Restorative Justice: “An enquiry into the effects restorative justice could have as a form of alternative penalty for pregnant women offenders in South Africa.”

Restorative Justice:  “An enquiry into the effects restorative justice could have as a form of alternative penalty for pregnant women offenders in South Africa.”

Restorative Justice

I Thought I Would Share My 4-year-old Final Year LLB Research Paper because I don’t know a better platform to display it on. Reading this was very interesting in relation to what I know now.

Independent Research Essay 2016

Essay Title:

“An enquiry into the effects restorative justice could have as a form of alternative penalty for pregnant women offenders in South Africa.”

restorative justice



DCS: Department of Correctional Services

HIV: Human immunodeficiency virus




Ubuntu: A quality that includes the essential human virtues; compassion and humanity.[1]


Recidivism: Fundamental concept in criminal justice. Refers to a persons relapse into criminal behaviour after the person undergoes intervention for a previous crime.[2]


Vengeance: The punishing of someone for harming another or the wish for such punishment to happen.[3]


Empathetic: The ability to understand and share the feelings of another.



In an effort to illustrate the benefits of alternative approaches to offending in the South African criminal justice system, this essay sets out the arguments for the implementation of restorative justice in the justice system in cases of pregnant women offenders. Within the South African context, restorative justice was earlier described as a new way of doing justice, either as an alternative or within the criminal justice system, and that, while offenders are held accountable, the victim is always central.[4]This essay will make the offender the central point because this is a particular type of offender, one that is a pregnant woman. Internationally restorative justice theories and practices have been substantially documented, in South Africa, restorative justice has moved from the margins to take its place as a subject of serious academic debate in criminal justice.[5] It has also featured in a promising jurisprudence that is emerging from the country’s superior courts.[6]


“We brought the needle to sew the torn social fabric, not the knife to cut it” – Bantu Proverb.[7]

“Crime is fundamentally a violation of people and interpersonal relationships,[8]it is commonly known as the involvement of one in illegal activities.”[9]This essay will address important social issues linked to a child born in a prison environment, as a result of their mother having committed a crime as described above. The Correctional Services Amendment Act No 25 of 2008 (The Act) allows one to be imprisoned whilst pregnant and for female offenders (mothers) to stay with their babies in a correctional facility until the babies reach the age of two years.[10]This essay looks to remedy this phenomenon by looking at the effects restorative justice may have as a form of alternative penalty for pregnant women offenders in South African correctional services facilities, this will be done by unpacking the good a restorative process can do.

For the purposes of this essay, the focus will be the implementation of restorative justice for the benefit of pregnant offenders and offenders who have infants. The Bantu proverb above is the perfect depiction of what this essay looks to do by insisting on the implementation of restorative justice for pregnant offenders within the South African criminal justice system. Pregnancy and birth are a time when people often feel motivated to make positive changes in their lives and by intervening at this important time we can not only improve outcomes for the most disadvantaged children but also support parent offenders by understanding their reasons for offending.[11]

The above will be demonstrated by explaining the positive effects of restorative justice as an approach; this approach to justice is new in South Africa and maybe heavily criticized therefore it is important to emphasize the positive impact this approach to justice may have on a community. There are many ways one could believe that restorative justice may undermine public peace and security,[12] but one needs to always look at the reasons for an offender committing a specific offence, more so an offender that is pregnant.

This approach will, therefore, be looked at using the criminal procedure principle that, “justice must be done and must be seen to be done,”[13]this is the only way to ensure bias does not occur when granting restorative justice in the justice system. This principle was also addressed in the old and well-known English case of R v Sussex Justices; Ex parte MacCarthy.[14]Restorative justice has been defined as, “an approach to justice that aims to look at the needs and roles of those affected by a crime involving all the parties to a dispute. Parties such as the victims, offenders, the community, and families of both parties.”[15] Restorative justice outcomes include an apology to the victim and community to make amends to the victim and amends to the community.[16] For clear examples, this essay will incorporate countries where this approach has succeeded and improved the criminal circumstances of each community.


