There is an ever increasing trend of crime in our society. The troubling issue is that such an increase is also seen in violent crimes; between 2012 and 2013 alone there has been a 4.2% increase in murder cases. There are many contributing factors to these statistics, one of them being the effectives South Africa’s judicial system. A punishment system which deters people from becoming first time offenders, as well as prevents existing offenders from re-offending will play a crucial role in stabilizing the level of crime in South Africa. This essay will consider whether restorative justice is an effective process and hence whether it is gaining support in the South African ...view middle of the document...
With restorative justice the accused attempts to repair broken bonds, as far as possible, with the victim and those affected by the criminal conduct of the accused.
The exact way in which these relationships will be repaired is dealt with in such a way, where the interests of the victim and the interests of the community play a considerably influential role. An agreement is reached between legal experts, the victim and the community, describing how the ‘broken bonds’ will be amended. This agreement is only limited in that it cannot infringe the human rights of the accused.
According to Zehr and Toews the restorative justice process can be separated into two components, namely, the “process conception” and the “values conception.” The process component deals with the idea that restorative justice implies a change in the criminal process with which we deal with the accused. The values component suggests that restorative justice promotes a move away from punishment associated with vengeance and a shift towards reconciliation.
Restorative justice involves the formulation of punishment by taking into account the demands of the community and designing a punishment which fits the criminal and not the crime. The aim of restorative justice is to place the parties involved in the dispute, in the same or similar position prior to the disturbance of the crime.
Ultimately restorative justice will be considered effective if it achieves better results than existing state punishment techniques. The effectiveness of restorative justice and its future in the South African legal system can analysed by exploring its existence in legislature, case law and in the opinions of legal experts.
The concept of restorative justice and its weight in South African Criminal law will be heightened considerably with its inclusion in legislature. Restorative justice and those principles closely linked to the process; do exist in South African law today.
4 1 The Child Justice Act 75 of 2008 (“The Child Justice Act”)
Prior to The Child Justice Act children who committed a crime were dealt with in terms of the Criminal Procedure Act 51 of 1997 (“The Criminal Procedure Act”). The Child Justice Act deals with those below the age of 18 years who allegedly committed a crime. The underlying similarity between this act and the aim of the restorative justice process is that a lighter or lesser sentence is imparted upon the accused.
In terms of the procedures of The Child Justice Act a preliminary inquiry occurs within 48 hours of the child’s arrest. The preliminary enquiry involves more than just the state and the accused. A magistrate, the accused, his or her parents, a prosecutor, probation officer, the arresting police officer and an attorney attend the inquiry. Furthermore section 61 (1)(a) makes mention of a family group conference, which includes the victim and his or her family.
Although this is not identical to the meeting involved with restorative justice, the...