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Acta Criminologica 21(3) 2008
37
RESTORATIVE JUSTICE: A CONTEMPORARY SOUTH AFRICAN REVIEW
A Skelton
Faculty of Law
University of Pretoria
M Batley
Restorative Justice Centre
Pretoria
ABSTRACT
Restorative justice is a well understood concept. Internationally, its theory and practice
have been substantially documented, and it has withstood critical analysis. There has
been a movement amongst even those that would be expected to be its harshest critics,
just deserts theorists, to engage in a good faith attempt to reconcile the competing
paradigms. In South Africa, restorative justice has moved from the margins to take its
place as a subject of serious academic debate in criminal justice. It has also featured in a
promising jurisprudence that is emerging from the country’s superior courts. The article
explains how certain local developments in practice, as well as the Child Justice Bill,
promote the application of restorative justice across all stages of the criminal justice
system. Restorative justice and sentencing policy is explored against the South African
Law Reform Commission’s proposals for a sentencing framework. Rehabilitation is the
final issue tackled. Despite its loss of credibility in recent decades, rehabilitation as a
concept still looms large on the South African criminal justice landscape. Restorative
justice offers a different view on how to promote the aim of a crime-free life for the
offender, and South African criminal justice practitioners and researchers are urged to
engage in the discovery of realistic community centred models.
INTRODUCTION
An understanding of restorative justice has been quietly developing in South Africa over
the last fifteen years. The restorative justice movement has travelled some distance since
the early experiments with the concept by civil society organisations in the early 1990s
(Muntingh 1993). Endorsement of the concept in policy documents of government came
early in the Welfare White Paper (1996), the National Crime Prevention Strategy (1996),
and several reports issued by the South African Law Reform Commission. The
legislature has provided two legal definitions of restorative justice. Internationally there
has been a plethora of research and writing about restorative justice, which has subjected
not only the theory of restorative justice to robust analysis, but which has also amassed
impressive evidence of specific benefits of restorative justice when compared to the
mainstream criminal justice system. In South Africa, the debates have developed
gradually. Academia has grappled with the concept for a decade, and the 2007 edition of
the legal journal Acta Juridica was dedicated entirely to the subject. Less well known to
non-lawyers, but undoubtedly profound, is the development of a restorative justice
jurisprudence in reported judgments of South Africa’s superior courts.
Acta Criminologica 21(3) 2008
38
This article spells out all of these developments in response to a claim made in an article
published in this journal (Bezuidenhout, 2007) that there is no consensus about the
definition and meaning of restorative justice, that it has not been exposed to critical
analysis. In addition to explaining what restorative justice is, we also take some time to
talk about what it is not. It does not focus on forgiveness as one of its key objectives.
Bezuidenhout’s article examined restorative justice within the context of rehabilitation. In
the latter part of this article we take up that theme and we conclude that restorative justice
is likely to be a more effective catalyst than rehabilitation to create possibilities for a
crime-free life for the offender.
UNDERSTANDING RESTORATIVE JUSTICE
In his article “Restorative Justice with an Explicit Rehabilitative Ethos: Is this the
Resolve to Change Criminality?”, published in this journal in 2007, Bezuidenhout stated
that there is no consensus amongst scholars regarding the definition and scope of
restorative justice (2007:43). He claimed that those advocating restorative justice are
subjective, and implied that restorative justice theory has not been critically evaluated. In
our view, this is not a valid claim. There is now widespread agreement on a definition of
restorative justice – there is even a set of United Nations Basic Principles on the Use of
Restorative Justice Programmes in Criminal Matters (2002). The Basic Principles include
the following definition of a restorative process: “[A]ny process in which the victim and
the offender, and, where appropriate, any other individuals or community members
affected by a crime, participate together actively in the resolution of matters arising from
the crime, generally with the help of a facilitator. Restorative processes may include
mediation, conciliation, conferencing and sentencing circles.” (UN Basic Principles,
2002: article 2). The South African courts have begun to expound on their common
understanding of restorative justice, a matter to which we will return later in this article.
The South Africa legislature has twice defined restorative justice: the first time was in the
Probation Services Act no 116 of 1991 (as amended by Act 35 of 2002), where it was
defined as follows: “The promotion of reconciliation, restitution and responsibility
through the involvement of a child, and the child's parents, family members, victims and
the communities concerned.” The second time was in the Child Justice Bill (B 49B
2002), which was passed by the National Assembly on 25 June 2008. The definition of
restorative justice in this Bill is as follows:
“An approach to justice that aims to involve the child offender, the victim, the
families concerned and community members to collectively identify and address
harms, needs and obligations through accepting responsibility, making restitution,
taking measures to prevent a recurrence of the incident and promoting
reconciliation”.
