relational, potentially costly, and long-term.

While restitution is about justice, it is not about punishment. We are used to thinking of a retributive model of justice, in which payment is exacted in proportion to the crime, but nothing is done to restore the offender to the community and the community may not benefit at all from the judgment. Restitution is about restorative justice. It understands that a crime is rarely just one person against another; it tears at the fabric of the whole community. The violation of the social contract is what is at stake. But perhaps we must begin thinking beyond even restorative justice. The very notion of restoration suggests that there was some previous time in which the parties lived in harmony and right relation with each other. Yet that is not the case; we do not have a time we can look back to as the paradigm of healthy relationships to which we seek to return. Perhaps, then, we should begin thinking in terms of transformational justice. Such an idea recognizes that we need a wholesale shift in the way we relate to each other—a transformation—that opens up new possibilities. Transformational justice asks us to go deeper, as we ask difficult questions about why things are the way they are, and how we can change the cycles in which we operate so that we can reduce conflict and create new and equitable relationships. Restitution is a key piece in achieving this establishment of right relationship.

Practical application The dream of making restitution is to create a model that will catch the imagination of the country, bringing about transformation.

Restitution involves recognizing that, the effects of sin and injustice accumulate over generations. And we are all caught up in its wake. The longer injustice has been unchecked the more difficult it is to heal.

Alongside material loss of land, money or goods are intangible things like dignity and self-worth, opportunities, safety and security, citizenship rights etc. On the other side, gains have also increased for those who benefited from the original injustices. While original victims and perpetrators may no longer be alive, their descendants have reaped either the on-going, compounding disempowerment or on-going, compounding benefits.

What needs restoration is people’s dignity, memory of injustices committed and their consequences, opportunities for all who want them, means so that land and wealth is shared, equality, and citizenship so that our democracy is stable and fair for all. Restitution requires engaging not only those who have been disadvantaged but also those who have benefited directly or indirectly. It involves relational investment as well as wealth. It needs to build social capital in education, skills-development and access to opportunities and awareness of one’s rights. The ‘setting right’ includes perceptions, respect and dignity of self and other.

None of this comes to us naturally or intuitively. We should expect, then, that the work of restitution and reconciliation will be a difficult and ongoing process, one that demands much of us and is costly. This sense of realism—that the task ahead is difficult and costly—is one that stands us in good stead when we encounter opposition, resistance and our own frailty.

Through restitution initiatives we seek to make people aware of their complicity with unjust systems, engage them in ways to relate afresh to their peers and to begin rectifying the situation.

Business Dialogues Outcomes

• Increased awareness in the business community of the need for restitution
• Broaden conversation on how South Africa can achieve lasting peace through restitution and reconciliation.
• Shift the focus of Corporate Social Responsibility to be on bringing healing and wholeness to previously disadvantaged communities
• Advance business models that promote restitution
• Demonstrate a clear business case for restitution
• Explain how restitution is different to charity and Corporate Social Investment and how restitution is a more wholistic model

Three types of dialogues As of September 2017, The RF business subcommittee is discussing and has conducted three types of dialogues.

1. Small group dialogues on restitution
2. Charity vs Restitution Dialogues
3. Restitution Case Study

Small Group Dialogues This dialogue is design as a focus group with a small group of business individuals either from the same company or industry. However we find that the conversation flows easily where participants are not intimidated by their colleagues or bosses. It is recommended that a diverse group of business people from diverse sectors are invited. A group of between 8 – 12 people is recommended.

Aim: Participants discuss their understanding of restitution and how that impacts on their workplace environment. This space is not supposed to be a political forum to advance agendas. However, some ‘political’ topics can help participants to locate their thoughts in the dialogue.

Suitable Time and Venue Time is very important to the business community. We recommend a time slot that suits most of the participants. An early morning time usually suits those who are trying to avoid morning traffic. Therefore, an early breakfast meeting could be preferred i.e. 06H00 – 07H30.

