South Africa 2017 High Court judgment

Unconstitutionality of the common law defence of “reasonable chastisement” – 19 October 2017, YG v. The State, High Court of Gauteng Local Division, Case No. A263/2016

The High Court of Gauteng declared the common law defence of ‘reasonable chastisement’ to be unconstitutional, particularly in light of articles 9, 10, 12 and 28 of the 1996 Constitution. This decision of unconstitutionality is not retrospective: it is effective from the date of the judgement onwards.

The case was brought by a father who was found guilty of common assault against his son and who appealed the decision, referring to his right of ‘reasonable chastisement’. In South Africa, the common law recognises a defence to the charge of assault for parents who use force to discipline their children, provided this falls within the bounds of “moderate or reasonable chastisement”.

The Court found that it was “in the interests of justice” for the Court to decide on the constitutionality of the defence, in order to clarify the effect of this common law defence on criminal law and to ensure consistency between the provisions of the Constitution – in particular those upholding children’s rights and the principle of the best interests of the child – and the common law. To ensure all views were heard, the High Court invited submissions from all interested parties.

The Court stated that the parental “right” to exercise “moderate or reasonable” chastisement, as recognised in common law, ignores children’s constitutionally guaranteed rights to be protected from all forms of violence from public or private sources and to respect to their bodily and psychological integrity (art. 12), to respect for their dignity (art. 10), to equal protection under the law (art. 9), and to be protected from maltreatment, neglect, abuse or degradation (art. 28).

According to the Court, these rights cannot be limited by a traditionally-recognised ‘right’ of parents to physically discipline their child, nor by a religious belief in the ‘need’ to use corporal punishment to discipline children.

The judgment states:

It is time for our country to march in step with its international obligations under the CRC by recognising that the reasonable chastisement defence is no longer legally acceptable under our constitutional dispensation. In doing so we will hardly be at the forefront of legal developments in the international community. Almost half of African states have either [abolished] corporal punishment in full (i.e. including in the home) or have expressed a clear commitment to doing so. South Africa is one of those that has made the commitment although (…) the process of doing so through legislation is not well advanced. The courts have a duty to take the necessary steps to develop the common law where it infringes constitutional rights.”

 

Subsequent law reform

The Government of South Africa is yet to react to this High Court decision. It had previously expressed a commitment to prohibition of all corporal punishment of children. In fact, the Department of Social Development (DSD) sent in written submissions to the High Court, supporting the view that reasonable chastisement was incompatible with the Constitution and referring to a draft policy promoting a ban on corporal and humiliating punishment of children in all settings, together with the promotion of positive discipline.

Corporal punishment in South Africa is still lawful in the home. A Children’s Third Amendment Bill was drafted in 2015 to explicitly repeal the common law defence of reasonable chastisement and prohibit all corporal punishment of children – it is yet to be tabled in Parliament.

 

Further information

  • The full text of the judgment is available here.
  • For further information on subsequent law reform to prohibit all corporal punishment of children, see the Global Initiative country report for South Africa.
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