On 19 October 2017, the High Court of Gauteng ruled that the common law defence of “reasonable or moderate chastisement” breaches children’s rights under the 1996 Constitution and, as such, is unconstitutional. In South Africa, the common law has, until now, recognised 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 held that children’s rights to be protected from violence, to respect for their dignity and to equal protection under the law could not 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. This ruling does not create a new criminal offence: it gives children the same protection from assault as adults by removing the defence of “reasonable chastisement”.
Although each party to the case can apply for leave to appeal within 14 days of the ruling, the decision of unconstitutionality does not need to be confirmed by the Constitutional Court. It is effective in common law from the day of the ruling.
The Global Initiative welcomes this very positive step towards the realisation of children’s right to be protected from all forms of violence. This decision to remove the common law defence should now be confirmed in legislation clearly prohibiting all corporal punishment of children, including in the home, in line with the Government’s international human rights obligations and its previous commitment to enacting full prohibition. The Government of South Africa is urged to enact prohibiting legislation as a matter of priority, with an immediate opportunity to be found in the Children’s Third Amendment Bill.