Restorative justice has been practised around the world for quite some time. It is an approach that was developed by Ali Gohar and Howard Zehr the authors of “The Little Book of Restorative Justice.”[17]Howard Zehr is described as the father of restorative justice.[18] His interests grew out of work with victim-offender reconciliation programs.[19]

Restorative justice began as an effort to deal with burglary and property crimes, which were viewed previously as minor crimes.[20] The rest of the world uses this approach to remedy issues involving death from drunken driving, assault, rape, murder and South Africa is looking at extending this approach to mass crimes.[21] Restorative Justice practices were introduced and viewed as important because they help reduce crime, violence, and assist with the improvement of human behaviour.[22] This approach to justice looks to strengthen the civil society, and it provides for effective leadership because elders in a community manage the manner in which issues are and should be resolved.[23]This approach to justice helps restore relationships and repair the harm caused by the crime and this is important because communities are broken.[24]

Looking at the history of South Africa, a system that looks to uplift and not break one is crucial and restorative justice for pregnant women would be a step in the right direction. As a community, South Africa is only on the twenty-second year of its democracy therefore the wounds of the past are still healing. Approaching people in a manner that only looks to punish and not fix them by helping them fix their wrongs will collapse the democracy that the people fought hard for.

The Human Rights Commission of South Africa is one of the structures that are at the forefront of promoting the processes of restorative justice because it is assisting in the implementation of a modern justice system that does not only benefit a minority. The human rights commission identifies itself as a structure which, ‘discusses and integrates strategic priority areas in line with the human rights matrix, it is the national establishment to support constitutional democracy.’[25]

Principles and values

Restorative justice echoes ancient indigenous practices employed in cultures all over the world.[26]Indigenous justice is said to have shaped restorative justice in two ways, firstly the programs were “adapted from traditional Maori practices in New Zealand as well as First National practices in North America.[27] Secondly, the “incompleteness of the criminal justice systems focus on the offender”[28] in this case one that is pregnant.

Modern restorative justice broadened the concept to include care and mindfulness of what the offender may be going through at the time of the offence, and to fully understand the reason behind them committing the crime.[29] Now communities participate in collaborative processes called conferences and circles in order to ensure that the offender understands the harm they have caused; this allows the offender to reintegrate into the community without the presence of hatred from other members of such community.[30]

The process belongs to the community this therefore allows active involvement from all who are involved thus healing the wounds the crime may have caused and justice is seen to be done in this way.[31] Hence the primary focus and principles of restorative justice are that the offender is forgiven with the help of community elders, and the government usually respect the decisions made by the elders of each community as each community is different in that not the same remedy will benefit all communities the same way.[32]This is connected to what the African culture and traditions look to promote.

Restorative Justice articulates the beauty and power of Ubuntu in a society; Ubuntu promotes compassion, dignity, harmony, and humanity in the interests of building and maintaining community.[33]Ubuntu addresses our interconnectedness and the responsibility we all have to each other.[34]Therefore the focus on the offender’s needs and their competence in an issue is addressed which is a vital element in empowering an offender[35] and following the ideals of Ubuntu. On the part of the child involved this quote resonated, “starving children in Africa are not poor because their consciousness is unaligned with love; they’re poor because ours is.”[36]And this is a clear depiction of the effects of how the criminal justice system operates. We live in societies that are not empathetic but instead tolerate policies that may lead to the starvation of a child.

The restorative justice process draws from community resources, in turn, contribute to building and strengthening of the community.[37] Restorative justice is mindful of outcomes and promotes the changes in the community to prevent similar harms from happening to others, fostering early intervention to address the needs of victims and accountability of offenders does this.[38]The most important principle is that victims have the principal role in defining and directing the terms and conditions,[39]this way the community may see that justice is being done. Restorative justice makes available the opportunities for remorse and forgiveness as well as reconciliation between all the interested parties.[40]

The table below demonstrates what restorative justice approach has been perceived to be, verse what it really is based on the research done.[41]


Appendix A

Table 1

What it is What it is not
1.    A way to reduce repeat crimes, promote healing 1. It is not limited to mediation – still applicable to a party is unable to attend a sit down (letter writing, videos)
2.    Victims needs are addressed in an attempt to repair the harm 2. Not primarily designed to reduce recidivism
3.    Offender is encouraged to take responsibility 3. No particular program a community has to follow each community has different needs and resources
4.    Those affected are involved in the process 4. Not primarily intended for minor crimes
5.    About empowerment 6. More impact on sever cases


What will restorative justice offer South Africa?

Shillum the Hebrew word for restitution, which in English means the re-establishment of peace,[42]is exactly what restorative justice will offer South Africa if it is implemented in the justice system. It will restore a community that has been broken by a high crime rate by understanding human nature that, “people are morally good and make bad choices because of their circumstances.”[43] The Conversation Africa reported that there are encouraging signs that South Africa is beginning to rebalance its colonial approach to justice by incorporating elements of restorative justice,[44]This is what this essay is working towards, a South Africa which is not harsh but is empathetic. Restorative justice is respectful to all parties because the entire process belongs to the community

The other ways in which restorative justice may benefit South Africa in the context of pregnant imprisoned women and those with infants are. Firstly we can look at two cases namely S v Maluleke[45] where the accused, was convicted of the murder of the victim who broke into her house. The accused lived in a small close-knit community and the deceased was well known to her, and had been charged together with several other accused that were later acquitted.[46] The accused was granted restorative justice because she was clearly not a person against whom society needed to be protected against.[47]This case saw that an alternative sentence to imprisonment would serve the community better, this is the attitude required by a judge in our courts.

