On 18th of September 2019 the Constitutional Court handed down judgment declaring the defence of reasonable and moderate chastisement unconstitutional. The public outcry against the judgment has been widespread and it appears South Africans are not happy with the findings of the apex court.

While this is not the first time there has been public outcry against a decision of the Constitutional Court, it is important that the public is informed of the reasons for the court’s decision.

In reaching its decision the Constitutional Court considered the following sections of the Constitution:

  • Section 12(1)(c) which provides 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.”;
  • Section 10 which provides that “Everyone has inherent dignity and the right to have their dignity respected and protected.”;
  • Section 36 which sets out when, if and how the rights contained in the Bill of Rights may be limited.

In considering Section 12(1)(c) the court found that:

  • South African law defines assault 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.”;
  • The court followed the ordinary dictionary meaning of the word violence, being “behaviour involving physical force intended to hurt, damage or kill someone.”;
  • If the application of force or the threat thereof constitutes assault in South African law, the reference to violence in Section 12(1)(c) therefore must extend to all forms of chastisement, be they moderate or extreme – a smack or a rod.

In considering Section 10 the court found that:

  • In South African law children are constitutionally recognised independent human beings, inherently entitled to the enjoyment of human rights;
  • No matter the degree of chastisement administered, it leaves the recipient with “a sense of shame, a sense that something has been subtracted from one’s human whole, and a feeling of being less dignified that before”. The court acknowledged that this feeling is the same as being held to account for any wrongdoing, such as being found guilty of misconduct or crime.
  • In this context, chastisement undoubtedly impairs the dignity of a child and limits the child’s right to dignity.

In considering whether reasonable and moderate chastisement amount to a permissible limitation of the rights of children in the Bill of Rights, the court found that:

  • Children are the most vulnerable members of society and their best interests are of paramount importance in any decision affecting them.
  • It is the primary responsibility of parents to mould or discipline a child into a future responsible citizen.
  • Many other civilisations and comparable democracies have kept the defence with relatively few abolishing it.
  • Neither International Law nor the Constitution recognise a right to discipline children.
  • It is possible to achieve the purpose of moulding a child into a responsible member of society without causing harm or unduly undermining the fundamental rights of a child. In this regard the court held that positive parenting reduces the need to enforce discipline by resorting to potentially violent methods and can potentially replace them within non-violent discipline. This is demonstrated by the fact that chastisement is used as a last resort in disciplining children.
  • If a disciplinary mechanism exists that is more consistent with love, care, a balanced protection of rights and the advancement of the well-being of a child, it is in the best interests of children that such mechanisms be preferred over chastisement.

After considering all the above and noting that insufficient evidence was provided to the court for it to consider whether chastisement is beneficial to children, the Constitutional Court concluded that the defence was unconstitutional.

It now Parliament’s responsibility to design a framework to deal with the issue going forward, after considering all relevant inputs, including from parents and children.

As divisive as the issue may be, the Constitutional Court’s judgment is well reasoned and correctly protects children’s rights in South Africa. In a country with a particularly violent history, where violence against women and children is rife, it appears to be time for society to remove violence from our foundational upbringing.

Ian Mc Laren

Ian Mc Laren

Ian McLaren BA LLB (WITS) General Educated St Johns College, Houghton. BA LLB University of the Witwatersrand 1984 Founded McLarens Attorneys September 1986. Right of Appearance High Court, October 1996. Expertise Litigation, Labour Law, Commercial Law, Family Law, Pension and Provident Funds, Customs and Excise, Wills, Deceased Estates, Trusts, Commercial Agreements, Reviewing and Drafting Government Legislation, Information Technology. Committees/ Trusts Law Society of South Africa Information Technology Committee. Trustee Verney College Educational Trust Other Transvaal Provincial colours for Practical Shooting. Third degree Black Belt JKS Karate. Photographer and motor cyclist Lectured for Continuing Legal Education on Information Technology issues.