Bezuidenhout claims that “[i]t appears that the key objective of restorative justice is
restoration and addressing harms after the victim has granted forgiveness” (2007: 43). It
should be noted that none of the definitions noted above say anything about forgiveness.
In fact, the leading restorative justice scholar Howard Zehr has pointed out that it may be
more important to state what restorative justice is not, in order to prevent bad practice
masquerading as restorative justice (2002). Restorative justice is not forgiveness, the
Acta Criminologica 21(3) 2008
39
theory does not require forgiveness, nor does a restorative justice process seek it.
Australian criminologist John Braithwaite has written convincingly about values for
restorative justice practice, which he has separated into three categories (Braithwaite
2003: 8-14). The first category he describes as “constraining values”, which are
fundamental procedural safeguards that take priority where any serious sanction is at risk.
They include non-domination as a fundamental value in restorative justice practice,
empowerment, honouring legally specific upper limits on sanctions, respectful listening,
and equal concern for stakeholders, accountability, appealability and respect for the
fundamental human rights specified in international instruments. A second category of
values proposed by Braithwaite, are “maximizing values”, meaning that they should be
promoted and encouraged. These values relate to healing and restoration. It includes
very basic kinds of restoration such as returning property, and more abstract ones such as
the restoration of dignity, compassion, social support and the prevention of future
injustice. The third group of values are described as “emergent values”. They are
remorse over injustice, apology, censure of the act, forgiveness of the person, and mercy.
Unlike the second category, participants should not be actively encouraged to bring these
values to the fore; they should simply be allowed to emerge. So although forgiveness
may, and sometimes does emerge in restorative justice process, it is neither a key value
nor an aim of restorative justice.
At the level of direct practice in South Africa, a network of civil society organisations has
developed a set of standards to guide the implementation of restorative justice
programmes and processes linked to the criminal justice system (Frank and Skelton,
2007). The standards were developed from a review of the international literature in the
field of restorative justice, and consultations with stakeholders in South Africa. The
completion of these standards once again testifies to the fact that the definition and scope
of restorative justice is clear.
RESTORATIVE JUSTICE AND CRITICAL ANALYSIS
The early years of restorative justice debates were marked by intense exchanges
highlighting the differences between the retributive and restorative justice approaches.
Former critics now claim to be seeking a way to reconcile the two approaches, a move
that culminated in the publication of a book by von Hirsch and others (von Hirsch et al
(eds), 2003). Braithwaite was persuaded to write a chapter for the book. He finds
himself at odds with many of the other contributors to the book, particularly on the issue
of whether restorative justice embraces retribution, and the question of whether
restorative justice includes punishment. He nevertheless finds some common ground:
what liberal modern retributivists (such as Ashworth and Duff, also contributors to the
book by von Hirsch et al (2003) - both mentioned in Bezuidenhout’s article (2007) have
in common with most restorative justice advocates is that they are all reductionists when
it comes to punishment. They would all wish to place upper constraints or limits on the
kinds of punishments that can be meted out for certain kinds of crimes, so that severe
punishments, such as the use of imprisonment, should only be used for serious crimes.
However, just deserts theory would also require the setting of lower limits, so that
Acta Criminologica 21(3) 2008
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proportionality can be maintained, whilst restorative justice theorists would not require
punishment, relying instead on the participants in the process to decide on the outcome
(Skelton, 2006).
With dyed-in-the-wool just deserts theorists engaging in a good faith exercise to find
synergy between their own views and those of restorative justice advocates, it is clear that
restorative justice has been engaged critically by those who one would expect to be its
harshest critics, and has stood up favourably to the analysis. Certainly the theories will
never be merged into one - the idea is that restorative justice is a different way of looking
at crime and justice – but restorative justice advocates have long since moved away from
crude simplifications of contrasting retributive justice and restorative justice (Zehr,
2002). The important issue is that restorative justice has taken its place alongside the
competing theories of approaches to crime and punishment: retributive, utilitarian,
rehabilitative and restitutive (Brunk, 2001). Large volumes of writing have been
dedicated to exploring its theoretical and practical anatomy. According to Van Ness and
Johnstone “[t]he rise of restorative justice has been accompanied by the development of a
large, diverse and increasingly sophisticated body of research and scholarship”
(2007:xxi). Interest in serious research about restorative justice has finally taken root in
South Africa, with the 2007 volume of the legal journal Acta Juridica being dedicated
entirely to scholarly articles on the topic of restorative justice.
