Punishment, central to any legal proceeding where the accused is found guilty, directly falls under criminal law and is determined by punishment theories. Whether South Africa is moving towards restorative justice approaches influences many aspects: it allows the protection of society, results in more of a crime-free life for the offender and it gives offenders the chance to learn from their experience, and 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, serious crimes and less serious crimes.
Restorative justice versus traditional theories
Punishment theories such as retributive and utilitarian approaches focus on the objective to ‘right the wrong’. Retributive theories are based mostly on theological principles; where the offender can only pay for his ‘sin’ by suffering. On the other hand, utilitarian approaches are focused on the legal and moral order and protecting society and potential victims from the offender. This approach also centers on using the deprivation of liberty, pain and suffering to deter potential offenders. Both of these theories focus on punishment as penance. Restorative justice, defined by Burchell, as “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.”
Restorative justice focuses on the “healing of breeches, the redressing of imbalances and the restoration of broken relationships.”
Restorative justice principles are being applied in many facets of the criminal justice system; including serious crimes, lesser crimes and crimes of children. The majority of the cases favour the restorative justice principles and if they don’t there is adequate reason therefore. The State plays an extremely important role in the progressive use of restorative justice principles as it provides the legal framework for it and it evident that South Africa is supporting these principles. It is, however, important to consider that each case needs to be judged according to its own circumstances. In more serious cases, where minimum sentences are applicable, restorative justice principles are not always being applied. This is not to say that a combination of restorative justice principles and more ‘traditional’ theories of punishment cannot be used. However, Restorative justice shouldn’t be considered a ‘soft’ option that excludes the need for actual punishment. It can successfully serve many of the goals and shortcomings of traditional punitive methods; including deterrence, crime reduction, rehabilitation and incapacitation, while taking the victims interests into consideration. In many cases, restorative justice can be used...