RESTORATIVE OR RISKY? Victims and offenders of gender-based violence voice their experiences of victim offender mediations by the Restorative Justice Centre

In the context of the national pandemic of GBV and specifically IPV in South Africa there is outrage at the perceived inadequate response by the criminal justice system. At the same time, researchers have cautioned that we need to take a more evidence-based approach that includes a restorative justice approach. The RJC has conducted victim offender mediation(VOM) in situations of GBV and IPV for many years. This aim of this report was to provide qualitative feedback on the implementation and effectiveness of victim of VOMs for incidents of GBV conducted by the RJC in 2021. Although the sample is small, feedback from both the victims and offenders who participated indicate that the VOM’s had a positive impact on most of the victims who communicated that it gave them a voice and empowered them. The recommendations listed in the report are being addressed in the training of our staff.

RJC Papers

The application of restorative justice in various contexts

In a number of countries, restorative justice is increasingly defined as moving from a social service to a movement. We are convinced that restorative justice can add value to the following sectors:


The status of restorative justice in South Africa

South Africa has embraced Restorative Justice in a number of significant ways.

The Truth and Reconciliation Commission is regarded as a pioneering example of applying the concept at a macro political level.
The concept has been defined in at least two pieces of legislation (The Probation Services Act, 1991 and the Child Justice Act, 2008); a National Policy Framework has been drafted and several superior court judgements have established a significant jurisprudence.
The matters in which superior courts have ruled on restorative justice are: North Gauteng:

  • S v Shilubane 2008 (1) SACR 295 (T), [2005 [JOL 15671(T)]
  • S v Maluleke 2008 (1) SACR 49 (T)
  • S v Thabethe 2009 (2) SACR 62 (T) Eastern Cape:
  • S v Saayman 2008 (1) SACR 393 (E) Supreme Court of Appeal
  • S v Thabethe 619/10 Constitutional Court: • Dikoko v Mokhatla 2006 (6) SA 235 (CC)
  • S v M (Centre for Child Law Amicus Curiae) 2007 (12) BCLR 1312 (CC);[2009(2) SACR 477 (CC)]
  • Port Elizabeth Municipality v Various Occupiers 2005 (1) SA 217 (CC)
  • Le Roux vs Dey CCT 45/10 [2011] ZACC 4

Furthermore, the Child Justice Act, 2008, in addition to defining the concept, lists as one of its aims, ‘To expand and entrench the principles of restorative justice in the criminal justice system for children who are in conflict with the law’. The Act goes on to develop a well-articulated system for diverting a range of cases, from minor to serious, seeking to make this a central feature. Detailed provision is made for therapeutic and didactic programmes as well as victim offender mediation at both a pre-trial and pre-sentence level. Additional policies to support this have been developed by the Departments of Justice and Social Development. The development of similar policies for adults in in process.

Despite this very positive policy environment, the level of actual implementation of RESTORATIVE JUSTICE is currently lower than it was 10 years ago.

This situation calls for new levels of collaboration and strategic leadership at all levels by everyone who believes in the value of RESTORATIVE JUSTICE. The RJC is calling for:

  • Finalization of the National Policy Framework on Restorative Justice by the Department of Justice
  • Development of strategy and implementation plan to ensure systematic implementation supported at the highest levels
  • Financial resourcing of the plan

The case for restorative justice

Since the early 1970s there has been growing dissatisfaction in many countries with the criminal justice system, both in the way it is conceptualised and in the way it functions.

The various streams within this comprehensive movement have included the restitution movement, the victims’ rights and support movement, the prison abolition movement (see Daniel Van Ness, ‘An Overview of Restorative Justice Around the World’, Paper presented at Eleventh United Nations Congress on Crime Prevention and Criminal Justice, Bangkok, Thailand, 18–25 April 2005); and more recently the therapeutic jurisprudence movement (Annette Van der Merwe, ‘Therapeutic jurisprudence: judicial officers and the victim’s welfare’ – S v M 2007 (2) SACR 60 (W) pp 98–106. At

Specific concerns that have been expressed include:

  • The fact that criminal proceedings tend to exclude victims, despite the fact that they are the very people most affected by the crime incident;
  • The inadequacies in the conceptual foundations or practices of criminal justice;
  • The recognition that imprisonment causes suffering and debilitation;
  • The inadequacies of retribution alone as a governing theory; and
  • The appropriateness of making offenders accountable to their victims.

Some feminist scholars have argued that societal responses to crime should reflect values such as harmony and felicity rather than those of control and punishment (Daniel Van Ness and Karen Strong, Restoring Justice, Cincinnati: Anderson Publishing Company, 2002). Annette van der Merwe quotes Susan Daicoff to the effect that all these streams have ‘two core common features’:

They all explicitly seek to:

  • Optimise human well-being in legal matters, whether that well-being is defined as psychological functioning, harmony, health, reconciliation or moral growth; and
  • Focus on more than legal rights, so they include the individual’s values, beliefs, morals, ethics, needs, resources, goals, relationships, communities, psychological state of mind, and other concerns in analysis of how to approach the legal matter at hand (Van der Merwe, ‘Therapeutic jurisprudence’, quoting Susan Daicoff, ‘Growing Pains: The integration vs. specialization question for therapeutic jurisprudence and other comprehensive law approaches’, 30 Thomas Jefferson Law Review 551, 2008).

In addition, we would argue that in our pursuit of justice we need to also draw on the perspectives of peace building and conflict transformation so that we recognise the impact that wider context plays in situations of conflict, violence, harm and crime.

Restorative justice is a very specific stream within the comprehensive movement outlined above, and has developed in such a way that it is not limited to criminal justice matters (Gerry Johnstone and Daniel Van Ness (eds), Handbook of Restorative Justice, US and Canada: Willan Publishing, 2007, p 15). It represents an attempt to rethink, fundamentally, our concept of what justice is, to view matters of crime and justice through a new lens, in many ways by returning to earlier understandings. For that reason, it is frequently described as a rediscovery rather than a discovery (AM Skelton, ‘The Influence of the Theory and Practice of Restorative Justice in South Africa with Special Reference to Child Justice’, unpublished LLD thesis, 2005, p 4).