Restorative justice has withstood critical analysis not only at the theoretical level, but also
at a practice level. Criminologists Lawrence Sherman and Heather Strang, both longtime
researchers on the effectiveness of restorative justice, have recently published a major
study called “Restorative Justice: The Evidence” (2007). They analyzed the results of 36
studies from Australia, New Zealand, the US, Canada and the UK, which all measured
the effectiveness of restorative justice practices by drawing direct comparisons with the
conventional criminal justice system. Using scientifically sound research methods,
Sherman and Strang concluded that restorative justice has resulted in substantially
reduced repeat offending for some offenders (but not all) and doubled the number of
offenders brought to justice as a result of diversion from the criminal justice system,
which in turn has reduced the costs of the criminal justice system. The study discovered
that restorative justice has reduced recidivism more than imprisonment (for adults) or as
well as imprisonment (for youths). Restorative justice was found to have reduced crime
victims’ post-traumatic stress symptoms and related costs and reduced crime victims’
desire for violent revenge against their offenders. It also provided both victims and
offenders with more satisfaction with justice than the criminal justice system. Sherman
and Strang conclude that the evidence on restorative justice is more extensive, and more
positive, than it has been for many other policies that have been rolled out nationally, and
they recommend that it be put to broader use.
SOUTH AFRICAN JURISPRUDENCE REGARDING RESTORATIVE JUSTICE
In South Africa, restorative justice has been slow to get underway in practice, but a study
conducted in 2006 showed that there is some restorative justice work conducted in all
provinces of the country (Skelton & Batley, 2006). The growth of restorative justice has
Acta Criminologica 21(3) 2008
41
not gone unnoticed by the judiciary. In October 2003 the Association of Regional Court
Magistrates of South Africa arranged a two day conference on restorative justice, at the
conclusion of which a number of resolutions endorsing the concept were taken (Bekker,
2004).
The South African jurisprudence on restorative justice is promising. The year 2008 has
seen the reporting of a number of decisions relating to restorative justice in the South
African Criminal Law Reports. Two of the judgments were penned some time ago, but
came to prominence through reference in subsequent judgments. The first such judgment
was S v Shilubane 2008 (1) SACR 295 (T) which dealt with the theft of seven fowls.
Notwithstanding the accused’s genuine remorse, he had been sentenced to nine months
imprisonment. On review, Bosielo J (with Shongwe J concurring) set aside the sentence
and replaced it with a suspended sentence. The court remarked that “in line with the new
philosophy on restorative justice, the complainant would have been more pleased to
receive compensation for his loss”. The court commented further that retributive justice
has failed to stem the rise of crime, and that more innovative solutions had to be sought
by the courts.
This lead was followed by Bertelsmann J in S v Maluleke 2008 (1) SACR (T). The
judgment arises from a case in which a woman was found guilty of murder in that she
and her husband (who died before the trial commenced) beat to death a young intruder
who had broken into their house. She was a destitute mother of four. The victim’s mother
was hurt by the fact that no-one from the offender’s family had come to their house to
apologise for the wrongdoing, and she expressed a desire for this type of interaction. The
sentenced imposed was 8 years imprisonment, suspended for 3 years on condition, inter
alia, that the offender should apologise to the victim’s family. Judge Bertelsmann’s
judgment concluded with the following words:
“Eventually, legislative intervention may be required to recognise aspects of
customary law – but this should not deter courts from investigating the possibility of
introducing exciting and vibrant potential alternative sentences into our criminal
justice system.”
Restorative justice has twice been referred to in recent cases judgment of the
Constitutional Court. The first was the case of Dikoko v Mokhatla 2006 (6) SA 235 (CC),
which referred approvingly to both Shilubane and Maluleke, which were at that time
unreported. The Dikoko case dealt interestly enough not with a criminal matter, but a civil
claim for damages arising from defamation. Whilst the majority court awarded a hefty
claim of financial damages, the two separate but concurring minority judgments by
Justices Mokgoro and Sachs, focused instead on a restorative justice approach, making
the point that dignity could not be restored through disproportionate punitive monetary
claims, and that apology would have been a more powerful tool, more in keeping with
African notions of ubuntu and our constitutional commitment to dignity. Sachs J stated
that the key elements of restorative justice have been identified as encounter, reparation,
reintegration and participation.
