Why RJ?

Since the early 1970s there has been growing dissatisfaction in many countries with the criminal justice system, both in the way it is conceptualised and in the way it functions. 
The various streams within this comprehensive movement have included the restitution movement, the victims’ rights and support movement, the prison abolition movement (see Daniel Van Ness, ‘An Overview of Restorative Justice Around the World’, Paper presented at Eleventh United Nations Congress on Crime Prevention and Criminal Justice, Bangkok, Thailand, 18–25 April 2005); and more recently the therapeutic jurisprudence movement (Annette Van der Merwe, ‘Therapeutic jurisprudence: judicial officers and the victim’s welfare’ – S v M 2007 (2) SACR 60 (W) pp 98–106. At http://137.215.9.22/bitstream/handle/2263/15710/VanDerMerwe_Therapeutic%282010%29.pdf?sequence=1


Specific concerns that have been expressed include:

  • The fact that criminal proceedings tend to exclude victims, despite the fact that they are the very people most affected by the crime incident; 
  • The inadequacies in the conceptual foundations or practices of criminal justice; 
  • The recognition that imprisonment causes suffering and debilitation; 
  • The inadequacies of retribution alone as a governing theory; and
  • The appropriateness of making offenders accountable to their victims. 

Some feminist scholars have argued that societal responses to crime should reflect values such as harmony and felicity rather than those of control and punishment (Daniel Van Ness and Karen Strong, Restoring Justice, Cincinnati: Anderson Publishing Company, 2002). Annette van der Merwe quotes Susan Daicoff to the effect that all these streams have ‘two core common features’: 

They all explicitly seek to:

  • Optimise human well-being in legal matters, whether that well-being is defined as psychological functioning, harmony, health, reconciliation or moral growth; and
  • Focus on more than legal rights, so they include the individual’s values, beliefs, morals, ethics, needs, resources, goals, relationships, communities, psychological state of mind, and other concerns in analysis of how to approach the legal matter at hand (Van der Merwe, ‘Therapeutic jurisprudence’, quoting Susan Daicoff, ‘Growing Pains: The integration vs. specialization question for therapeutic jurisprudence and other comprehensive law approaches’, 30 Thomas Jefferson Law Review 551, 2008). 

 

Restorative justice is a very specific stream within this comprehensive movement, and has developed in such a way that it is not limited to criminal justice matters (Gerry Johnstone and Daniel Van Ness (eds), Handbook of Restorative Justice, US and Canada: Willan Publishing, 2007, p 15). It represents an attempt to rethink, fundamentally, our concept of what justice is, to view matters of crime and justice through a new lens, in many ways by returning to earlier understandings. For that reason,
it is frequently described as a rediscovery rather than a discovery (AM Skelton, ‘The Influence of the Theory and Practice of Restorative Justice in South Africa with Special Reference to Child Justice’, unpublished LLD thesis, 2005, p 4).

Status of RJ in SA

 

South Africa has embraced Restorative Justice in a number of significant ways.

The Truth and Reconciliation Commission is regarded as a pioneering example of applying the concept at a macro political level.
The concept has been defined in at least two pieces of legislation (The Probation Services Act, 1991 and the Child Justice Act, 2008); a National Policy Framework has been drafted and several superior court judgements have established a significant jurisprudence.
The matters in which superior courts have ruled on restorative justice are: North Gauteng:

  • S v Shilubane 2008 (1) SACR 295 (T), [2005 [JOL 15671(T)]
  • S v Maluleke 2008 (1) SACR 49 (T)
  • S v Thabethe 2009 (2) SACR 62 (T) Eastern Cape:
  • S v Saayman 2008 (1) SACR 393 (E) Supreme Court of Appeal
  • S v Thabethe 619/10 Constitutional Court: • Dikoko v Mokhatla 2006 (6) SA 235 (CC)
  • S v M (Centre for Child Law Amicus Curiae) 2007 (12) BCLR 1312 (CC);[2009(2) SACR 477 (CC)]
  • Port Elizabeth Municipality v Various Occupiers 2005 (1) SA 217 (CC)
  • Le Roux vs Dey CCT 45/10 [2011] ZACC 4

 

Furthermore, the Child Justice Act, 2008, in addition to defining the concept, lists as one of its aims, ‘to expand and entrench the principles of restorative justice in the criminal justice system for children who are in conflict with the law’.

  • It has then gone on to develop a well-articulated system for diverting a range of cases, from minor to serious, seeking to make this a central feature. Detailed provision is made for therapeutic and didactic programmes as well as victim offender mediation at both a pre-trial and pre-sentence level.

What is RESTORATIVE JUSTICE?

The easiest way to understand Restorative Justice is represented in the following graphic illustration of ‘The Justice Flower’ (Zehr, H. 2002. The little book of restorative justice. Intercourse, Ill: Illinois Good Books, p 34):

Justice is regarded as being primarily about making things right. It seeks to involve everyone who has an interest in the resolution of an incident, often through some form of encounter, and to reintegrate everyone who has been affected into the community.

What is Restorative Justice Infographic 700x814px