In times where women and children abuse has been squarely in the spotlight, the Constitutional Court also declared the common law defence of reasonable chastisement to be unconstitutional.

This issue has a long history going back to the early Roman law when the power of the paterfamilias as head of the family included the right of life and death. That was moderated in later Roman law and even in our jurisdiction for many years a husband retained the right to inflict moderate personal chastisement on his wife, apprentices and children. Our law has developed to the point that moderate and reasonable chastisement of children only constituted a lawful defence for parents who had been charged with assault. The justification for this defence was found in the close connection that was believed to exist between the need for reasonable chastisement in the execution of parents’ rights and duties in educating and raising their children.

It was inevitable that this issue would be challenged in our constitutional democracy but surprising that it took more than 20 years for that challenge to come. In 2017, in the case of S v YG 2018 (1) SACR 64 (GJ), the Gauteng High Court found that the defence of reasonable chastisement is unconstitutional as it infringes on (amongst others) s12 of the Constitution of South Africa which protects the freedom and security of the person.

That judgment went on appeal to the Constitutional Court which had to decide, in essence, whether chastisement is a form of violence as envisaged in s12(1)(c) of the Constitution which provides that:

“Everyone has the right of 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 considered that chastisement involves, by definition, the causing of displeasure, discomfort, fear or hurt and that the actual or potential hurt that flows from physical chastisement is believed to have a greater effect than other reasonably available methods of discipline. Section 12(1)(c) addresses all forms of violence, and the Constitutional Court found that chastisement (moderate or not) is a form of violence and infringes on a child’s s12 right. The vulnerability of children coupled with the availability of less restrictive means for disciplining children were strong arguments motivating the Constitutional Court to find that there is no place in our law for the defence of reasonable chastisement.

Where does this leave us practically? Self-evidently, parents can no longer rely on the concept of reasonable chastisement to justify physical discipline of their children. There remains the rule in our law of de minimis non curat lex which is that the law is not concerned with trifles which could help parents escape criminal punishment for physically chastising their children provided that the incident is patently trivial. The rule does not necessarily exclude a criminal conviction but could see no sanction applied. Given the risk of criminal punishment and indeed even a conviction, this is probably not an area of law that parents should test.

The Constitutional Court acknowledges the practical difficulties which now face law enforcement agencies in dealing with this development and the Court has suggested that Parliament considers an appropriate framework. Unfortunately, even if Parliament is able to craft practically workable legislation, enforcement of the prohibition of reasonable chastisement falls again on an overstretched and under resourced police force.

Written By Tim Fletcher, National Head of the Dispute Resolution practice and Elizabeth Sonnekus, Associate in the Dispute Resolution practice at Cliffe Dekker Hofmeyr