Acta Criminologica 21(3) 2008
42
The second case was S v M (Centre for Child Law Amicus Curiae) 2007 (12) BCLR 1312
(CC), which dealt with the duties of a sentencing court when sentencing a primary care-
giver of children. Sachs J, writing for the majority, characterised correctional supervision
as providing better opportunities for a restorative justice approach. He found that
restorative justice recognises that the community, rather than the criminal justice
agencies, is the prime site of crime control. He also spoke about the significance of
making repayments of defrauded money on a face-to-face basis, because “restorative
justice ideally requires looking the victim in the eye and acknowledging wrongdoing.”
(para 71).
In the case of S v Saayman 2008 (1) SACR 393 (E) restorative justice came in for some
careful examination regarding the concepts of “shaming” and the constitutional right to
dignity. In the commercial crimes court of Port Elizabeth, the court had pleaded guilty
and was convicted of the six counts of fraud amounting to a total value of R13 387,21.
The frauds committed by her led the black-listing by the Credit Bureau of certain of the
complainants (whose identities she had fraudulently used), thereby causing them
embarrassment and inconvenience.
In sentencing the accused the regional magistrate indicated that he wanted the sentence to
provide some measure of relief to the victims of the crime.
To a suspended sentence linked to correctional supervision, he added a further condition
that she should stand out in the open, to ask for forgiveness from the victims, by standing
in entrance to the commercial crimes court, under supervision of a police official. She
was required to stand there for fifteen minutes on a specified date, holding a placard
bearing an apology to victims. When an application for leave to appeal was brought
before the magistrate he explained that what the Court was attempting to achieve was “to
try and restore the relations between the parties by assisting the accused to tender an
apology in public to the complainants.” The questions that were central to the review
proceedings were whether the condition imposed by the magistrate accorded with
restorative justice principles and whether it passed constitutional muster. On both counts,
the Court found that the order, as creative and well-intentioned as it may have been, was
not consonant with restorative justice principles, and that it was unconstitutional on the
basis that it infringed the right to dignity. The court, with reference to Braithwaite
(1989), distinguished between “stigmatising shaming” and “reintegrative shaming”, and
found that the condition of sentence had the effect of stigmatising and of violating the
accused’s right to dignity.
This emerging jurisprudence proves beyond any doubt that restorative justice is no longer
an academic debate on the margins of South African society. It is a living issue in our
criminal justice system, and is being dealt with and developed by our courts.
PROMOTING RESTORATIVE JUSTICE AT ALL STAGES OF THE
CRIMINAL JUSTICE PROCESS
Hargovan (2008) has observed that both internationally and in South Africa, restorative
justice has been applied mainly in relation to child offenders, and in matters concerning
Acta Criminologica 21(3) 2008
43
petty offences. This general observation is correct, although there are some international
research findings regarding the use of restorative justice in serious offences (Umbreit et
al 2003, Gustafson 2004). Whilst restorative justice is undoubtedly valuable in the
context of youth crime and diversion, the focus on these areas appears to rest on an
underlying assumption that it has nothing to offer at other levels of the system, and that it
is only relevant to less serious cases. However, there is no reason why restorative justice
cannot be effectively used at the stages of pleadings, pre-sentence, sentence and post
sentence. Many references to restorative justice across the system can be found in
international literature (see for example Raye and Roberts (2007) and UN Handbook on
Restorative Justice Programmes 2006). Hargovan (2008) poses the question as to whether
restorative justice initiatives will remain confined to diversionary processes or whether
restorative justice will be used more broadly across the criminal justice system – even in
more serious crimes. She observes a recent trend in South Africa towards a “parallel but
inter-linked track” model, in which restorative justice is available alongside the
mainstream justice system, with various referral points. We now move on to a description
of how restorative justice is being utilised at different stages of the criminal justice
system. We suggest some points of connection on the “inter-linked” tracks, where a
restorative justice approach can be engaged.
Pre-trial stage
Under South African law, prosecutors have a discretion whether or not to prosecute in a
particular case. This discretionary power is the basis on which all pre-trial diversion
currently takes place. Current diversion practice is informal, and is regulated only by
prosecutorial guidelines. The Child Justice Bill ((B49-B of 2002) recently passed by the
National Assembly) will make diversion a central feature of the child justice system. The
Bill also specifically lists family group conferences and victim offender mediation as
diversion options. This is in addition to the wide range of life skills programmes that can
be utilised for developing the competencies of children.
