Comment: Therapeutic jurisprudence: judicial officers and the victim’s welfare – S v M 2007 (2) SACR 60 (W)

JurisdictionSouth Africa
Published date16 August 2019
Date16 August 2019
AuthorAnnette van der Merwe
Pages98-106
Citation(2010) 23 SACJ 98
Therapeutic jurisprudence: judicial
ofcers and the victim’s welfare
ANNETTE VAN DER MERWE
University of Pretoria
Introduction
South African judicial off‌icers have adopted, but only to an extent,
the concept of restorative justice (A Skelton and M Batley ‘Restorative
justice: a contemporary South African review’ 2008 Acta Criminologica
42, 49; cf SS Terblanche Guide to sentencing in South Africa (2007)
177 and S v Maluleke 2008 (1) SACR 49 (T)). This aims to hold of-
fenders accountable in a meaningful way while addressing the needs
of victims and the larger community. Sharing similar principles, but
being more comprehensive, the concept of therapeutic jurisprudence,
relatively unknown in South Africa, explores a problem solving ap-
proach and perceives the law as a potential healing tool, as opposed to
simply focusing on guilt or innocence and processing cases (Goldberg
Judging for the 21st century: a problem-solving approach National Judi-
cial Institute Canada (2005) 5 available at http://www.nji.ca/nji/Public/
documents/Judgingfor21scenturyDe.pdf accessed on 14/01/08).
Viewing the law through a therapeutic lens, it acknowledges the pro-
found impact (often anti-therapeutic) the legal process and its outcome
may have on all participants’ lives and well-being. Cases where, inter
alia, drugs or alcohol, domestic violence and mental health problems
are involved provide opportunities to apply therapeutic jurisprudence
principles within the criminal court context, giving rise to the so-called
‘problem-solving courts’ (Goldberg op cit 6). The focus will typically
be on non-custodial sentencing options such as postponed sentences
(with conditions) or correctional supervision (DB Wexler ‘Robes and
rehabilitation: how judges can help offenders ‘make good’’ 2001 Court
Review 18) and the offender’s motivation, treatment and rehabilitation
(Wexler ‘Therapeutic jurisprudence and readiness for rehabilitation’
2006 Fla Coastal L Rev 111); Goldberg op cit 33; A Birgden ‘A com-
pulsory drug treatment program for offenders in Australia: therapeutic
COMMENTS
98
(2010) 23 SACJ 98
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