The meeting should not take more than 1.5 hours. If the time is too short, the organiser can ask participants if they would want to set another date to continue the conversation.

A meeting room or boardroom that can accommodate up to 12 participants is recommended. Please consider this checklist for the venue. • Avoid large rooms with too many distractions. • Provide at least cold water and tea/coffee • Check where the entrances and exits for the venue prior to beginning of meeting. • Wheelchair access

Reconciliation Toolkit The RF has compiled many articles around the topic of restitution in a document called Reconciliation Toolkit. These articles provide concise understanding of some of the concepts involved in the dialogue of restitution. It is therefore advisable to read one of the articles together as a group.

It is helpful to get each member of the group to read one paragraph in the article to increase participation. Sharlene Swartz’ article on Restitution is important piece for the first session to help everyone with the understanding of restitution.

Discussion

• Ask each person what stood out for them in the article.
• According to your understanding what is restitution about?
• Do you believe restitution is achievable?
• Who is responsible for restitution?

Charity vs Restitution Dialogue The RF believes that restitution is not about charity but justice and the restoration of human dignity for people and communities devastated by apartheid. Even though the current Black Economic Empowerment policy is designed to be restitutive, the social development element of the BEE scorecard together with Corporate social investment extended by corporate to poor communities resembles charity rather justice. Justice in this context meaning making things right.

Participants This dialogue is aimed at CSI and Transformation managers and practitioners in SA corporate. Participants can also include the non-profit sector that are beneficiaries of CSI and philanthropic endeavours including researchers and community development workers. The meeting should have about 100 – 120 participants. The RF can partner with a well networked corporate services company that can reach a large group of participants e.g. PWC, KPMG or Deloittes. Alternatively, professional bodies like the NBI can also be engaged to partner.

Aim: • Develop consensus on the need for a restitution dialogue that could alter how poor communities are engaged in community development • CSI Managers are conscientised about the difference between restitution and charity and are convinced about the need to rethink the status quo • Present a clear long-term value proposition for a restitution engagement from the business community.

Meeting Format This meeting will have a panel of 3 or 4 speakers who consist of 2 members of the business sector preferably at HOD/director level dealing directly with transformation or corporate social responsibility. The other speaker can be respected voices in the social justice or restitution space who can articulate the need for a restitution paradigm in business. The meeting will also have a facilitator who can be a member of the Restitution Board or another suitable person.

Each speaker presents for 10-15 min. Thereafter a panel discussion followed by a Q&A from the floor.

Venue and Time It is recommended that two similar meetings be held in Johannesburg and Cape Town to reach as many participants as possible. A corporate meeting hall or hotel conference room that can accommodate 120 people should be suitable. The meeting time should be 2 hours.

Restitution Case Study: Property Development

The RF is currently (August 2017) considering a proposal to move commercial development to township through rezoning properties along the main transport arteries through township areas. The RF sees a restitution case for transfer of wealth to poor households, moving work opportunities closer to where most workforce lives and extending services to under resourced areas.

The RF has considered that there are other businesses that have transformed whole industries by extending services to poor households e.g. Shoprite business model focuses on providing low cost retail services to low income households. In the banking sector, Capitec has grown to a large bank by providing banking services to the poor households.

The RF believes there is a business case for the commercial property development sector to create massive value for poor households and itself by locating industrial, commercial and residential properties along major transport arteries where the major of city population is located.