The use of restorative justice at the pre-trial stage in South Africa is not limited to child
offenders. Increasingly, and particularly in the light of the National Prosecuting
Authority’s Strategy 2020, it is being used for adults. A research report by the NPA
(2008) details the numbers of cases and types of offences at three pilot sites in
Atteridgeville, Mitchell’s Plain, and Phoenix. In all the cases at these sites the following
procedure is followed. Initially, the prosecutor identifies a matter that can possibly be
resolved by means of a restorative justice process. He or she then informs both the
offender and the victim accordingly; the matter is postponed for a suitable period
(typically 6-8 weeks) and kept on the role for this period. It is typically less serious
offences that will be referred in this way. The matter is subsequently referred to a suitable
service provider (either a probation officer employed by the Department of Social
Development or a civil society organization) for further assessment. If, after initial
assessment the service provider is of the opinion that the matter is suitable for a
restorative justice process, preparation and facilitation takes place. Thereafter, a report is
tabled in court on the date to which the matter was postponed.
Acta Criminologica 21(3) 2008
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The process described above relates to pre-trial processes, where the restorative justice
intervention takes the place of prosecution. Although such matters require an
“acknowledgement of responsibility” on the part of the offender, no formal plea is
entered, the charge is withdrawn and there is no criminal record.
Restorative justice can also be applied where the prosecutor decides that the matter will
not be withdrawn, but the offender tenders a guilty plea. Under South African law, an
accused person who is legally represented and the prosecution may enter into a plea and
sentence agreement in terms of Section 105 A of Criminal Procedure Act, no 51 of 1977
(as amended). The prosecutor is obliged to consult with the victim of the crime, and
payment of restitution to the victim is specifically listed as a possible condition that can
be set. This is fully congruent with integrating a restorative approach into the
administration of justice. If the victim is amenable to the idea, a restorative justice
process could be held prior to the plea and sentence agreement, and the results thereof
can be recorded in the plea and sentence agreement. The advantages of disposing of cases
in this way at this stage refers to the direct participation of the victims (as opposed to
merely being consulted) without them having to testify in a trial. While the formal system
provides oversight, the time required for a full trial is saved, and this is an excellent
example of “inter-linked” tracks.
Pre-sentence and sentencing stage
This brings us to the next stage of the criminal justice system at which restorative justice
can be utilised. Once a person has been convicted, a magistrate is empowered to request
any information that will assist in the determination of a suitable sentence, as provided
for in section 274 of the Criminal Procedure Act. This is also the point at which a pre-
sentence report or other testimony can be arranged. The matter would be postponed for a
suitable period (typically 6 -8 weeks) and referred to a service provider. If a restorative
justice process is convened and the participants reach an agreement, the details of this can
be returned to the court as a set of recommendations. They could be set as conditions for
postponement or suspension of a sentence or of a caution or reprimand in terms of
Section 297 of the Criminal Procedure Act, 1977 as amended or as conditions of
correctional supervision (Section 276 (h)). The typical outcomes of a family group
conference or victim offender conference include: an apology, restitution, performance of
service for the victim or community service for the benefit of the community, referral of
the offender to some form of assistance programme to address some of his or her needs.
In the Child Justice Bill, family group conferences and victim offender mediation have
also been specifically listed as sentence options. The cases that are referred for a
restorative justice process at this stage would typically be more serious that those referred
at a pre-trial stage. A major benefit of using restorative justice processes at this stage is
that all the parties concerned participate in generating outcomes to the incident. If these
are accepted and endorsed by the court this is likely to raise the credibility of the system
in the eyes of the participants. It is also more likely to be regarded as a satisfactory
outcome than a sentence simply imposed by the court without the participation of any of
the parties.
