By Megan Brook and checked by Jayna Hira
Main issue
The constitutional validity of reasonable and moderate chastisement by a parent to their child.
Background
The matter began as a trial of assault with intent to do grievous bodily harm in the Johannesburg Magistrates Court whereby a father abused his 13 (thirteen) year old son for watching pornography and was convicted of common assault. The father appealed to the High Court with the court, on its own accord, declaring the defence of moderate chastisement constitutionally invalid and unavailable to parents charged with the offence of assault upon their child. Owing to the fact that any application of force constitutes “assault” in our law, this was previously an effective defence for parents administering it to their children throughout South Africa, except Gauteng.
None of the parties before the High Court challenged the declaration of invalidity except Freedom of Religion South Africa (“the Applicant”), who was initially an amicus curiae (friend of the court) in the High Court. The Applicant argued that although it was previously just an amicus curiae, it was acting in the interest of the public and thus had standing. The court opined that being a friend of the court and subsequently transitioning to a party at an appeal stage is, at times, permissible on the considerations of justice and that the association acted on behalf of the general body of parents and children in our country. This, coupled with its involvement in the High Court, granted the Applicant standing to bring an appeal application to the Constitutional Court.
The above was sought by the Applicant in relying on section 167(6)(b) of the Constitution of the Republic of South Africa, 1996 (“the Constitution”) which enabled it to do so “in the interests of justice.” The court found it necessary to mention that litigants could not ordinarily bypass the Supreme Court of Appeal but provided that, in this instance, the seriousness and far-reaching implications of the unconstitutionality in this matter justified a departure from the usual route. It stated that arguable points of law of general public importance were raised which ought to be dealt with. Moreover, that certainty and finality was required urgently, considering that parents discipline their children daily.
In the Constitutional Court, the Applicant sought to protect the common law defence of chastisement. In determining its constitutionality, the court began by assessing its effect on the right “to be free from all forms of violence from either public or private sources” as per section 12 of the Constitution. The court considered the language of section 12 and stated that the reference to “violence” is all-encompassing and extended to all forms of chastisement, moderate or extreme, as these entailed a measure of violence with the objective to cause fear, displeasure or hurt. The court provided that in view of our history of widespread violence, the mischief section 12(1)(c) sought to address was not only certain or some forms of violence, but all forms. Accordingly, the chastisement of a child met the threshold prescribed in section 12(1)(c) and limited the right therein.
The court then turned to the right to dignity in section 10 of the Constitution and emphasised how children are independent human beings entitled to the right to dignity. The court stated that there was a sense of shame, and a feeling of being less dignified than before, that came with the administration of chastisement of whatever degree. Accordingly, the court pronounced that moderate and reasonable chastisement did in fact impair the dignity of a child and limited his or her section 10 Constitutional right.
In light of the foregoing, the court then embarked on a justification analysis in terms of section 36 of the Constitution. In assessing the nature, purpose and importance of the limitation, the court acknowledged how chastisement, as administered by a loving parent, came out of the responsibility of raising a child into a future responsible citizen. Further, that disallowing this defence would limit some parents’ ability to discipline their children in terms of the prescripts of their faith or culture. The court stated that properly managed chastisement could arguably yield positive results.
In terms of the nature of the affected interests and rights, the court explained that children were the most vulnerable group and that the judiciary were bound to section 28(2) of the Constitution which provided that a child’s best interests are of paramount importance in every matter concerning the child. In assessing the extent of the limitation and its relation to purpose, the court stated that the right to freedom of religion did not expressly provide for parental entitlement to administer moderate chastisement to the child, nor did any provision of the Constitution acknowledge the existence of a cultural right to the same effect. The court further stated how positive parenting reduced the need to enforce discipline by resorting to potentially violent methods and could be replaced with non-violent strategies for discipline like positive commands, tangible rewards and problem-solving. Lastly, in terms of less restrictive means to achieve purpose, the court provided that the availability of less restrictive means to achieve discipline, and how traditionally chastisement was employed as a last resort, undermined the argument for its defence.
Court held
The court held that the right to be treated with dignity, and to be free from all forms of violence, as well as the availability of less restrictive means, spoke against the preservation of the common law defence of chastisement. It therefore concluded that there was no justification for its continued existence. As a result, the finding of the High Court was held to be correct and the common law defence of reasonable chastisement unconstitutional.
Value
The chastisement of a child is unconstitutional and can attract adverse legal consequences.
Meta Description
Application for leave to appeal to the Constitutional Court was dismissed and the common law defence of “reasonable and moderate parental chastisement” declared unconstitutional and inconsistent with section 10 and 12(1)(c) of the Constitution.
Focus Keywords
Minor, assault with intent to do grievous bodily harm, common law, chastisement, reasonable and moderate chastisement, best interests of the child, criminal law, leave to appeal, justification analysis, section 36, section 10, section 12(1)(c), religion, constitutional court, amicus curiae.
Tags
Minor, assault with intent to do grievous bodily harm, common law, chastisement, reasonable and moderate chastisement, best interests of the child, criminal law, leave to appeal, justification analysis, section 36, section 10, section 12(1)(c), religion, constitutional court, amicus curiae.
