Restorative justice by means of concessions on custodial sentences: The New Zealand approach and possible lessons for South Africa

Abstract

South African courts, in at least two reported cases, have dealt with restorative justice (RJ) in sentencing offenders (i.e. State v. Thabethe (Thabethe case); State v. Seedat (Seedat case)). In both of these cases, the Supreme Court of Appeal rejected the notion of RJ in its entirety, with the presiding judges ‘[cautioning] seriously against the use of restorative justice as a sentence for serious offences.’ However, in countries such as New Zealand, courts have handed down custodial sentences in cases of serious offences while giving due regard to RJ at the same time. The purpose of this article is to highlight some of the strategies that New Zealand courts have invoked to ensure that a balance is struck between retributive justice and RJ. On the basis of this analysis, a conclusion is drawn that RJ can play a role in criminal matters by having it reflect through reduced sentences. With such a strategy, courts can strike a balance between the clear and powerful need for a denunciating sentence on the one hand and RJ on the other.