South Africa 2019 Constitutional Court judgment
Unconstitutionality of the common law defence of “reasonable chastisement” – 18 September 2019, Freedom of Religion South Africa v Minister of Justice and Constitutional Development and Others, Constitutional Court, ZACC34
In a judgment handed down on 18 September 2019, the Constitutional Court confirmed a 2017 decision by the High Court of Gauteng which had found the common law defence of ‘reasonable and moderate chastisement’ to be unconstitutional. This notion provided a defence to parents who may have been charged with assault without it, if this assault was “reasonable and moderate” and done for the purpose of disciplining their child.
To come to this conclusion of unconstitutionality, the Court examined article 12(1)(c) of the 1996 Constitution which guarantees people’s right to be “be free from all forms of violence from either public or private sources”. The judges found that the common definition of “violence” as “behaviour involving physical force intended to hurt, damage or kill someone, or something” was to be favoured in the interpretation of the article. Applying this definition to corporal punishment, the Court found that:
The objective is always to cause displeasure, discomfort, fear or hurt. The actionable difference all along lay in the extent to which that outcome is intended to be or is actually achieved. Since punishment by the application of force to the body of a child by a parent is always intended to hurt to some degree, moderate and reasonable chastisement indubitably amounts to legally excusable assault. And there cannot be assault, as defined, without meeting the requirements of "all forms of violence" envisaged in section 12(1)(c) of the Constitution."
The judgment highlighted that there was a “history of widespread and institutionalised violence” in South Africa, which article 12 of the Constitution aimed at reducing and ultimately eradicating. Turning to article 10 of the Constitution on the right to human dignity, the Court found that there was a “sense of shame (…) that comes with the administration of chastisement to whatever degree”.
The Court then examined whether a restriction of those rights may be reasonable in light of other criteria. It highlighted that, under article 28(2) of the Constitution, a “child’s best interests are of paramount importance in every matter concerning the child”, and that there was no opposing provision of a parental right to administer moderate and reasonable chastisement. In light of the research which shows that all corporal punishment is potentially harmful to the child, and of the existence of non-violent alternatives to achieve the same goal of raising a responsible member of society, it was decided that it was in the child’s best interests for the latter to be preferred:
The right to be free from all forms of violence or to be treated with dignity, coupled with what chastisement does in reality entail, as well as the availability of less restrictive means, speak quite forcefully against the preservation of the common law defence of reasonable and moderate parental chastisement. There is, on the material before us, therefore, no justification for its continued existence, for it does not only limit the rights in sections 10 and 12 of the Constitution, but it also violates them unjustifiably.”
Subsequent law reform
The President of South Africa and the Department of Social Development have welcomed this unanimous judgment, pledging to strengthen South Africa’s policy efforts towards the promotion of positive parenting.
Prohibition should also be enacted in legislation. As of September 2019, a Children’s Third Amendment Bill is under discussion; the current draft including includes provisions on the discipline of children. This provides a timely and clear opportunity for the Government to harmonise domestic legislation with the Constitution.