Restorative justice should not be used to influence the sentencing when serious crimes are committed

March 1st, 2024
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 Director of Public Prosecutions, North Gauteng v Thabethe 2011 (2) SACR 567 (SCA)

 The best interest of the minor child must be considered when dealing with matters concerning the minor child (s 7 of the Children’s Act). It is a known fact that South Africa has a high crime rate and restorative justice was introduced to address the same (LW Sherman and H Strang Restorative Justice: The Evidence (London: Smith Institute 2007)). Daniel van Ness and Karen Strong define restorative justice as a procedure that is used to restore the harm caused by crime between the perpetrator, state, victim and society (DW van Ness and KH Strong Restoring Justice: An Introduction to Restorative Justice 3ed (Anderson Publishing 2006)). This procedure follows the idea that all the relevant persons, such as community members, offenders, victims, and the government are involved in the restoration process; and this will promote justice as the society is liable for creating peace and the government is liable for stability within the borders of its country. The act of crime is found to have caused harm to the victims and communities by the law offenders, this means the spirit of humanity is applied to restore broken relationships while the affected parties are afforded an opportunity to heal. This article will discuss how restorative justice was wrongfully applied in Director of Public Prosecutions, North Gauteng v Thabethe 2011 (2) SACR 567 (SCA) and S v Thabethe 2009 (2) SACR 62 (T).

Application of restorative justice in S v Thabethe

In S v Thabethe, the accused committed statutory rape, the victim was a 15-year-old girl. A day after committing the crime, the perpetrator turned himself in. The accused had been staying with the mother of the victim, and he was the sole provider of the family. The victim was afforded an opportunity to address the court on the crime committed against her and how it had affected her. She stated that she was disappointed by the act committed by the man who was supposed to protect her from harm and yet had exposed her to it. Moreover, she furnished the court with exceptional circumstances such as that it would be in the best interest of her family for the accused not to be sentenced to imprisonment. She also stated that she needed financial support from the accused for her education. The accused –

  • was a first offender;
  • exhibited remorse;
  • pleaded guilty;
  • continued to support the family;
  • cohabited and had a new baby with the victim’s mother;
  • the victim and offender participated in a victim/offender program, which was successful;
  • the accused attended all court dates and was a good candidate for therapy; and
  • was no threat to society in general.

After considering all of these factors the court found it fit to apply the principle of restorative justice, and later impose a lighter sentence on the accused with compelling reasons. The court found that s 51(2) read with part III of sch 2 of the Criminal Law Amendment Act 105 of 1997 provides for a prescribed minimum sentence of not less than ten years for a first offender unless the court finds substantial and compelling circumstances to justify a lesser sentence. Thabethe was a first offender and he qualified for this sentence. The High Court imposed a sentence of ten years’ imprisonment, suspended for five years on condition that he –

  • is not convicted during this period of crime involving violence or a sexual element;
  • remains employed;
  • contributes 80% of his salary to the victim and her family;
  • continues to support the family of the victim;
  • performs 800 hours of community service; and
  • reports every week to the probation officer.

However, this decision was challenged at the Supreme Court of Appeal (SCA), which held in terms of s 51(5)(a) of the Criminal Law Amendment Act, the sentence in terms of s 51(2) cannot be suspended as contemplated in s 297(4) of the Criminal Procedure Act 51 of 1977. Therefore, in Director of Public Prosecution, North Gauteng v Thabethe, the appeal was upheld and the sentence imposed by the High Court was set aside and replaced with ten years’ imprisonment.

Conclusion

The application of restorative justice is used to address crime, attempting to place the offenders, victims, societies, and the government in the same position they were in before the commission of the crime. In the case mentioned above the application of restorative justice was used to influence the sentencing of the offender. This has undermined the best interests of the minor child who was a rape victim. One can contend that restorative justice benefitted the offender more than it benefitted the victim because it allowed the offender to escape the appropriate sentence for their crime. However, an appeal to SCA has revealed that the High Court did not appropriately apply restorative justice and set aside its judgment. Application for appeal is expensive and time consuming by nature. In this case, restorative justice was necessary as it served the best interest of the minor child. However, an inappropriate sentence was handed down by the High Court and this made the court look incompetent. Sentences of this nature will make members of society lose trust in the justice system, instead it will be seen as a veil that protects offenders from imprisonment. Nevertheless, the SCA has managed to provide for an appropriate sentence in the case mentioned above. Therefore, the court should not rely on personal circumstance of the offender only when reaching its judgment and it must stick to an appropriate sentence to the crime committed, which will benefit the interest of the criminal justice system, government, and society in general and most importantly the victim.

 

Thabo Elias Lekoko LLB LLM (NWU) is a candidate attorney at North-West University Potchefstroom Law Clinic. Thabo Jacob Sebatane Dip Legal Studies (Oxbridge Academy) Dip Project Manager (Cum Laude) (Oxbridge Academy) BA Police Practice Hon Police Practice LLB (STADIO) is a colonel in SAPS at Potchefstroom and Provincial Commander Organized Crime in SAPS North West Province.

This article was first published in De Rebus in 2024 (March) DR 41.

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