As of September 2019, it was found by the Constitutional Court that the act of chastisement upon your child along with the common law defence of 'reasonable and moderate parental chastisement' is inconsistent with the provisions of certain constitutional rights.

The Judgment was passed down by the Constitutional Court in the case of Freedom of Religion South Africa v Minister of Justice and Constitutional Development and Others [2019] ZACC 34 ("Freedom of Religion") in respect of an application challenging the aforementioned common law position.

Factual Background

The case originated in the Johannesburg Magistrate's Court where it was found that the father of a 13-year-old boy was guilty of common assault and subsequently imprisoned. In this case, the father was not able to rely on the defence of 'reasonable and moderate chastisement' as the assault was of such a degree that the defence would not have been justifiable.

The matter was taken on appeal to the High Court. The High Court found the defence of 'reasonable and moderate chastisement' to be unconstitutional. Parents who were charged with assault in respect of their children were therefore, no longer able to rely on this defence. However, the decision of one High Court of South Africa does not bind all remaining divisions in the Republic. This therefore brought about the application by Freedom of Religion (an organisation that endeavours to protect and promote the constitutional right to freedom of religion), who acted as an amicus curiae, to the Constitutional Court.

Bypassing the Supreme Court of Appeal

It is trite law that matters appearing before various courts on appeal have a process to follow. In instances where the interpretation of Common Law is to be undertaken, the standard course is for the Supreme Court of Appeal (“Supreme Court”) to preside over the matter. However, the application brought in the current matter was brought by way of section 167(6)(b) of the Constitution. Accordingly, in Freedom of Religion, the Court found it necessary to provide an explanation as to why the bypassing of the Supreme Court was granted. The case of Zondi v MEC for Traditional and Local Government Affairs [2004] ZACC 19 ("Zondi") was cited where it was  held that "under these provisions, this Court has discretion whether to grant direct access, but an application will only be granted if it is in the interests of justice to grant it.  The question of whether it is in the interests of justice to grant direct access must be decided in the light of the facts of each case. In this regard, this Court will consider a range of factors. These include the importance of the constitutional issue raised and the desirability of obtaining an urgent ruling of this Court on that issue, whether any dispute of fact may arise in the case, the possibility of obtaining relief in another Court, and the time and costs that may be saved by coming directly to this Court."

The Court in Freedom of Religion subsequently held that "the administration of reasonable and moderate punishment by parents on their children has been declared unconstitutional by the High Court. That declaration, though not relating to legislation, is just too close and similar in character to declarations of unconstitutionality relating to legislation, to render the bypassing of the Supreme Court of Appeal excusable." In essence, the Court found that the possible unconstitutionality of ‘reasonable and moderate’ chastisement is so great against the right to dignity and the right to be free of all forms of violence that it excuses the bypassing of the Supreme Court.

The right to be free from all forms of violence and the right to dignity

In the current case, the Court's main focus was; the right to dignity and the right to have their dignity respected and protected; and the right to freedom and security of the person, which includes the right to be free from all forms of violence from either public or private sources.

In respect of section 12(1)(c), the Court relied on the ordinary meaning of the word 'violence'. The Court was then of the opinion that because 'reasonable and moderate chastisement' constitutes assault in the most basic sense, it too then constitutes 'violence' as to be interpreted in respect of section 12(1)(c). It is interesting to note that while any person who committed the act of 'reasonable and moderate chastisement' on a child not of their own, would be guilty of assault, a parent committing the same act can justify this with the common law defence. Considering that the same act would ordinarily constitute assault, it should go to say that the impact that such an act has on a child would be the same, or in fact greater if committed by the parent of that child.

In respect of section 10, the Court relied on the case of S v M [2007] ZACC 18 to give regard to the importance of a child’s section 10 right. S v M held that “every child has his or her or her own dignity. If a child is to be constitutionally imagined as an individual with a distinctive personality, and not merely as a miniature adult waiting to reach full size, he or she cannot be treated as a mere extension of his or her parents, umbilically destined to sink or swim with them. . .” Therefore, when applying the act of ‘reasonable and moderate chastisement’ against section 10, a child’s dignity is infringed upon.

The justifiability of 'reasonable and moderate chastisement'

As with all rights contained in the Bill of Rights, it must be determined whether the act committed against a right justifies the infringement of a particular right. As the Common Law defence of 'reasonable and moderate chastisement' is a law of general application, the application of same would be able to limit the rights in the Bill of Rights subject to all the further requirements set out in Section 36 of the Constitution. This is where it must be determined whether this defence is a valid and constitutionally accepted defence against the act being construed as assault.

In Freedom of Religion, the Court held that "To retain this kind of chastisement, it would have to be demonstrated that apart from the fact that it ordinarily falls within the category of assault, there is something about it that advances the best interests of the child. In other words, there must be something about this excusable crime of assault that evidently redounds to the good of the child."

The Court gave due consideration to section 36 of the Constitution and held that the right one has to be free of all forms of violence, to be treated with dignity as well as the fact that there are less restrictive means to enforce discipline, does not provide the relevant justification..

The Judgment

After the consideration of section 36, the Court in Freedom of Religion stated that "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."

Conclusion

The fact that an act that would constitute assault was lawfully acceptable by using the common law defence 'reasonable and moderate chastisement' raises some concern. It appears that assault would ordinarily constitute a criminal offence was justifiable if it is committed by the persons that are supposed to protect the child from any harm.

It has now been determined that this Common Law offence is unconstitutional, it is however yet to be seen whether the decision mitigates the number of child abuse victims. While it is a step forward to alter the law to ensure the child's rights are being upheld, it must be acknowledged that it is not enough to simply change the law; it is also important to ensure that such changes are being enforced.

A point must be made however, that Courts must be mindful of the fact that false cases can be brought before the Court if the child, not understanding the full effect of a Judgment against their parent, can use this change in a malicious manner. It appears that going forward, cases will have to be judged on their own merits and that the utmost consideration must be given to the allegations made.

Written by Kathleen Mukheibir, Candidate Attorney, Schoeman Law