RESTORATIVE JUSTICE AND CASES OF SERIOUS OFFENDING: A SOUTH AFRICAN AND CANADIAN PERSPECTIVE

Abstract

The exact meaning, place and role of “restorative justice” (hereinafter “RJ”) in criminal matters remain largely unclear. Often, RJ is reduced to a sentencing option, an alternative to retributive justice and an approach, which cannot co-exist alongside custodial sentences. This oversimplification of the concept of RJ seems to have trickled down to the decisions of courts. Notably, although over the years the use of RJ in criminal matters has grown in its stature and impact, with countries like Canada and South Africa constituting prime examples of the few embracing this system in criminal matters, a critical analysis of the jurisprudence of both countries reveals that its application to criminal matters is shrouded with ambiguity. Most of these courts have reduced RJ to a mere sentencing option, an option that cannot rest comfortably alongside custodial sentences and an alternative to retributive justice. Nowhere is this ambiguity more eminent than in cases of serious offending. Given that custodial sentences are often deemed relevant in cases of serious offending, when RJ is oversimplified, it is often excluded from the overall criminal justice framework, making it impossible for it to co-exist alongside a retributive system of justice. Put differently, the manner in which RJ is being conceptualised is having major implication for its role in the prosecution of cases of serious offending. This article analyses case law that grapples with these issues in Canada and South Africa and on the basis of this analysis, it is argued that for RJ to have a meaningful role, especially in cases of serious offending, it should be perceived as a guiding principle that provides a foundation in the overall criminal justice process rather than a mere sentencing option, an alternative and an approach totally against custodial sentences.