RESTORATIVE JUSTICE IS NOT SUITABLE FOR GBV IN SOUTH AFRICA

INTRODUCTION

Gender-based violence remains one of South Africa’s most serious social problems. Every day women and children are victims of rape,assault and murder.Restorative justice is the system that its main focus is on the healing process of the victim and repairing the harm caused,it is  a dialogue between the victim and the offender to reach healing and agreement. South African court are delaying cases and GBV cases  keep increasing.Because of this, people are asking if restorative justice should be used in gender-based violence cases. However, this approach is not suitable for GBV. Statistics South Africa note that the country’s rape rate reaches 138 per 100,000 women,placing it among the highest in the world.

Police recorded 957 murdered women during a peak reporting quarter, 1,567 attempted murders and over 14,630 assault cases with the intent to inflict grievous bodily harm,this proves that everyday in South Africa women and children are not in good or safe hands, and in most cases the offenders are no where to be found.

This Article argues that restorative justice should not be used to address gender-based violence in South Africa because if fails to deal with trauma, does not ensure accountability, does not address root causes, puts victims in danger and is weaker than the criminal justice system.

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THE RISK OF RE-TRAUMATIZATION

To begin with, restorative justice puts victims in danger because they have to face their offender. Facing the offender is dangerous because it reminds the victim of exactly what happened at the crime scene. It can also affect the victim’s health. In most cases, victims already suffer from psychological problems and being forced to confront the offender may make the trauma worse and last forever. In Carmechele v Minister of Safety and Security 2001 (4) SA 938 (CC)[1], the Constitutional Court confirmed that the state has a duty to protect women from gender-based violence. This shows that the law prioritizes the safety and dignity of victims. In South Africa, many GBV survivors already struggle with anxiety and depression after the attack.

GBV leave long- lasting emotional and psychological scars. Victims often suffer from PTSD,anxiety, depression, and fear long after the physical injuries have healed, being in the same room with the abuser can trigger flashbacks and panic. Instead of putting the victim’s mental health first, restorative justice prioritizes the offender’s need for forgiveness and reintegration. Healing requires therapy,medical care, and time away from the perpetrator things that restorative justice does not provide.

Therefore restorative justice in not appropriate because it cannot heal the trauma and may cause more emotional pain. Trauma does not just “go away” with a talk it comes back.

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LACK OF REAL ACCOUNTABILITY AND JUSTICE

Restorative justice fails to hold offenders truly accountable for gender-based violence. With restorative justice,offenders do not have to stay in prison for their full sentence,instead they may get a lighter punishment like mediation or an apology, this means that serious crimes like rape and assault are not treated with the seriousness they deserve. In S v Pillay 2018 (2) SACR 192(KZD),[2] the court state that it is the duty of courts to impose harsh sentences to recognise the seriousness of GBV the court also said sentencing must focus on deterrence and retribution. Furthermore, in DPP v Thabethe 2011 (2) SACR 576(SCA)[3], the court warned that failing to impose proper sentences “would have the effect of eroding the public confidence in the criminal justice system.” therefore, restorative justice cannot bring real justice because it lets offenders avoid proper punishment.

In the criminal justice system, accountability means the offender is charged, tried,and sentenced according to the law. This process creates a public record and sends a message that GBV is a crime that society will not tolerate. In S v Baloyi 2000,[4] the Constitutional Court stressed that the state must hold perpetrators accountable through prosecution because domestic violence violates section 10 of the Constitution which states that “everyone has inherent dignity and the right to have their dignity respected and protected.”[5] domestic violence also violates section 9 of the Constitution which is the right to equality and section 12 of the Constitution the right to bodily integrity. [6]A criminal record also follows the offender and can limit future opportunities, which acts as a deterrent.

In contrast, restorative justice relies on voluntary participation,apology and agreements such as community services or compensation. The problem is that an apology can be given without genuine remorse. Many offenders use the process to manipulate victims or to avoid jail time. Furthermore, there is no guarantee that the offender will keep the agreement, if they break it, the victim has little legal protection, this means the offender escapes the full consequences of their actions.

In GBV, cases where there is often a pattern of abuse, letting the offender “talk it out”

Instead of facing criminal charges minimizes the seriousness of the violence.it also tells society that GBV is less serious than other crimes. Therefore restorative justice fails to hold offenders truly accountable.

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IT DOES NOT ADDRESS THE ROOT CAUSE OF GBV

Third, restorative justice does not solve the bigger problem of gender-based violence in South Africa because it treats GBV like a personal problem instead of a social problem,gender based violence in South Africa is a social problem,not a personal one because it affects the whole nation, it does not only hurt the victim, but all citizens are affected by fear,inequality, and trauma.

Gender-Based Violence in South Africa is linked to deep structural problems such as patriarchy, gender inequality, poverty and a culture of violence. The criminal justice system, while not perfect, works together with laws, policies, and public education to challenge these causes. For instances, Domestic Violence Act and the National Strategic Plan on GBVF aim to change social norms and provide support services alongside prosecution.

Restorative Justice, however, focuses only on the individual incident between the victim and offender. It asks “how can we fix this harm” but does not ask “why did this happen in the first place.” A facilitated meeting cannot change the fact that many men are socialized to believe they have  power over women. It also cannot address economic dependence,substance abuse, or community attitudes that normalise  violence. Without taking these underlying issues, the same offender is likely to reoffend, and other members of the community learn that there members of the community learn that there are no serious consequences. In short, restorative justice treats the symptoms but ignores the disease. For a country like South Africa where GBV is systematic, we need solutions that target the root causes, not just individual dialogue. Restorative justice only deals with one offender and one victim at a time,so it cannot fix the bigger issues like power, inequality and culture that cause GBV.