A recent case which supported the idea of restorative justice in South Africa was Seedat v S[48]which the magistrate stated that “I am of the view that the circumstances of this case, call for resorting to restorative justice, and make a compensatory award, within the framework of the existing sentencing mechanism,[49]this verdict is reasonable for someone who is pregnant. The court, in this case, set aside the 7year sentence and acknowledged that compensatory awards are hard to determine and it is generally a ‘guesswork’ and on order to determine anything there must be a balancing act.[50]

Considering the fact that all general crime categories in South Africa have decreased, except for contact crimes as released as of 2016.[51]How does the focus still appear to be on punishment rather than justice? A different approach is needed. Crimes in South Africa are counted per charge, not per docket, as one docket may contain many charges.[52]Based on the above, because restorative justice draws from community resources and in turn, contributes to the building and strengthening of community,[53]is it safe to say crime can decrease further. The beauty of restorative justice is that it attempts to promote changes in the community to both prevent similar harms from happening to others, and to foster early intervention to address the needs of victims and the accountability of offenders. [54]

Further ways in which restorative justice will assist South Africa is by acknowledging that restorative programs address the issues of poverty based on their resemblance to indigenous practices as stated above, “earlier times, man found it convenient and necessary to come together in groups to hunt for the sake of each person’s survival.”[55]This is the culture that should be adapted in order to diminish the cycle of poverty caused by imprisonment. Restorative justice is a way to place offenders in positive programs and mindset therefore there is no way this would not benefit South Africa as it may be an opportunity to lower crime levels further.

Criminal Justice v Restorative Justice

The main question to be answered here is, to what extent does imprisonment contribute to crime reduction and public protection. When assessing the above and whether or not this restorative justice approach is sustainable for a country such as South Africa one needs to look at the difference between the criminal justice system currently and restorative justice as an approach. Restorative Justice promotes an environment that consistently fosters awareness, empathy, and responsibility.[56] This may prove to be more effective in achieving social discipline than the current reliance on punishment as it promotes a sense of community within the society.[57]The basis of this approach is that the offender needs assistance and seeks to identify what needs to change to prevent re-offending.[58]

The criminal justice system has legal procedures that look to place babies in alternative care this may take a very long, and often there is a lack of cooperation from relatives or absentee fathers.[59]The history of the correctional system has always been related to the punishment of offenders with no respect for their rights.[60]Both systems should work on the development of members of society and not place systems that may be detrimental to both a child and the parent of such a child such as the imprisonment of pregnant mothers or those with infants.

A country where this approach was a success

This section of the essay will provide a brief overview of the current use of restorative justice around the world. Countries in and around the world understand that restorative justice offers both an alternative understanding of crime and new ways of responding to it.[61] Well over 80 countries use some form of restorative practice in addressing crime,[62]the Centre for Justice and Reconciliation at Prison Fellowship International identified this in 2001. During the 1970s and 1980s, informal reform initiative that emerged in Europe and North America called for the abolition of prisons because the initiative believed that prisons were a failure at rehabilitation and were places of acute suffering by prisoners.[63]This is why the development of restorative justice is important for South Africa when courts deal with pregnant offenders and those with infants.

Restorative justice has been used in serious crimes in Canada as reported by their government in their public policy journal that had included the article that was titled, “Restorative Justice in cases of serious crimes.”[64]Serious crimes are violent crimes and are composed of murder, non-negligent manslaughter, forcible rape, robbery and aggravated assault.[65] The journal stated that Restorative justice approach could be successfully applied at the pre-sentence stage in cases of serious crime. Based on the reports in this essay it can be said that Canada understands that when individuals and communities work together sustainable change can fully occur.


Restorative justice cannot be promoted without outlining the current manner in which sentencing of pregnant offenders is conducted in South Africa. In South Africa, the Constitution provides for the independence of the judiciary in the exercise of its functions, subject to the provisions of the Constitution and the law.[66]In respect of common law crimes such as assault, theft, rape, there is no statutory provision, which specifies the type of punishment.[67] Sentencing has been described as the desire to make the offender suffer, not because it is good for him or her, not because suffering might deter him from further crime, but simply because it is believed that the offender deserves to suffer.[68]

In South Africa, sentencing is considered the primary prerogative of trial courts and they enjoy wide discretion to determine the type and severity of a sentence on a case-by-case basis.[69]In the case of S v Khumalo it was highlighted that when assessing the appropriate sentence, regard must be had inter alia to the main purposes of punishment,[70]this is an important principle to ensure that everyone is treated fairly. But the obsessive focus on punishment in many criminal justice systems as well as not empowering communities by bringing confidence of the community on their elders is not what South Africa should maintain in the process of sentencing.

