Restorative Justice Gaining Support in South Africa

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1 Introduction

Punishment is central to any legal proceeding where the accused is found guilty. It falls directly under criminal law and is determined by punishment theories. Whether South Africa is moving towards restorative justice approaches influences many aspects: it allows protection of society and results in more crime-free life for the offender. Consequently, it gives offenders the chance to learn from their experiences, gain insight into their behaviour and allows victims to handle their injustice. If South Africa is truly moving towards applying restorative justice principles in the resolution of disputes it will be evident in the legislation and recent case law in different fields; including crimes of child offenders, less serious crimes and serious crimes.

2 Restorative justice versus traditional theories

Punishment theories such as retributive and utilitarian approaches focus on ‘righting the wrong’. Retributive theories are based on the idea where the offender can only pay for his ‘sin’ by suffering. Whereas, utilitarian approaches are focused on the legal and moral order, protecting society and potential victims from the offender. This approach also centers on using the deprivation of liberty, pain and suffering to punish current and potential offenders. Both of these theories focus on punishment as penance. However, neither of these theories is concerned about the effects of the punishment on the accused nor the interests of the victim.
Restorative justice is “an essentially non-punitive [, or less punitive,] resolution of disputes arising from the infliction of harm, through a process involving the victim, the offender and the members of the community.” It focuses on the “healing of breeches, the redressi...

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RSA Sentencing (A compensation scheme for victims of crime in South Africa) 97.
RSA Presentation on restorative justice national conference on victim’s charter 2012.

Law Journal articles:
Skelton A & M Batley “Restorative Justice: A Contemporary South African Review” (2008) 21 Acta Criminologica 37.

Tshehla B “The restorative justice bug bites the South African criminal justice system” (2004) 17 SACJ 1.

Cases:
Director of Public Prosecutions, North Gauteng v Thabethe 2011 (2) SACR 567 (SCA).
S v Maluleke 2008 (1) SACR 49 (T).
S v MALGAS 2001 (1 ) SACR 469 (SCA ).
Manyolo v S [2011] JOL 26684 (ECG).
S v Matyityi 2011 (1) SACR 40 (SCA).
S v Melapi 2014 (1) SACR 363 (GP).
S v Nkunkuma [2013] JOL 30832 (SCA).
S v Shilubane 2008 (1) SACR 295 (T).

Legislation:
Child Justice Act 75 of 2008.
Criminal Law Amendment Act 105 of 1997.
Probation Services Act 35 of 2002.

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