Mar 18, 2019
Reconciliation vs. retribution
Globally, conventional criminal justice systems, based on punishing people for their crimes through incarceration and instilling fear of imprisonment as a deterrent, seem to have limited success. Prisons are overcrowded and rehabilitation is largely failing. Instead, restorative justice methodology, with its focus on resolving crimes by holding offenders accountable for their actions, is gaining ground.
Restorative justice supporters claim that the promotion of healing, restitution and rehabilitation of offenders will prevent future offences. This is because revenge does not help victims make sense of or restore their losses. It doesn’t answer questions or provide closure. Restorative justice falls within the ambit of alternative dispute resolution (ADR) and is a process of mediated dialogues. The term was first coined by Albert Eglash, a psychologist working with prisoners in the 1960s.
Alternative Dispute Resolution is rooted in South African customary law
Restorative justice and ADR have always been an integral part of customary law in South Africa. The Truth and Reconciliation Commission (TRC) is a good example of restorative justice. The TRC was established to deal with apartheid crimes in a participative and reconciliatory manner to promote healing of families, communities and the country. The Commission for Conciliation, Mediation and Arbitration (CCMA), which tackles labour disputes, is another example.
ADR and restorative justice – is there a difference?
Although negotiation, mediation and arbitration are components of both ADR and restorative justice, there is an important distinction. ADR involves conflict resolution and compromise assessment with the help of an impartial mediator. In ADR the parties agree on the terms of the settlement themselves. By contrast, restorative justice sets out to address the harm done once an offender has admitted to a crime and is willing to take responsibility for it. It does not aim to resolve a dispute.
In each case both parties are directly involved and are engaged in decision making, compared with conventional criminal processes, which regard the victim and offender as passive opponents, with key decisions taken by judges and lawyers.
Young offenders (under 18) may be offered diversion rather than restorative justice.
Advantages and application of restorative justice
Restorative justice functions within the framework of the criminal justice system. It is often seen as a way to deal with petty or moderate crimes, but can be used in criminal cases, taking into account the severity of the offence.
ADR mechanisms have become increasingly popular in South Africa: ADR is cheaper, quicker, more efficient and less stressful than going to court. It is informal and voluntary and can happen at any stage before or during civil proceedings as long as judgement has not yet been passed. The process also gives victims and communities a voice and can therefore be a more empowering experience.
Let the punishment fit the crime
The State vs Shilubane, 2005 was a significant victory for the principles of restorative justice. The accused, a 35-year-old first-time offender, stole and cooked seven fowls worth R216.16. He pleaded guilty and despite showing “genuine remorse” was sentenced to nine months in prison. On review, the sentence was deemed “disturbingly inappropriate”with Judge Bosielo stating that the “punishment should fit the criminal as well as the crime, be fair to the accused and to society, and be blended with a measure of mercy.”
Although it requires a significant mind shift on the part of the legal fraternity, victims and offenders, the positive outcomes of restorative justice are heartening, and the process has done much to build relationships in South Africa.
A key argument in favour of restorative justice is that participating offenders are less likely to commit further offences, compared with those who are subject to conventional justice interventions (see “Restorative Justice: The Evidence”, by Lawrence Sherman and Heather Strang).
The solution to prison overcrowding?
Retributive justice and harsh sentences are failing to stem the ever-growing crime rate in South Africa. Restorative justice, with its emphasis on reconciliation over retribution, has much to recommend it, beyond reducing the seemingly insurmountable backlog in the South African courts. This is not to suggest that serious crimes should go unpunished or untried. Clearly, the merits of ADR/restorative justice must be carefully considered on a case‑by‑case basis, but it may be a viable alternative to a custodial sentence for less serious crimes or where the offender does not pose a danger to society.
The punishment should still fit the crime.
We can help
Cape Town Bail Attorneys, SD Law & Associates Inc. is a Cape Town law firm of Cape Town Bail Attorneys. We’ll fight for you and protect your rights. If you need advice on alternative dispute resolution or independent mediation services or help with any aspect of criminal law or bail, call Simon on 086 099 5146 or email email@example.com