n Acta Criminologica: Southern African Journal of Criminology - Doing justice differently : prosecutors as 'gate-keepers' of restorative justice

Special Edition 1
  • ISSN : 1012-8093


Extraordinarily high rates of violent crimes in South Africa clearly suggest that restorative justice should not replace current penal law and procedure. Whether restorative processes can and should inform a greater proportion of justice system activity is a matter open for discussion. Currently, restorative justice programs complement rather than replace the existing criminal justice system. Restorative justice interventions are being adopted at various stages of the criminal justice process : pre-charge; prosecution level (post charge but before trial; at the court level (either at the pre-trial or sentencing stage) and post-sentence (as an alternative to incarceration as part of or in addition to a non-custodial sentence, during incarceration or upon release from prison). Since screening and/or referral to restorative justice processes takes place at some stage after arrest, the success of restorative justice initiatives at the pre-trial phase is dependant not only on the voluntary participation of victim/s and offender/s involved in the crime but also on the knowledge, understanding and support of officials ((police, prosecutors and magistrates) proposing restorative justice options. Prosecutors therefore, may be deemed 'gatekeepers' of restorative justice; potentially exerting a huge influence on the administration of justice. In the absence of legislation, they exercise considerable discretion in determining which cases are suitable for the application of restorative approaches. The first in a series of studies on restorative justice in KwaZulu-Natal, this paper showcases selected findings of an exploratory study on knowledge, training and actual adoption restorative justice approaches by prosecutors in the province. The study covered a wide geographical area (urban, peri-urban and rural areas) by incorporating courts from the province's six justice clusters. Even though "criminal courts present enticing opportunities to criminological researchers", access is always a challenge (Baldwin, 2000:237-238). To overcome this difficulty, the study opened up opportunities for ingenuity, inventiveness and imagination. An analysis of prosecutors' transforming roles in the criminal justice system provides useful insights on the way forward for the Department of Justice and Constitutional Development generally, and the National Prosecuting Authority, more specifically.

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