The apellant pleaded guilty to unlawful sexual intercourse with a girl under the age of 16 years.

This 2011 South African Supreme Court of Appeal case recognises that if restorative justice is not appropriately balanced by other considerations it may lose its credibility as a sentencing option. The Supreme Court of Appeal held that, while restorative justice is a ‘viable sentencing option’, on these facts restorative justice was inappropriate. 

Bosielo JA said in Thabethe (para. 20)

I have no doubt about the advantages of restorative justice as a viable alternative sentencing option provided it is applied in appropriate cases. Without attempting to lay down a general rule I feel obliged to caution seriously against the use of restorative justice as a sentence for serious offences which evoke profound feelings of outrage and revulsion amongst law-abiding and right-thinking members of society. An ill-considered application of restorative justice to an inappropriate case is likely to debase it and make it lose its credibility as a viable sentencing option. Sentencing officers should be careful not to allow some over-zealousness to lead them to impose restorative justice even in cases where it is patently unsuitable. It is trite that one of the essential ingredients of a balanced sentence is that it must reflect the seriousness of the offence and the natural indignation and outrage of the public.

 

 

 

 

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