In a society filled with crime, violence, and corruption prisons are overflowing and imprisonment often creates more hardened criminals, rather than creating rehabilitated persons. South Africa needs to adopt a less putative approach to the punishment of crimes, and restorative justice can either help achieve this or only worsen matters. In this essay I will evaluate this punishment theory with regard to case law, legislation and various implementations relating to the matter. In evaluating these, I will develop my own opinion on restorative justice and its efficacy in a South African context.
Restorative justice: background and history
The main aim of restorative justice is to involve the perpetrator, the victim and the community in the process of punishing the perpetrator in a less putative manner, and restoring the perpetrator, the victim and the community to its previous state. In the traditional South African context it is believed that evildoers must be restored to the community, rather than be punished. Hence, restorative justice stems from Ubuntu – “…the humanity of others is inextricably linked with their own humanity. Key social values of Ubuntu include group solidarity, conformity, compassion, [and] respect for human dignity, humanistic orientation and collective unity.” Restorative justice is rooted in victim-offender mediation (VOM) which began in developed countries during the 1970s, but only gained popularity in South Africa from 1992. The first initiative of VOM was facilitated by the National Institute for Crime Prevention and Reintegration of Offenders (NICRO), a non-profit organisation involved in programmes focussed on crime prevention and reintegration of offenders after their release from prison. This project was first conducted in Cape Town (based on Howard Zehr’s model) – focussing on crime as a harm that needed to be resolved by looking at the victim and his or her needs for repairing this harm. The project started by NICRO was targeted at pre-trial and pre-sentence stages of the criminal procedure. It was reported that the prosecutors were hesitant to refer serious crimes. Therefore the referrals were mainly juvenile offenders. Despite this, NICRO now also focuses on adults and is still successful today. Following this there were several other programmes instituted, some which still exist today such as the Restorative Justice Centre in Pretoria.
The application of restorative justice in South African law
Most restorative justice projects are run by non-profit organisations, particularly with cases dealing with crimes of a less serious nature. These cases are often dealt with through diversion or non-custodial sentencing. Hence, these cases often go unreported and not much precedent exists with regard to this punishment theory. Further, there is no legislation available regarding this punishment theory, except in the context of child offenders. In the Child Justice Act 75 of 2008, one of aims of the Act...