Discussions about the transformation of South Africa's justice system have focused almost exclusively on the need to increase the representation of black people and women in the judiciary.
Not much attention is given to the laws themselves. But there are encouraging signs that South Africa is beginning to rebalance its colonial approach to justice by incorporating elements of restorative justice.
What is restorative justice?
The emergence of the restorative justice philosophy in South Africa is a response to the need to change the country's retributive criminal justice system, based on Roman Dutch Law, in order to accommodate indigenous African legal practices. These practices are more participatory and reconciliatory.
Restorative justice requires that the offender assumes responsibility for the actual harm done and takes corrective action. The globally dominant retributive justice has punishment as its primary aim. Such punishment is considered sufficient compensation to the victim and society.
South Africa's Department of Justice defines restorative justice as:
... an approach to justice that aims to involve the parties to a dispute and others affected by the harm (victims, offenders, families) and a legal instrument that can be applied together with other policy and strategic instruments.
The idea is that community and customary courts apply restorative justice principles within the framework of the criminal justice system. Magistrate courts apply restorative justice processes in partnership with local communities to resolve less serious offences and promote restoration.
Justice Minister Michael Masutha sees it as part of a plan to increase public confidence in the criminal justice system.
Several important recent cases resulted in restorative justice outcomes. These include:
Former tennis star Bob Hewitt was last year sentenced to an effective six years in jail for raping two of his tennis students more than 30 years ago. The prison sentence was partially suspended on the condition that he pays R100,000 to campaigns against the abuse of women and children.
Although the African restorative justice practices of confession, asking for forgiveness and the whole family taking responsibility for the act and reconciliation were not present in this case, the compensation benefits the society and is thus a positive move towards restoration.
Simphiwe Hlophe was convicted in the Tembisa Magistrates Court of raping a woman. After a restorative justice facilitator testified in court that the victim's mother accepted the repeated apologies from Hlophe, the magistrate accepted an offer from the offender's family to pay R5000 as "a sign of humanity", in the spirit of a tradition that requires if a person wronged a family, they were made to pay a fine in cows. In view of the compensation, a five-year prison sentence was suspended.
In the case of the State vs Shilubane the accused was sentenced to jail for nine months for the theft of seven fowls. When reviewed, the sentence was set aside and replaced with a suspended sentence and the complainant was compensated for his loss.
In the case of the State vs Maluleke, a woman was convicted and sentenced to eight years' imprisonment for murder after she and her husband (who died before the end of the trial) killed an intruder. Three of the eight years were suspended on the condition the woman apologise to the victim's mother.
What outcomes are being achieved?
The question remains if cases like these achieve the desired outcome of restoration. Yes, the victim and the offender participated in the resolution of the consequences of the crime, and agreements were reached after a process and a certain way of restitution took place. But it remains uncertain that the reparation of the victim's dignity was achieved.
Some argue that it is also not in the interest of crime-ridden communities if criminals are allowed to buy themselves out of sentences. The theft of fowls is clearly a case where restoration can be achieved. But most people may be uncomfortable with convicted murderers and rapists paying their way out of jail. Also, in these cases, there were no known efforts to rehabilitate the offenders.
Restorative justice agreements should consider broader societal issues. It is important that perpetrators take responsibility for their actions, make reparations and work towards reconciliation.
The intent is to restore a feeling of safety and security, promote harmony, and restore dignity and respect to all those affected. The feeling that justice has been done according to a set of norms that a specific society values is very important in most contexts.
But important questions remain. Is it possible to apply restorative justice processes to heinous crimes or for repeat offenders? Should society not be protected against such people by removing them from society through incarceration?
Answers will probably differ from context to context. Not all societies and communities have the same norms that inform their concepts of safety, security and personhood.
People's perceptions of what is just and fair will always be informed by, among other things:
access to information;
physical conditions; and
Despite these misgivings, restorative justice can serve important crime prevention and social purposes. The prevention and deterrence of crime and violence should always be at the forefront of the quest for a peaceful and harmonious society.
In South Africa, there is a dire need to promote good relations among people. If restorative justice means promoting good relations, based on the dignity of the person and mutual respect, it might just contribute to a peaceful society.
Dries Velthuizen is a Senior Researcher with the Institute for Dispute Resolution in Africa (IDRA)