Sentencing is the stage after the determination of criminal liability and may be characterized as a public, judicial assessment of the degree to which the offender may rightly be ordered to suffer legal punishment.[71]The Criminal Procedure Act[72] makes provision for different types of punishment.[73] The criminal justice system for years has been strict when deciding on the process for determining guilt or innocence of an offender.[74]This essay is asking for an alternative to this strict approach of sentencing. Restorative justice promotes the real transformation of the conflict by creating a different path and promoting good solid relationships and moving from hatred to compassion.[75]

Punishment may be deserved because a crime was committed but we always need to consider the psychology of each and every offender that is why mitigating factors should never be removed and make restorative justice the go-to punishment for vulnerable offenders such as those emphasized by this essay, therefore, the means must always be rationally related.[76]

Punishment must be rational; decision-makers should always consider all the available options before imposing any sentence that is harsh. In order to make suitable decisions, uniformity is required when sentencing pregnant offenders by way of restoratives justice. One cannot help but wonder whether the need to protect society warrants drastic and destructive punishment such as imprisonment whilst pregnant or being imprisoned with an infant.[77] The problem of pregnancy in a prison facility has not yet been approached seriously in our law, and until it is, it will remain an unimportant as well as uncertain matter in the justice system.

In the case of The State v Joyce Maluleke[78] and others, sentencing presented problems. On the one hand, the offender was guilty of a very serious offence (murder), the result of a sustained and brutal attack upon a youthful transgressor who was bound up before the assault started and could neither defend nor protect himself. On the other hand, the accused has four minor children who are dependent on her. She is unemployed, and her only income is a child grant.[79] She is a widow and does not receive a pension because her husband was under suspension from the police at the time of his demise,[80]most importantly the accused was a first time offender. This case showed us that it is possible to grant one restorative justice based on how detrimental their imprisonment would be and how it would affect the community as a whole. There was no suggestion that there exists any danger of the crime being repeated by the offender we can tell because of the circumstances she found herself in at the time, nor is there any indication that the accused is a person that normally gives in to violent conduct.

Again based on the evidence it showed that she regretted and still regrets the death of the victim, she, therefore, is clearly not a person against whom society needs to be protected. On the other hand, the crime of murder (intentional taking of another’s life before)[81] calls for a severe sentence, this does not mean that imprisonment is the only solution to the problem.

Little in the justice system encourages offenders to understand the consequences of their actions, neither is there a system that forces the offender to empathize with victims.[82]Real accountability involves facing up to what one has done this means the offender understands the impact of their behaviour and the harm they have caused, this is both beneficial to the victim and the community at large. We cannot say that the above can be achieved if an offender is within the walls of a prison because of the nature of imprisonment. Imprisonment does not fully repair the harm caused and fails to bring the people into dialogue and redress of criminal injustice.[83] Out of tragedy can come hope and healing if we seek it.[84]Disputes should be handled in safe environments and an apology is a useful way to make amends this can be achieved by proper screening of participants.[85]

Prisons are under-resourced,[86] the prison environment and experience promotes alienation from society, hence it is hard to expect offenders to take responsibilities by changing their behaviour and become contributing members of the society under isolation and believing that the community has turned their back on them.[87] The Constitutional Court condemned the unpleasant conditions at Pollsmoor prison but it has been reported that there has been little change; the women in that prison have spoken about being traumatized by the appalling conditions they are subjected to.[88]It was further reported that pregnant women who had complications were accommodated at night from the sixth month of pregnancy onwards in the hospital section of the prison.[89]Female offenders with children and pregnant women who had special dietary needs were catered for through the provision of special diets as prescribed by a medical doctor.[90]

There are many issues when infants and very young children remain with their mothers in a prison environment; it is not enough to say, “a child is allowed as close to normal an existence as possible in prison.”[91]Based on the above the intention is mainly to change the attitude of legal practitioners and the community at large towards the manner in which pregnant women are punished by the justice system by resorting to restorative justice. Evidence for the success of restorative justice will only accumulate if this approach is trusted and used for the benefit of pregnant women. The Constitution[92] speaks generally as there are no specific laws and regulations tailored to the needs of female pregnant offenders.

