12 Jan Reasonable and moderate chastisement declared Unconstitutional
Reasonable and moderate chastisement declared unconstitutional: is it the beginning of the end of violence against children under the guise of religion and culture or is it interference by the state on parenthood?
Until recently, the discipline of children by their parents in their homes was allowed in South Africa, provided such discipline or chastisement was moderate and reasonably justified. This was a common law defence for a charge of assault on a child by a parent.
The Constitutional Court (ConCourt) changed this position on corporal punishment in the case of Freedom of Religion South Africa v Minister of Justice and Constitutional Development and Others  ZACC 34 where it ruled that the common law defence of reasonable and moderate chastisement is unconstitutional as it unjustifiably violates section 10 of the Constitution of the Republic of South Africa, which states that “everyone has inherent dignity and the right to have their dignity respected and protected” and section 12 (1)(c) thereof which states that “everyone has the right to freedom and security of the person, which includes the right to be free from all forms of violence from either public or private sources.” As part of the ConCourt’s reasoning it found that the right to be free from all forms of violence from both public and private sources includes violence in the form of reasonable and moderate chastisement.
It was argued by the Freedom of Religion South Africa (FORSA) organisation that this ruling could infringe on the parents constitutional rights to parental care and religion but the view of the Minister of Justice along with the Children’s Institute, Sonke Gender Justice and the Quaker Peace Centre differs on the basis that they believe that corporal punishment unjustifiably restricted a child’s right to, inter alia, dignity, equal protection of the law, freedom from violence, not to be discriminated on the basis of age, degradation including bodily and psychological integrity.
The question that arose before the ConCourt was whether the aforesaid common law defence violates section 10 and section 12(1)(c) of the Constitution and if so, is the violation justifiable under the limitations of rights in terms of section 36 of the Constitution. The question then arises as to what is reasonable and moderate chastisement. To determine the answer, reasonable and moderate chastisement would have to be placed in a criminal law setting where it would amount to a form of assault. Assault is defined by Burchell and Milton in Principles of Criminal Law, as the unlawful and intentional application of force to the person of another or inspiring a belief in that person that force is immediately to be applied as threatened. Parents almost always use some form of physical violence to chastise their children with the idea that it will assist them in distinguishing right from wrong. It was concluded that no matter the form of chastisement, there is an intentional application of force on the child which constitutes an assault against the child. As a result of the failure of FORSA to prove that there may be other non-violent disciplinary forms and taking into account the application of section 36 of the Constitution, the ConCourt concluded that the common law defence is unjustifiable.
According to the Birth to Twenty Plus cohort study, physical punishment is widely practised in South Africa with nearly 60% of parents reporting that they spank their children. The manner in which a parent exercises such discipline is also deeply embedded in their culture and religion and this is problematic as some parents may hide behind their cultural and religious principles to conceal child abuse. Exposure to such abuse can have severe negative consequences for children which includes extended periods of stress, depression and disruptive behaviour which affect their overall performance at school and social adjustment with others. Such children may also become violent as they grow as it would appear to them to be the norm of everyday living.
With the aforesaid ruling prohibiting corporal punishment, South Africa’s children’s rights have been strengthened and brought in line with the international move to take appropriate legislative measures to protect children from all forms of physical and mental violence. It is imperative to note that the ConCourt’s ruling is not an attempt to interfere with how parents should raise their children or to hold them criminally accountable but it is there to protect the best interests of children as intended by section 28 (2) of the Constitution which states that “a child’s best interests are of paramount importance in every matter concerning the child” and to curb violence against children. Although the common law defence is now abolished, the ConCourt did not restrict parents from disciplining their children as they are enjoined to do in accordance with their religion, the ruling merely prevents parents from administering corporal punishment by using violence on children.
The ConCourt’s new ruling on corporal punishment offers an opportunity for the Children’s Act to be harmonised with the Constitution and to be developed in such a way so as to encourage parents to find more positive forms of disciplining their children which will allow their children to grow up as responsible adults and to make a significant and positive contribution to society.