Acta Criminologica 21(3) 2008
45
Post-sentence stage
A restorative justice process can be convened during the serving of a sentence of
imprisonment or correctional supervision. In such cases, the process would not have any
impact on the sentence, although it may affect a decision about parole. The emphasis is
more likely to be on answering questions a victim may have with a view to assisting in
the process of healing and closure than on outcomes such as restitution or service to the
victim. Perceived this way, even individuals affected by the most serious offences can
benefit from restorative justice processes. While still at an embryonic stage, there are
some promising signs of development in South Africa. The Department of Correctional
Services has adopted restorative justice as an approach in 2001. A specific policy on
restorative justice was approved in 2007 and recently discussions have taken place with
potential service providers to increase the level of implementation. There has also been
some micro research comparing practice at this level between South Africa and North
America (Sharpe & Lai Thom, 2007)
RESTORATIVE JUSTICE AND SENTENCING POLICY
The above outline has described practical engagement points for restorative justice in a
model which is parallel to and interlinked with the mainstream criminal justice system. In
the area of sentencing policy, restorative justice as an approach to sentencing has gained
some recognition, and may be set to play a more central role. The South African Law
Reform Commission (hereafter SALRC) issued a Discussion Paper on A New Sentencing
Framework in the year 2000. In the paper, a new framework is advocated that will give
explicit attention to restitution and compensation for victims of crime. These measures
were to entrench the principles of restorative justice in the South African criminal justice
process (South African Law Reform Commission, 2000: xxii-xxiii).
However, since the SALRC published its findings in 2000, there has been no move to
implement any of its recommendations. A recent study of the SALRC proposals for a
new sentencing framework by Terblanche (2008:11-12) summarises the goals and
principles of sentencing, as stated in the SALRC’s proposed Bill. The purpose of
sentencing is declared as being ‘to punish convicted offenders for the offences of which
they have been convicted’. Sentences will have to be proportionate to the seriousness of
the offence, not in the abstract but relative to other offences. Proportionality is the central
requirement; all further principles are subservient to it. The seriousness of the offence is
further refined in the following terms: The seriousness of the offence committed is
determined by the degree of harmfulness or risked harmfulness of the offence and the
degree of culpability of the offender for the offence committed. In place of the current
four ‘purposes of sentencing’, (that is, deterrence, prevention, reformation or
rehabilitation and retribution) the SALRC proposed that every sentencer should attempt
to find an optimal combination of restoring the rights of the victim, the protection of
society and a crime-free life for the offender. Terblanche goes on to point out that the
statement is at least as notable for what it does not state as for what it does state.
Deterrence and rehabilitation are not included in the purposes of sentencing.
Acta Criminologica 21(3) 2008
46
In support of the departure from deterrence as a central principle, Terblanche (2008)
quotes research to substantiate the fact that apart from the general deterrent effect of
having a criminal justice system, there is no evidence to show that sentences have a
deterrent effect. Similarly, he substantiates the position that punishment does not change
behaviour. Terblanche (2008) recommends that the SALRC’s proposal that every
sentencer should attempt to find an optimal combination of the three effects of the
sentence, namely restorative justice, the protection of society and a crime-free life for the
offender, be regarded as sound and should be implemented without delay. However, he is
of the opinion that there is room for more specific guidance of the sentencers’ discretion.
Although one finds the same limited understanding of the usefulness of restorative justice
in more serious cases that was referred to earlier in Terblanche’s (2008) discussion about
the optimal combination of the three effects, he has clarified and reinforced the
recommendations of the SALRC. It is to be hoped that this will give new impetus to
sentencing reform in South Africa.
The concepts of an optimal combination of restorative justice, the protection of society
and a crime-free life for the offender suggest an innovative approach to address some of
the shortcomings of the traditional modes of thinking. At the very least, it provides a
platform for increased implementation of restorative thinking and processes. It is also an
indication of the extent to which restorative justice is influencing leading thinkers in the
field of sentencing in South Africa. Furthermore, implementation of the SALRC’s
recommendation in this regard would go a long way to address some of the problems the
sentencing system is facing, namely “that imaginative South African restorative
alternatives are not being provided for offenders that are being sent to prison for less
serious offences and that sufficient attention is not being paid to the concerns of victims
of crime”. (South African Law Reform Commission, 2000: xxix).
We now turn to an examination of rehabilitation, and pick up on the themes introduced
by Bezuidenhout in his 2007 article where he poses the question whether restorative
justice with an explicit rehabilitative ethos is the resolve to change criminality.
RESTORATIVE JUSTICE AND REHABILITATION
Bezuidenhout (2007) is critical of the impact restorative justice processes have on
rehabilitation and regards restorative justice activists as being far too idealistic in their
approach to rehabilitation, although he does not detail or substantiate this. According to
rehabilitation advocates Cullen and Gilbert (1982:170), “[t]he most devastating blow to
the viability of criminal justice rehabilitation was delivered in 1974 by Robert
Martinson.” A study by Martinson of a range of rehabilitation programmes resulted in
the conclusion that “nothing works”. Martinson’s article is famously linked to the demise
of the rehabilitative approach, and to the renaissance of the just deserts movement.
