Masters Degrees (Public Law)

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Browsing Masters Degrees (Public Law) by browse.metadata.advisor "Madonsela, Thuli"

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    Restoring justice : examining the use of restorative justice sentencing practices in cases of gender-based violence offences
    (Stellenbosch : Stellenbosch University, 2023-03) Sydenham, Sarah; Madonsela, Thuli; Stellenbosch University. Faculty of Law. Dept. of Public Law.
    ENGLISH SUMMARY : Gender-based violence (“GBV”) has reached pandemic proportions in South Africa and poses a direct threat to the human rights of every individual it impacts.1 This thesis sets out the potential restorative justice has to restore the human dignity of GBV survivors. The restoration of human dignity in response to crime is shown in this thesis to be an integral part of the transformative constitutional vision. This thesis explores the potential restorative justice has to restore the human dignity of GBV survivors in court. This thesis outlines the theory of restorative justice as conceptualised in Western academic literature as well as in traditional African legal culture. The link between restorative justice and the value of ubuntu is explored and an understanding of restorative justice theory grounded in the value of ubuntu is established. Some of the strongest challenges to the use of restorative justice in cases of GBV come from certain feminist legal theorists. These challenges must be explored to enable an application of restorative justice which is sensitive to the context of GBV. The approaches of various strands of feminist legal theory are examined to find a lens which is able to guide the application of an ubuntu-based restorative justice approach to cases of GBV. The theoretical framework of this thesis consists of an ubuntu-based approach to restorative justice, guided by an intersectional and ubuntu feminist lens. This theoretical framework is then used to analyse restorative justice jurisprudence to establish whether courts have taken an adequately victim-centric approach in the cases identified. The analysis determines whether the courts can restore the complainants’ human dignity in each of the cases by awarding them both material and symbolic restitution. This thesis works from the hypothesis that courts have not adequately centred victims of crime, particularly GBV survivors, in the application of restorative justice. The Constitutional Court and Supreme Court of Appeal have held that the crime of rape degrades the rights of victims, particularly the right to human dignity, and that courts have a duty to protect these rights.2 This thesis investigates the extent to which courts have actively prioritised the restoration of the complainant’s human dignity when applying restorative justice in sentencing practices. Restorative justice cases have been identified as worthy of investigation because of the way victims and their restitution are centred under a restorative paradigm. This thesis finds that courts have not adequately centred complainants and their restitution when applying restorative justice in cases of GBV.