Restorative justice is a fairly new approach to realising justice and although it is seen by some as a radical change in the way that offences should be handled, other authors indicate that the roots of this approach are found in many traditional and indigenous legal systems. Restorative justice differs from the accusatory penal systems that are used especially in Western societies. It focuses not on retribution, but rather on the healing of the damage suffered by the victims through holding the offender accountable and by restoring the humanity of all parties involved. Restorative justice is applied in many international jurisdictions and fields, ranging from less serious and juvenile offences to serious offences such as rape, murder and genocide. In South Africa the courts have applied restorative justice principles a number of times, although the reception of the approach has been described as "somewhat lukewarm" and initially "at a slow pace" by the Supreme Court of Appeal.
One area where the application of restorative justice is, however, still shrouded in controversy, both internationally and in South Africa, is that of sexual offences. South African courts have in at least two reported cases dealt with the application of restorative justice in cases of sexual offences. In S v Thabethe the Gauteng high court applied the principles of restorative justice in a case concerning the rape of a minor girl. In S v Seedat it was seemingly applied to the sentence where the victim was in her fifties. However, in both instances the Supreme Court of Appeal did not support the rulings of the trial courts.
The purpose of this article is to consider whether it is possible and justified to apply restorative justice in cases of sexual offences. The article begins with a discussion of the rulings in Thabethe and Seedat, both in the trial courts and in the Supreme Court of Appeal. After that the focus shifts to international practice, referring to jurisdictions and specific instances where restorative justice has already been applied to sexual offences, and opinions supporting its application.
In Thabethe the court a quo ruled that in the particular circumstances of the case, a non-custodial sentence based on the principles of restorative justice would be fair and just. The court made this ruling taking into account a number of facts, among others that the parties underwent victim-offender mediation. On appeal the Supreme Court of Appeal did not, however, share the trial court's views. The court felt "obliged to caution seriously against the use of restorative justice as a sentence for serious offences which evoke profound feelings of outrage and revulsion amongst law-abiding and right-thinking members of society". It ruled that it should not have been applied to the facts even though it quoted with approval parts of the judgment in the Mkhize case where the Supreme Court of Appeal ruled, inter alia, that victims should be empowered. The non-custodial sentence was replaced by a sentence of ten years' imprisonment, effectively negating the wishes of the victim and leaving the family without a breadwinner.
Unlike Thabethe, where there were clear signs of the application of restorative justice principles, the only application in Seedat was in the compensation order that formed part of the sentence in the High Court. The accused pleaded not guilty in the lower court but was found guilty and sentenced to seven years' imprisonment. On appeal to the High Court the ruling was confirmed but the sentence was changed. The court found that the lower court should have taken restorative justice into consideration, seeing that the victim had, during the sentencing phase, requested that the accused should rather compensate her. The court therefore suspended sentencing for a period of five years subject to the payment of an amount of R100 000 to the victim. On appeal to the Supreme Court of Appeal the competency and validity of the sentence was attacked in view of the provisions of the Criminal Procedure Act. Of importance for this discussion, however, is the court's view on restorative justice. The court found that the wishes of the victim are not the only factor to be taken into account and that it must send a clear message that rape will not be tolerated. The court further ruled that although the object of sentencing "is not to satisfy public opinion, it needs to serve the public interest". The accused was sentenced to four years' imprisonment.
It is argued that the effect of both judgments is that the victim is reduced to just one of the factors to be taken into account during sentencing, seeing that in both cases the court found that other considerations were more important than the victim's views.
The focus then shifts to the question whether the Supreme Court of Appeal could have come to another ruling with respect to restorative justice and sexual offences. To answer this question, reference is made to international practice and views. Restorative justice is applied widely and in different jurisdictions. Studies indicate that restorative justice holds meaningful advantages for victims with regard to justice, accountability, satisfaction, remorse, forgiveness and emotional well-being. It is also utilised in cases of sexual offences. In New Zealand restorative justice has been applied successfully in both youth courts and courts for adult offenders. The Restore project endeavours to facilitate the healing of victims through restorative practices. An Australian study which covered nearly 400 cases of sexual offences indicated that restorative processes were less victimising, the role players were more satisfied with the outcomes and the recidivism rate was lower. With regard to the problem of the victim's wishes versus public opinion the Centre for Innovative Justice suggests that a binary test should be used. First it should be objectively decided whether a matter is eligible and thereafter more subjectively whether the matter is suitable for restorative processes.
Turning to academic opinions, the research of Keenan and Zinsstag and the practice guide on restorative justice by Mercer and others are discussed. Keenan and Zinsstag refer to numerous international articles and research on restorative justice in cases of sexual offences. They come to the conclusion that due to the nature of sexual offences, restorative justice is a better alternative for obtaining justice. They indicate that restorative justice does not necessarily entail a court process and that different restorative processes can be utilised, depending on the nature of the case. They conclude that the time is ripe for restorative processes to be developed in all jurisdictions for sexual offences.
In their practice guide Mercer and others discuss the application of restorative justice in sexual offence cases in detail, referring to the reasons why it should be applied and warning that restorative justice is not a "quick fix" and that practitioners dealing with sexual offences should possess specialised knowledge.
The discussion also refers to a sense of discomfort with the current legal system and the experiences of child victims to support the view that restorative justice should be applied to sexual offences. Reference is also made to the South African Child Justice Act, which sanctions the use of restorative justice processes in cases of child offenders.
Returning to the two Supreme Court of Appeal judgments in Thabethe and Seedat it is argued that in both instances the court was correct in indicating that sexual offences are serious offences. It was also correct in holding the view that restorative justice processes should not be applied in all matters. It is, however, submitted that the court was not correct in reducing restorative justice to a mere sentencing option. Restorative justice is a particular way in which to obtain justice and can be utilised on its own or in support of existing penal systems. In both cases the court also did not attach the necessary importance to the views of the victim, thereby negating the principle that the victim should be empowered. Had the court applied restorative principles to the Thabethe case it should have held that there were enough grounds to rule on the matter through a restorative justice lens. In Seedat, on the other hand, the court should have found that, as the offender did not accept responsibility for his actions, restorative justice could never have been applied.
The discussion concludes that restorative justice processes should be used, albeit with the necessary caution in cases of sexual offences, conceding that training and a change of perspective are still necessary.