On 18 September 2019, the Constitutional Court of South Africa ruled that the common law defence of ‘reasonable and moderate chastisement’ was unconstitutional, effectively banning all corporal punishment of children. Along with the Children’s Institute, the Peace Centre, Sonke Gender Justice, the Centre for Child Law, the Parent Centre and the Dullah Omar Institute for Constitutional Law, Governance and Human Rights, the Global Initiative was amicus curiae in the case.
The Court found that:
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.”
The judgment highlighted the research which shows that all corporal punishment is potentially harmful and part of a wider circle of violence, and recognised South Africa’s “history of widespread and institutionalised violence”. It found that, in light of the existence of alternative non-violent methods to achieve the same goal of raising a responsible member of society, it was in children’s best interests to abolish the defence of ‘reasonable and moderate chastisement’.
Under South Africa’s common law system, this decision from the Constitutional Court is equivalent to repealing the defence in legislation. As there is no similar defence in legislation, criminal provisions against assault now apply equally to children. The President of South Africa and the Department of Social Development have welcomed the judgment and pledged to strengthen South Africa’s policy efforts towards the promotion of positive parenting. These efforts should be strengthened by also enacting an explicit prohibition of corporal punishment in legislation. The draft Children’s Third Amendment Bill is currently under discussion and includes provisions on child discipline, which provide the Government with a timely opportunity to showcase their commitment to strengthen and enforce the ban.
The Global Initiative welcomes this unanimous decision by the Constitutional Court and congratulates all the campaigners in South Africa who have worked for years towards this outcome. With this judgment, South Africa becomes the 57th state worldwide and eighth African state to prohibit all corporal punishment of children. As we near the 30th anniversary of the UN Convention on the Rights of the Child and fifth anniversary of the Agenda for Sustainable Development 2030, the Global Initiative calls on all states to join South Africa, France and Kosovo in prioritising children’s rights and giving them equal protection under the law from all forms of violence.
- Find more information on South Africa in our detailed report
- Read our detailed summary of the Constitutional Court judgment
- Read our joint statement with our South African partners
- See the latest facts and figures on global progress towards prohibition on our countdown page
- Visit our Get involved page to learn how you can support the campaign to protect all children from corporal punishment