The beauty of a justice system is in the weighing of its cases meaning it is possible to manipulate and it is not set in stone, factors such as the gravity of the offence, the circumstances of the offender, and public interest.[93] And public interest is where restorative justice aspect proves to have a positive impact. the community and their views.

Risk factors of this approach

The risk factors of such an approach in a unique community such as South Africa are how exactly does one draw the line between a crime warranting restorative justice and one warranting imprisonment and in the process ensuring that the public maintains its confidence in the administration of justice. Firstly one should look at whether the interests of justice be prejudiced if a prison sentence is not granted, to answer this question one needs to look at what restorative justice looks to achieve, what this approach looks to achieve is supporting offenders while encouraging them to understand the harm they have done to be held accountable by carrying out their obligations whether it is compensating the victim or apologizing to the victim and community.[94]

South Africa has an unemployment rate of fifty per cent, its citizens are known to be one of the most impoverished population in the world, therefore, it is important to not further unnecessarily put a strain on households by the imprisonment of breadwinners.[95]It is in the interest of justice to keep families together as this will always outweigh the value the criminal justice system and society has on imprisonment. Restorative justice is suitable when curbing the increasing crime rate and chaos in South Africa;[96]this approach provides the opportunity for dialogue, direct or indirect between victims and offenders as it suits the parties.[97] Restorative justice finds a meaningful way to involve the community, it encourages collaboration, reintegration rather than isolation and shows respect to all parties, as well as addressing future intentions of the offender to guide and empower them in their endeavours.[98]

Only fifteen per cent (15%) were high-risk offenders, which is not surprising given that they usually have longer criminal histories, maybe less remorseful and less likely to take responsibility to repair the harm caused by their behaviour. High-risk offenders require more intensive intervention and specialized treatment plans, which many restorative justice programs are not designed to provide. In S v Shilubane[99]it was stated that Restorative justice couldn’t ensure that society is protected against offenders who have no wish to reform, and who continue to endanger our communities.[100] The above should not prevent courts from investigating the possibility of introducing exciting and vibrant potential alternative sentences into our criminal justice system.

Statistics of imprisoned pregnant women in South Africa those with infants

According to a report made in 2013 by the Department of Correctional Services (DCS) there are 242 correctional services in South Africa out of these, 8 are exclusively for women and 72 accommodate both males and females.[101] As at 31 December 2013 there were 87 babies with their mothers in Female Correctional facilities.[102] Although compared to the rest of the world this may be viewed as a small number these 87 women still have healthcare, child care needs therefore restorative justice is something that could further improve the system South Africa is currently following. Over half of the offenders were first-time offenders and the majority of them were assessed as low to medium risk.[103]

Another study done of Pollsmor jail in the Western Cape indicated that it was the first correctional services facility that had a unit for inmates and their babies this was a way to diminish the idea of babies being punished for their mother’s crimes.[104]In 2011 it was recorded that in Pollsmor and Worcester correctional services 50 per cent of the women offenders had regular employment and were the sole breadwinners prior to imprisonment it was also reported that their offences were economically motivated.[105] Pollsmoor is known for overcrowding having 70 women in a cell that holds 30 people is unacceptable, it has been reported that this leads to gang violence within the prison, poor sanitary conditions as toilets do not flush and are often exposed to life-threatening diseases such as Tuberculosis.[106]

Effects a prison environment may have on a baby

A child and mother relationship is known to be the most intimate and private relationship[107] and the law should look to protect this in a more dignified manner when punishing an offender. Pregnancy is a fact of life for most women[108]therefore systems such as restorative justice should be present in our modern-day justice system. Restorative justice is a good approach because it is easy to achieve by way of bringing together all the interested bodies to ensure everyone asks the questions they want to be answered this makes moving on easier for the victim and allows the offender to reevaluated their actions so as to never commit such a crime again. Furthermore, as a community, we need to work at ensuring restorative processes are cheaper and faster in their attempt to improve the society.

The reality is that prisons have been designed and built for the needs of men in mind, therefore are inadequate for the needs of pregnant women and new-born babies.”[109]A prison environment is traumatizing and separation from a parent is traumatic[110] too therefore imprisonment cannot be the only or the first option for such a vulnerable person’s. If discretion in the form of restorative justice is to be given to a party it should be to a party that is pregnant and has committed a crime, this will assist in the fight against crime because this approach looks to better and empower everyone who is struggling to abide by the law. Restorative justice will be beneficial to children because the child will not be separated from the mother. For these reasons, the desire to grant offenders restorative justice remains strong.

