A New Paradigm of Vengeance and Healing: Can the mechanism of restorative justice be utilized to pursue alternative punishments for offences involving domestic violence?

Morris, Chloe

A New Paradigm of Vengeance and Healing: Can the mechanism of restorative justice be utilized to pursue alternative punishments for offences involving domestic violence?

Thesis / Dissertation

2026

Publisher

University of Cape Town

Department

Centre for Law and Society

Faculty

Faculty of Law

Abstract

Recent amendments to the Domestic Violence Act (14 of 2021) and criminal procedure have the effect of increasing the likelihood of pre-trial detention of an alleged perpetrator and that of harsher carceral sanctions imposed in terms of sentencing of up to five years direct imprisonment by a district court Magistrate. This has led to mediations of family violence being prohibited by a directive from Parliament. Further amendments to criminal procedure instruct that certain instances of domestic violence now form part of the offences flagged for ‘minimum sentencing.' In light of these punitive moves, this thesis aims to ascertain the potential for a sentencing paradigm shift in response to current retributive sentencing practices to enable rehabilitation and reintegration of the offender as well as the healing and restoration of the victim. Despite rich policy papers, case law and extensive literature made available by those advocating for restorative justice as an alternative punishment there appears to be a gap in our understanding of the procedural challenges confronting legal practitioners - in realising restorative aims in the highly politically charged context of family violence. Through a close engagement with a selection of current policy papers coupled with detailed qualitative interviews with current South African magistrates, public prosecutors and restorative justice stakeholders, this thesis aims to contribute to writings on alternative forms of punishment and alternatives to punishment in the context of family violence in the criminal courts. The empirical work was conducted through qualitative semi-structured interviews with public prosecutors and magistrates in their professional capacity who administer court processes in terms of the Criminal Procedure Act (51 of 1977), the Domestic Violence Act (116 of 1998) and the Domestic Violence Amendment Act (14 of 2021), as well as restorative justice stakeholders working with sentenced prisoners in Pollsmoor. The findings show a crucial need to differentiate between ‘common couple violence' and ‘domestic terrorism'. This is a distinction made by restorative justice practitioners which is not made by legal practitioners who are the decision-makers regarding the institution and outcome of such proceedings. The frustrations aired by legal practitioners can be effectively responded to through dialogue with the restorative justice practitioners to establish avenues for rehabilitation and reintegration of offenders as well as restitution and healing for their victims and communities. Core themes in the empirical material illuminated that crimes hurt, and that justice involves healing and restoration for the victims and requires rehabilitation and reintegration of the offender which our current carceral system is unable to achieve. The findings contribute to the theoretical writings on restorative justice through providing guidelines for alternative interpretation of existing legislation to implement restorative justice objectives as well as highlighting the need for future research on the role of criminal law in family disputes.