Despite the loss of credibility in rehabilitation due to this article, and the ensuing
“nothing works” debate, the concept of rehabilitation refuses to disappear. In South
Africa it remains a central feature in criminal justice. Furthermore, South Africa’s
Department of Correctional Services states clearly in its White Paper (2005:3) that
“rehabilitation is central to all our activities”. The dream of offenders mending their ways
Acta Criminologica 21(3) 2008
47
remains alive despite having been broken repeatedly. Cilliers and Smit (2007) for
example, refer to the overcrowding of South Africa’s prisons and conclude that although
statistical analysis of the recidivism rate in South Africa could not be found a study on
prison health care during 2002 estimated that the reoffending rate after release could be
as high as 94%.
Does restorative justice have anything to offer this depressingly bleak outlook? First, a
consideration of terms is essential. As Cilliers and Smit (2007) point out, the words
rehabilitation, rehabilitative, rehabilitate and rehabilitated appear in total 250 times in the
White Paper. The word “treatment” is also often found in the literature - see for example
Bazemore and Bell (2004): “What is the appropriate relationship between restorative
justice and treatment?”). Muntingh (2001) uses the word “reintegration”, drawing on the
reintegration theory put forward by Reitan. The terms “rehabilitate” and “treat” are based
on a medical model, suggesting that offenders have a certain “illness” that needs to be
cured. Brunk (2001) is highly critical of a therapeutic approach to punishment as it denies
the need, even the possibility, of taking personal responsibility for one’s actions.
The rehabilitation approach, whilst it moved away from a focus on punishment, also had
its limitations in theory and in practice. Johnstone (2002:94) makes the point that “[j]ust
as most restorative justice advocates want to distinguish restorative justice from
retributive justice, many insist on distinguishing it sharply from the therapeutic response
to offenders which was favoured by progressive opinion until the early 1970s, when faith
in therapy began to wane”. The problems stem from the departure point of viewing the
offender less as a moral agent who can make choices, and more as a person who needs to
be helped through a therapeutic model of rehabilitation. This is seen as problematic
because it “robs” the offender of his or her essential morality, it has not succeeded in
rehabilitating the majority of offenders. Furthermore, like the retributive and utilitarian
approaches it focuses almost entirely on the offender, with little concern being paid to the
victim. This offender focus is something that a restorative justice approach would
eschew, as it always aims to place victims at the core of the process.
Restorative justice is both backward-looking, in that it includes dealing with the
“aftermath of the offence”, and forward-looking, in that it is a process that looks at the
implications for the future. This introduces a crime prevention element in that an effort is
made to identify how future incidents may be avoided. The standard criminal justice
response is rarely forward-looking. It generally aims to incapacitate the offender as a
strategy to avoid future crime – chiefly through imprisonment. Alternatively, general
deterrence in the criminal justice system aims to prevent crime through instilling fear in
others unconnected with the crime, hoping that by dealing harshly with one offender, a
lesson is learned by others that will cause them to avoid committing crimes. The fresh
approach presented by a restorative justice process is that those with a stake in the crime
must look at implications of that crime for the future, meaning that those who are
personally and directly involved can formulate targeted strategies to avoid further
incidents (Skelton, 2007).
Acta Criminologica 21(3) 2008
48
The White Paper on Corrections in South Africa (2005) provides a vision for viewing
correction as a societal responsibility requiring the engagement of all social institutions
and individuals (starting within the family and educational, religious, sport and cultural
institutions), and a range of government departments. Reconciliation of the offender with
the community is listed as a key objective, and the principles of restoration are stated as a
correctional management objective.
This vision resonates well with the various writings of Bazemore and others. Bazemore
(1999: 155–184) refers to the concept of “relational rehabilitation”. He criticizes
treatment programmes that are insular and one-dimensional, and makes a plea for them to
nurture relationships. He advocates for the use of “sanctioning needs” (imposing
constructive consequences, setting limits and reparations) as well taking public safety
into account. Taking this thinking further, Bazemore and Bell (2004) have developed a
restorative model of rehabilitation. They concur with the view of Brunk that it is difficult
to reconcile the “strengths-based” assumptions of a restorative approach with a “medical
model” perspective that views offenders primarily in terms of deficits and “thinking
errors”. A restorative model of rehabilitation would have the following features: A
collective approach to offender reintegration that focuses on building or strengthening
relationships damaged by crime, or on building new, healthy relationships; a naturalistic
focus that does not always assume the necessity of formal intervention; an organic
process of informal support and social control that emphasises the community role in
offender transformation and increased reliance on the role of citizens as “natural helpers”;
and when specifically needed, professional treatment would be utilised.
