On 18 September 2019, the Constitutional Court dealt a lethal blow to the use of physical force when disciplining children. In Freedom of Religion South Africa v Minister of Justice and Constitutional Development and Others  ZACC 34, the matter began as a trial of assault with intent to do grievous bodily harm in the Johannesburg Magistrate’s Court. A father decided to discipline his son physically when he found him watching pornographic material and meted out the discipline in the form of kicking and punching. This led to the father being convicted of common assault.
Aggrieved by the outcome, the father lodged an appeal to the South Gauteng High Court. The High Court took it upon itself (without the issue being pleaded) to decide whether the validity of the common law defence permitting parents to chastise their children moderately and reasonably was constitutionally valid. The High Court, per Keightley J, declared the defence to be constitutionally invalid and therefore prospectively unavailable to parents charged with the offence of assault upon their children. This decision was then appealed to the Constitutional Court.
The Con Court, per Mogoeng CJ, elected to resolve the issue on the basis of Section 12(1)(c) of the Constitution which provides that “Everyone has the right to freedom and security of the person, which includes the right … (c) to be free from all forms of violence from either public or private sources.” The Court also referred to Section 28(2) of the Constitution, which provides that “[a] child’s best interests are of paramount importance in every matter concerning the child.”
The Court noted that parents have over the years enjoyed the right to discipline their children in a variety of ways, including the administration of moderate and reasonable chastisement. This right is regarded as an incident of the enjoyment of the constitutional right of freedom of religion or culture. However, in the view of the Court, what militated against the defence of moderate and reasonable chastisement was that it could not be demonstrated to be in the best interests of the child, especially when there is an effective non-violent option available.
The Court concluded that any form of violence against a child, including reasonable and moderate chastisement, is a criminal assault and that the High Court was therefore correct in its conclusion that the common law defence of reasonable and moderate chastisement is constitutionally invalid.
The sweeping nature of this finding leaves many questions unanswered. First, if every slap of a wayward child is a criminally prosecutable offence, will special courts be set up to deal with the rash of prosecutions that will inevitably follow? Second, in the absence of a serious incursion into a child’s wellbeing, is it the role of the state to interfere with the authority of parents in raising their children? Burchell and Hunt, authors of South African Criminal Law and Procedure 3 ed, explain that “the law has traditionally conceded to parents a uniquely independent authority in rearing children. This meant that the State did not interfere in the exercise of the rights, duties and responsibilities of the parent.” In South Africa’s post constitutional era, it is questionable whether the State, with its notoriously inadequate resources and ineffective methods of prosecution, will do a better job of overseeing the wellbeing of children than their own parents.
Ivor Heyman is an advocate at the Johannesburg Bar. He publishes articles of interest to attorneys and their clients. For questions or comments you can reach him at firstname.lastname@example.org or 061-120-8740.