Substantive equality, restorative justice and the sentencing of rape offenders

• Jurisdiction: South Africa
• Citation: (2016) 29 SACJ 273
• Date: 24 May 2019
• Author: Amanda Spies
• Pages: 273-291
• Published date: 24 May 2019

Substantive equality, restorative

justice and the sentencing of

rape offenders

AMANDA SPIES*

ABSTRACT

This art icle explores the concept of substantive equal ity and how, as a

constitutional value, it requ ires the consideration and applicat ion of

restorative justice principles i n the sentencing of rape offenders. Wit h

sexual violence being a di fcult and controversial are a in which to apply

restorative justice principles, t here is a need to understand t he necessity for

its application and analyse how it has been applied by S outh African courts.

The argument is made t hat restorative justice should be see n as a method

that gives effect to substa ntive equa lity values, allowing for a victim’s needs

and context (including that of the offender) to be taken i nto account in

handing down a just sentence.

1 Introduction

The high court decision in S v See dat1 has put the spotlight on the use

of restorative justice principles in the sentencing of rape offenders.

To date, this principle has not been considered in many rape cases

which raises the question as to its applicabilit y and suitability in t hese

matters. This ar ticle intends to explore the concept of restorative justice

as it relates to the sentencing of rape offenders in South Afr ican law.

The analysis that follows will focus on the concept of substa ntive

equality and how, as a constitutional value, it requires the application

of restorative principles in the crimi nal justice system, part icularly in

rape cas es.2 By considering restorative justice pr inciples as part of the

judicial landscape, direct ion could be provided to questions on how

* LLB LLM (U P) PhD (W its), Ass ociate Professor, Department of Publ ic, Constitutional

and Internationa l Law, Universit y of South Africa.

1 S v Seedat 2015 (2) SACR 612 (GP) (herein after Seedat). [Editor ’s note: T he approach

adopted to sentencing in t he high court was not approved on appeal by the Supreme

Court of Appeal i n S v Seedat 2016 JDR 1820 (SCA)].

2 Section 1 of the Cons titution of the Republic of South Afr ica, 199 6 (herein after the

Constitution) st ates ‘The Republic of South Afric a is one, sovereign democratic state

founded on the following values: (a) Human dign ity the achievement of equalit y and

the advancement of human r ights and freedoms.’

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(2016) 29 SACJ 273

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to be fair to accused persons, while not treati ng victims and witnesses

as i nf er ior.3

2 The application of restorative justice principles in sexual

violence matters

Restorative justice is a term that is not easily dened . In its simplest

form, it is seen as an alternative to punitive methods of pun ishment

and focuses on repairing the ha rm caused by crime, thereby restoring

the parties to a state of ‘wellness or wholeness’ that was di sturbed as

a result of the crime.4 Generally, there exist dif ferent legal contexts

in which restorative justice is applied. The rst, and for what the

concept is probably best known, is the diversion from normal cri minal

proceedings.5 Here the focus would be on victim-offender reparation

through mediation or communit y conferencing where victims,

offenders and a facilitator meet to discuss the ef fects of a particula r

crime and, to make a plan as to how to go about repairing the d amage

and minimise t he likelihood of fur ther harm.6 Other contexts i n which

restorative justice is applied include the application of restorative

justice principles as a component or condition of sentence as a viable

sentencing option, and as a post-sentence component in considering

early release.7

With the level of victim participation in t raditional crim inal justice

systems being mini mal, there has been an acknowledgment that

victims might need to confront the of fender to relay how the crime

impacted on him/her, despite a formal tr ial or even a guilty plea.8

Ultimately, restorative justice emphasises victim participation and

offender accountabilit y through r eparations and reh abilitation rat her

than punishment and incarceration.9

Many scholars have questioned and critiqued the application of this

method of justice, especially concerni ng more serious crimes (such as

3 C Boyle ‘The role of equal ity in criminal law’ (1994) 58 Saskatch L R ev 203 at 216.

4 B Tshehla ‘The restorati ve justice bug bites the Sout h African cr iminal ju stice

system’ (2004) 17 SACJ 1 at 6 .

5 K Daly ‘Restorative just ice and sexual ass ault: An archiva l study of court and

conference cases’ (200 6) 46 Brit J Criminology 334 at 335.

6 MP Koss, KJ Bachar & CQ Hopk ins ‘Restorative justice for sexu al violence: Repairing

victims, bui lding community, and holding offenders acco untable’ (2003) 989 Annals

NY Academy Sci 38 4 at 388.

7 Daly op cit (n5) 335.

8 A Skelton & M Batley Charting Pro gress, Mapping the Future: Restorativ e Justice in

South Africa (2 006 ) 13.

9 Koss, Bachar & Hopkin s op cit (n6) 38 8.

274 SACJ . (2016) 3

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