Bazemore and Bell (2004:129) conclude that “a blend of restorative justice and effective
treatment principles builds on the assets of offender, victim and community by
broadening the rehabilitative context to include victim and community, emphasizing the
non-punitive accountability for harms in a way that reinforces reciprocity in human
relationships, and finally by connecting the offenders with informal supports and
controls.”
From the perspective of the White Paper on Corrections as well as the above “restorative
view of rehabilitation”, we should broaden our view of rehabilitation to include all efforts
prior to imprisonment, such as the range of life skills programmes that are available to
children in trouble with the law at a pre-trial and pre-sentence stage. It is submitted that
this view of restorative justice and rehabilitation is particularly apposite for South Africa
at the present time. Restorative justice advocates do not ignore the importance of a
therapeutic and rehabilitative approach, but they do not view these as the central or most
important aims of a justice process, especially as they are entirely offender focussed.
Restorative justice emphasises the harm done to the victim and the accountability of the
offender for repairing that harm. Thus the offender is held responsible, and the aim is to
restore him to the status of a moral being who can make and act on choices, although he
or she may need assistance to do so.
Apart from its doubtful record, a highly professionalised approach to rehabilitation is
entirely unfeasible, given our current crime levels and scarce professional human
Acta Criminologica 21(3) 2008
49
resources. Furthermore, the collective nature of South African society as opposed to the
highly individualised nature of Western societies, suggests that restorative justice is a
more appropriate approach. We should aim to understand how a restorative justice
approach can be a catalyst to create possibilities for a crime-free life for the offender, and
by doing so create a safer environment for all. The prospects of this appear to lie in the
way that restorative justice changes dynamics in relationships, and creates space in the
community for offenders to connect with opportunities. This has multiple implications for
the development of both restorative justice and rehabilitation in South Africa, as well as
the research agendas attached to each. Researchers need to turn their attention to assisting
practitioners and policy makers discover what rehabilitative programmes work under
what circumstances and what the exact relationship is between these programmes and
restorative justice processes.
CONCLUSION
Restorative justice has emerged clearly in South African writing, practice and
jurisprudence. It has done so against a well-documented backdrop of international
experience and analysis of the concept. Restorative justice is not vague, nor is it based on
the ideas of apology and forgiveness, although these may well up in restorative justice
processes. The advocates of restorative justice are not unrealistic, nor are they nervous
about debating its merits or demerits with critics. Restorative justice is here to stay. The
theory has stood up to criticism, and has even been engaged by its critics in a charitable
exchange of attempts to find synergy between restorative justice and more mainstream
criminal justice approaches. Restorative justice does promote a new way of doing justice.
It should not be understood as a “programme”, nor as always confined to be a diversion
from or an alternative to the criminal justice system. This discussion has demonstrated
how restorative justice can be effectively utilised at all stages of the system, sometimes as
an alternative to the criminal justice system, and sometimes as a useful technique within
or alongside such system. With regard to sentencing, restorative justice offers new
insights that have already received recognition at the highest level of South African
courts.
Lastly, the discussion on restorative justice and rehabilitation demonstrates that apart
from the general loss of faith in the effectiveness of rehabilitation, it fails to capture what
can occur in a restorative justice process. Rehabilitation is offender focused, but it sends a
confused message regarding accountability. Restorative justice is clear on this: the victim
is at the centre of the process, and the offender must be held accountable. It is accepted
that the offenders will sometimes need assistance to take responsibility, and that
professional therapeutic approaches will play a role in such cases. Restorative justice is
both backward looking (in that it seeks to uncover the cause of the conflict and find
solutions) and forward looking (as it often includes plans to prevent re-offending). In this
way it creates social space in which the offender may find opportunities to live a crime-
free life in the future.
Acta Criminologica 21(3) 2008
50
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Case References
S v Rabie 1975 (4) SA 855 (A)
Dikoko v Mokhatla 2006 (6) SA 235 (CC)
S v M (Centre for Child Law Amicus Curiae 2007 (12) BCLR 1312 (CC)
S v Saayman 2008 (1) SACR 393 (E)
S v Shilubane 2008 (1) SACR 295 (T)
S v Maluleke 2008 (1) SACR (T)