Aim • Demonstrate the systemic impact of a restitution model in business • Present current successful business models that target low income households • Demonstrate how other cities have managed to shift development to low income areas through rezoning process

Meeting Format • Presentation of systemic impact of a restitution model (25 min) • Presentation by Shoprite/Pepkor on their business model as restitution (25 min) • Discussion between presenter and facilitator • Q&A

Participants • Built environment players e.g. construction, property developers etc • Financial sector e.g. institutional investors, fund managers, bankers • Business school researchers • Development practitioners • City planners and provincial government representatives

RESTITUTION: A NEW AND SURPRISINGLY POSITIVE AGENDA FOR TRANSFORMATION IN SOUTH AFRICA Sharlene Swartz

Restitution is a difficult word. Historically and in legal language, the word ‘restitution’ has been defined as restoring matters to the state they were before an injustice occurred. Naturally, such an aim is not easily achieved: where people have been dishonored, dispossessed, enslaved and sometimes killed, and where racial superiority has become institutionalized and privilege engrained into the psyches of whole groups, what was lost is irretrievable.

However, if we take the word restitution to simple mean ‘paying back’ or ‘making things right’ for wrongs previously committed we find it’s a very useful term to use when thinking about what can and should be done about the past. In addition, although we usually associate the term restitution with land claims - returning land unjustly taken - the term applies to more than just land. It is one of the ways in which we can truly heal the damage of the past, and extends beyond financial ‘paying back’ to include spiritual, material and other practical and symbolic actions to ‘make things right’.

In my opinion, restitution has four main legs.

First, we need to understand and recognise the way in which our past has damaged our humanity – no matter which side of the divide we find or found ourselves on. Apartheid’s damage to the human spirit has resulted in ongoing social ills such as violence, crime, addictions, joblessness, educational failure, poor physical and mental health and senses of social inferiority along with enduring economic deprivation. For those in positions of privilege, harm has also occurred. While it cannot be compared in scope and severity, aspects of these include indifference, the normalization of inequality, the numbing to and fatigue of need, along with the lack of ability to connect, listen and empathize. These effects of the past on the present need to be understood in order to serve as a catalyst for forward-looking action.

Second, and related to our understanding of the past, is what roles each of us has played, recognising how these roles become complicated over time. In the South African context, the conventional triangle of perpetrator-victim-bystander seems to be inadequate for engaging people across multiple generations and in the light of popular disavowal of (or at least amnesia about) past atrocities. Instead we need to locate ourselves within a set of more complex positions and locations of actors in order to achieve social transformation through material and symbolic restitution. Proposed labels that might help us to enrich the conversation include that of architect, implementer, dishonoured, beneficiary, and inheritor - categories described in relation to both injustice and resistance to injustice. Offering a wider range of positionalities serves to broaden the debate and defuse simple accusations of guilt and blame. In the context of a country such as South Africa, which is still deeply divided along racial lines corresponding to the legacy of Apartheid, this approach is able to present to individuals their accountability for the past without alienating them from a national process of healing through acts of restitution.

Third, acts of restitution need to happen different levels alongside government programmes and in dialogue with all affected, and will only be effective if everyone sees themselves as having a role to play. So while government and legal programmes such as penalty payments, land redistribution, and affirmative action (acts of restitution with which we are most familiar) are important in bringing about social transformation after conflict and injustice, the participation of civil society, communities and individuals is vital in fulfilling restitution’s wider aims.

Fourth, restitution should have as its ultimate aim restoring our sense of humanity and should do so in solidarity with others for all our benefit. Strategies for restoring personhood comprises remembering past injustices, working towards human dignity, fostering active senses of belonging (including citizenship and equality) and implementing projects to foster physical and psychological flourishing. Such restitution-in-practice actions tied to individual and group actions might include building friendships across former lines of enmity, learning an indigenous language and asking for forgiveness and disrupting the perpetuation of inter-generational transfer of wealth through inheritances, for example.

These ideas of restitution offer a surprisingly refreshing opportunity for dialogue and a more relational interaction between those dishonoured by injustice and those complicit with it. In this way the issue of restitution should not leave us angry or jubilant (depending on where we are located with regards the past). Instead it has the potential to show how we all have a role to play in building the future we want for ourselves and our children across all of the divisions of the past.

Download this document here: Business Led Restitution Dialogue Manual