Rights of a child

Restorative Justice principles are mindful of section 28(1) of the Bill of Rights,[111] which asserts that “every child has the right to be treated in a manner, and kept in conditions appropriate to the child’s age.”[112]When interpreting section 28 of the Constitution it can be said that a correctional services facility when a child is an infant is not the most favourable environment, “in all matters affecting a child the best interest of that child is of paramount importance,”[113]mothers and their children have been overlooked in the South African correctional services this is said because there is no specific mention of them in any policies or any laws of the land.

Women prisoners are often overlooked, their views, needs and struggles barely feature in mainstream debates in society therefore in a sense the community will forget them this is a very big injustice to a person.[114]The objective of this essay is to promote the best interest of a child, growing up between the walls of a prison can be rather traumatic for the child hence imprisonment cannot be the only solution for mothers who break the law.

Secondly, there are issues of separation this cannot be seen as being in the best interest of a child, separation is not easy both emotionally and mentally and this should only occur if it is to protect the welfare of a child.[115] It is hard maintaining a relationship as prison may be a long way from where the child is placed and this makes visiting hard for a family that cannot afford a meal every night because affording a ticket to a different part of the country can be very expensive and the cost of living for the average South African is high.

In the Sun-city jail[116] there is a total disregard of pregnant women It has been reported that in a prison one may only see a doctor when they are gravely sick this is inhuman and one can see a nurse only if they are lucky.[117] Steps to curb the problems in the correctional service are required for the wellbeing of children. Early healthy pregnancy, healthy early relationships, effective support and care for the caregiver of the baby, safe and stimulating environment these are the early requirements for major developments – the last thing one wants is long-term adverse effects on a child.[118]


Restorative justice ensures that the justice system works on the development of members of society, not place systems that may be detrimental to both the child and the parent of that child. This approach embodies a profound capacity for reconciliation and forgiveness, “the process of justice deepens societal wounds and conflicts rather than contributing to the healing or peace.”[119]There are cases where other prisoners are placed in a cell with an offender that is known to be violent such conditions should not continue to flourish in South African correctional services, restorative justice is saying no to punishment to the point of being broken as a human being and yes to the promotion of punishment that looks to better a human being. Imprisonment is no place for an infant. South African courts are bound by their own previous rulings on similar cases and rulings issued by higher courts unless the facts of the case before it are materially different or the previous decisions are “manifestly incorrect.”[120]

The chances of the further committing of crimes after restorative justice is granted to an offender

Lastly, the question to be answered is whether or not rehabilitation together with offenders’ rights is doing more harm than good for society. Restorative justice looks to curb re-offending by rehabilitation in an environment that is both encouraging and empowering as stated above. Within the rehabilitative ideal, the primary aim of all the correctional programs is to institute changes in the characters, attitudes as well as the unacceptable behaviour of the offender’s, which will lead to the welfare, and satisfaction of society in general.[121]

This approach is based on the belief that the offender needs assistance and seeks to identify what needs to change to prevent future re-offending.”[122] This is done by both side of the story being heard and investigated by elders in a community to identify the root causes.[123] Another method is the evaluation examined client characteristics, activities, program impacts and the added value of the restorative justice approach when compared to the traditional criminal justice system.[124]

As the female prison population continues to grow, the number of facilities such as prison nurseries for pregnant women should also increase.[125]Change is possible and it begins by healing and building relationships, Restorative justice has the capacity to empower those who have not been empowered in the past.[126]


Restorative Justice is a sign of hope for the future of South Africa. The aim of this essay was to examine the concept of the development of restorative justice in a country such as South Africa; it is not sparing any offender from a sentence because they have a child. All this essay looks to emphasize is the fact that restorative justice should be the mandatory sentence for pregnant offenders instead of direct imprisonment. There may be those who will attempt to exploit this approach to justice, in order to prevent such from occurring the criminal justice system should look at first time offenders and base every decision to grant restorative justice on the merits of each case with the absence of bias from any decision-maker.

Confidence from the public will be maintained because the victim and the community at large will understand the reasons for the offence fully. All the relevant role players and institutions that are likely to be affected by the proposed method of sentencing and any interested member of the public should, therefore, participate in this debate because as a society we all want justice to be done. This specific essay concludes by upholding that, as a community, there is a need for understanding not vengeance when it comes to a pregnant offender or one with an infant, and the only way to achieve that is through the use of restorative justice practices.

This conclusion was achieved by analyzing every facet of the correctional services facilities and the prison environment as a whole; therefore the circumstances in those facilities should not continue to prevail in South Africa. Restorative justice is one step to curb the problems in the criminal justice system and correctional services







Constitution of the Republic of South Africa,1996.


Children’s Act 38 of 2005.


