Status of Restorative Justice 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.
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