In S v Pillay 2018(2) SACR 192 (KZD)[7],the court said “violence by country.”  This means GBV is a national crisis, yet talking in circles will not end a problem that needs laws, education and real punishment.

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RISK TO VICTIM SAFETY AND POWER IMBALANCE

Fourth, Restorative justice puts victims in danger by forcing them to face their offenders. In many GBV cases, the offender has more power than the victim. If they meet for restorative justice, the victim’s life could be in more in even more danger because the offender might also try to manipulate the victim by offering to drop the charges or end the case. This means the victim cannot speak freely and is not safe. In South Africa, victim intimidation is already big problem in GBV cases, and restorative justice would make it easier for offenders to pressure victims.

Gender-Based Violence is not like other crimes. It usually happens within relationships where the offender already has power and control over the victim. This  power imbalance comes from physical strength, financial dependence, emotional manipulation, or social status.

 In court, the victim is protected, they give evidence from a witness stand, they have legal representatives, and the offender is kept in custody or behind a dock. This structure protects the victim from intimidation.

In restorative justice, however, the victim and offender sit in the same room for direct dialogue. The goal is to talk and reach an agreement. But for GBV victims this is extremely unsafe, because the offender can use the meeting to further threaten the victim, guilt-trip or manipulate the victim. Many victims feel pressured to forgive or to scared of what will happen afterward. Research shows that in abusive relationships, victims often minimize the abuse to keep the peace,voluntary. Instead of healing the victim may experience more trauma, yet bringing victim and offender together in restorative justice ignores the reality of power and control in GBV. It prioritizes dialogue over the safety and well being of the victim. Restorative justice puts survivors at risk instead of protecting them.

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WHAT ACTUALLY WORKS TO ADDRESS GBV

To properly address GBV, South Africa needs maximum sentencing, for offenders who are proven guilty, and proper support for victims. The court must send a clear message that GBV will not be tolerated. Restorative justice does not provide this because it focuses on talking instead of real punishment. While some cases of false accusations exist, the focus must be on protecting the majority of real victims and ensuring guilty offenders face serious consequences like life long imprisonment. Under the Criminal Law Amendment Act 105 of 1997[8], rape and murder carry minimum sentences of life imprisonment, this shows that the parliament believes that GBV needs the hardest punishment, therefore, restorative justice is too soft and undermines the seriousness of GBV.

COMPARATIVE ANALYSIS

CRIMINAL JUSTICE VS RESTORATIVE JUSTICE

A comparison between the criminal justice system and restorative justice shows why the criminal system is better for GBV.

Under criminal justice the purpose is to punish the offender, deter the future crimes, and protect society. The  focus is on the state versus the offender because GBV is a crime against the law. The process involves police, courts and possible jail time, which keeps the victim safe as a witness. This was confirmed in S v Baloyi 2000 [9]where the constitutional court held that domestic violence violates constitutional rights and that the state has a duty to use criminal law to protect victims.the court rejected the idea that GBV is a private matter and stressed accountability through prosecution. In contrast, restorative justice focuses on dialogue between the offender and the victim of healing and agreement. However this puts the victim in direct contact with the offender and risks intimidating. Furthermore Criminal justice results in a conviction and criminal record,which sends a strong message that GBV is serious. Restorative justice only results in an apology or compensation, which is too soft for violent crimes,therefore the Criminal Justice system is more appropriate for addressing GBV in South Africa.

The criminal justice system provide victim support services,counselling referrals, and protection orders as part of the legal process.the focus is on justice first,and healing can then happen with professional help.

CONCLUSION

In conclusion, restorative justice is not the solution to gender-based violence in South Africa. This is because it does not deal with the trauma and can cause more emotional harm to victims. It does not ensure real accountability because offenders are sometimes released on bail even when they are guilty of serious crimes. It also does not address the root causes of GBV because it focuses only on the victim and the offender. What about the people of South Africa as a nation, and what about the family of the victim?, it further victims in danger because the victim might be threatened or bribed by the offender. For these reason, South Africa needs stronger punishable actions and real consequences for GBV. Only then can we protect victims, support families, and build a safer nation for everyone.          

REFERENCE(S):

CASES

Carmichele v Minister of Safety and Security 2001 (4) SA 938 (CC)

DPP v Thabethe 2011(3) SACR 576 (SCA)

S v Pillay 2018 (2) SACR 192 (KZD)

S  v Baloyi 2000 (2) SA 425 (CC)              

LEGISLATIONS          

Criminal Law Amendment Act 1997

Constitution of the Republic of South Africa,1996,s9

Constitution of the Republic of South Africa,1996,s10

Constitution of the Republic of South Africa,1996, THE BILL OF RIGHTS,s12                              

[1] Carmichele v Minister of Safety and Security 2001 (4) SA 938 (CC)

[2] S v Pillay 2018 (2) SACR 192 (KZD)

[3] DPP v Thabethe 2011 (3) SACR 576 (SCA)

[4] S v Baloyi 2000 (2)SA 425 (CC)

[5] Section 10 of the Constitution

[6] Section 9 of the Constitution

[7] S V Pillay 2018 (2) SACR 192 (KZD)

[8] Criminal Law Amendment Act 105 1997

[9] S v Baloyi 2000 (2) SA 425 (CC)