Correctional Services Amendment Act No 25 of 2008


Criminal Procedure Act 55 of 1977




R v Sussex Justices; Ex parte Macarthy [1924] 1 KB 256 at 259.


S v Khumalo 1984 3 SA 327 (A) at 330 D-E.


S v Maluleke 2008 1 SACR 49 (T)


Seedat v S (A547/12) [2015] ZAGPPHC 286; 2015 (2) SACR 612 (GP); [2015] 3 All SA 93 (GP)


S v Shilubane 2008 (1) SACR 295 (T).


Books and Chapters

AJ Ashworth “Criminal justice and deserved sentences” Criminal Law Review (1989) 36 340-55.

Howard, Zehr & Ali Gohar ‘The Little Book of Restorative Justice’ (2003).


Johnstone, Gerry (2nd ed) ‘Restorative Justice ideas, values, debates’ (2011)


Issue 3 (Vol 35:3)” Babies behind bars: an evaluation of prison nurseries in American female prison’s and their potential Constitutional challenges” Pace Law Review (2015) 1104

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M Williamson ‘The Law of Divine Compensation’ (2012) Harper Collins Publishers

Southern African Catholic Bishop’s Conference Parliamentary Liaison Office ‘Mothers and babies in Incarceration’ Briefing Paper 352 (May 2014)


Tiffany Conway & Rutledge Q. Hutson, Parental Incarceration: How to Avoid a “Death Sentence” for Families, 41 CLEARINGHOUSE REV. 212, 213 (2007).


W Domingo, “Law of Person’s and the Family.” Pearson (2012) 178.



Daniel W. Van Ness, ‘An overview of restorative justice around the world’ (2005) Centre for Justice & Reconciliation at Prison Fellowship International Washington, DC

Dries Velthuizen ‘The Conversation Africa’ 2016 January 14, 2016

Gade, Christian B.N ‘Restorative Justice and the South African Truth and Reconciliation Process’ (2013) SAJP.


‘Hidden Cruelties: Prison Conditions in Sub-Saharan Africa’


Ibhawoh, Bonny ‘Beyond Retribution: Truth and Reconciliation in South Africa as a universal paradigm for Restorative transitional justice’ (2014) 2 CUJPIA.


Mike, Batley ‘Restorative Justice in South African Context’ (2005).


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[1]A Thompson ‘The meaning of Ubuntu’ (2015) at last accessed on 20 June 2016.

[2] National Institute of Justice ‘Recidivism’ (2014).

[3] Cambridge Dictionaries Online (2016) Cambridge Dictionaries Press last accessed from on 25 June, 2016.

[4] Van Der Merwe, A “A new role for crime victims? An evaluation of restorative justice procedures in the Child Justice Act 2008” (2013) DE JURE 43 accessed on last accessed on 4th August 2016.

[5] Skelton A, Batley M, ‘Restorative justice: a contemporary South African review’, (2008) Acta Criminologica: South African Journal of Criminology, vol. 21, no. 3, pp. 37-51

[6] Ibid.

[7] Daniel W. Van Ness, ‘An overview of restorative justice around the world’ (2005) Centre for Justice & Reconciliation at Prison Fellowship International Washington, DC

[8] H Zehr & A Gohar ‘The little book of restorative justice’ (2003).

[9] Ibid.

[10] last accessed 23 May 2016.

[11] Accessed from last accessed on 13 July 2016.

[12] Op cit note 10.

[13] The Criminal Procedure Act, 51 of 1977.

[14] R v Sussex Justices; Ex parte Macarthy [1924] 1 KB 256 at 259.

[15] The Department of Justice and Constitutional Development “Restorative Justice” last accessed from 15 May 2016.

[16] Ibid

[17] Op cit note 9.

[18] Daniel W. Van Ness, Karen Heetderks Strong, ‘Restoring Justice: An Introduction to Restorative Justice’ (2015) 5th ed at 25.


[20]Op cit note 17.

[21] Op cit note 12.

[22] T Wachtel ‘What is Restorative Justice Practices’ (2012).

[23] Ibid.

[24] Ibid.

[25] South African Human Rights Commission accessed from accessed on 23rd of September 2016.

[26] Op cit note 21.

[27] Op cit note 7.


[29] Op cit note 26.

[30] Ibid.

[31] Ibid.

[32] Op cit note 20.

[33] Ubuntu: Reflections of a South African on Our Common Humanity Barbara Nussbaum REFLECTIONS, Volume 4, Number 4

[34] Ibid.

[35] Op cit note 32.

[36] M Williamson ‘The Law of Divine Compensation’ (2012) Harper Collins Publishers at 4

[37] Op cit note 29.

[38] Op cit note 32.

[39]Op cit note 24.

[40] Op cit note 37.

[41] Op cit note 38.

[42] Op cit note 27 at 6.

[43] Ibid at 9.

[44] Dries Velthuizen ‘The Conversation Africa’ 2016 January 14, 2016 accessed from on 3rd of September 2016.

[45] S v Maluleke 2008 1 SACR 49 (T)

[46] Ibid at 1.

[47] Ibid.

[48] Seedat v S (A547/12) [2015] ZAGPPHC 286; 2015 (2) SACR 612 (GP); [2015] 3 All SA 93 (GP) (12 May 2015) at para 48.

[49] Ibid.

[50] Ibid.

[51] Staff writer ‘South Africa crime stats 2016: everything you need to know’ (2016) accessed from last accessed 1st September 2016.

[52] Ibid.

[53] Op cit note 41 at 86.

[54] Op cit note 27.

[55] W Rodney ‘How Europe Underdeveloped Africa’ (1973) at 4

[56] Op cit note 31.


[58] Op cit note 16.

[59] Ibid.

[60]P Muthapuli ‘History origins and development of the theory of human rights of offenders’ (2008) Chapter 2 45.

[61] Op cit note 43.

[62] Ibid at p 1.

[63] Op cit note 39 at 14.

[64] Public Safety Canada “Restorative Justice in Cases of Serious Crimes” Vol. 10 No. 4 (2005).

[65] Uniform Crime report “Crime in the United States” Violent crimes 2010 last accessed July 11 2016

[66] Constitution of the Republic of South Africa 1996 ‘Courts and Administration of justice’ accessed on 8th September

[67] Supra at note 13.

[68] Op cit note 64.

[69] Sentencing Guidelines: South Africa Accessed from last accessed on 18 September 2016

[70] S v Khumalo 1984 3 SA 327 (A) at 330 D-E.

[71] AJ Ashworth “Criminal justice and deserved sentences,” Criminal Law Review 1989 36 340-55.

[72]Supra at note 67.


[74] accessed on the 4th July 2016.

[75] Op cit note 53.

[76] Op cit note 59.

[77] Op cit note 71.

[78] Op cit note 45.

[79] Ibid.

[80] Ibid.

[81] op cit note 3.

[82] Op cit note 77.

[83] Gerry Johnstone, Daniel W. Van Ness ‘Handbook of Restorative Justice’

[84] Ibid

[85] Op cite note 51 at 9.

[86] ‘Hidden Cruelties: Prison Conditions in Sub-Saharan Africa’ Accessed from accessed on 7 July 2016

[87] R Hopking ‘Filth, disease, sex, violence for Pollsmoor’s female inmates’ Mail&Guardian 4 March 2016.

[88] Ibid.


[90] Ibid.

[91]Library of Congress, ‘Laws on children residing with their parents in prison’ (2015).

[92]Supra at note 5.

[93] Op cit note 41.

[94] Op cit note 37.

[95] Op cit note 43.

[96] Op cit note 38.

[97] Op cit note 24.

[98] Op cit note 49.

[99] S v Shilubane 2008 (1) SACR 295 (T).

[100] Ibid.

[101] Southern African Catholic Bishop’s Conference Parliamentary Liaison Office ‘Mothers and babies in Incarceration’ Briefing Paper 352 (May 2014).

[102] Department of Correctional Services Annual Report 2012-2013 lolnews, 8th March 2014

[103] Ibid.

[104] Ibid.

[105] Op cit note 47.

[106] Op cit note 33.

[107] Ibid.

[108] Op cit note 11.

[109] Ibid.

[110] Op cit note 68.

[111] Supra at note 66.

[112] Ibid.

[113] Ibid.

[114] Op cit note 91.

[115] Ibid

[116] Op cit note 102

[117] Ibid.

[118] Op cit note 101.

[119] Op cit note 2.

[120] Accessed from last accessed on 12 September 2016.

[121] Op cit note 114.

[122] Ibid.

[123] Ibid.

[124] Ibid.

[125] Tiffany Conway & Rutledge Q. Hutson, Parental Incarceration: How to Avoid a “Death Sentence” for Families, 41 CLEARINGHOUSE REV. 212, 213 (2007).

[126] N Michaels, ‘The case for Restorative Justice’ (2015) accessed on on 7 August 2016.


By: Cwayita Bizana

Course: Independent Research essay (LAWS4042)

Degree: Bachelor of Laws (LLB)

Department: Faculty of Law

University: University of the Witwatersrand

Area of Research: Criminal Justice system

Supervisor: Adv Elizabeth Picarra.

Cwayita Bizana
Cwayita Bizana

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