The debate of reasonable and moderate chastisement has endured long and divided opinion over whether corporal punishment should be prohibited entirely, or the common law defence of reasonable and moderate chastisement be allowed to survive. Whether this debate was tedious or not the simple fact is that any decision would have an impact on how parents could raise their children and undoubtedly, would have an impact on all South Africans private lives, and how parents and children interact in the privacy of their own homes.

The issue of Corporal punishment has been settled for some time. Corporal punishment has been outlawed for a number of years in South Africa, namely as a result of the judgement of Christian Education South Africa v Minister of Education (CCT4/00) [2000] ZACC 11; 2000 (4) SA 757; 2000 (10) BCLR 1051 (18 August 2000). However, Parents in South Africa have always been able to rely on the common law defence of reasonable and moderate chastisement when disciplining their own children. This defence essentially permitted parents to spank their child within certain parameters namely, that this is reasonable and moderate. The factors courts relied on to determine whether the chastisement was reasonable and moderate were inter alia the nature of the child’s transgression, the motive of the parent, the force and object used in disciplining the child, as well as the age, gender and size of the child.

This debate as to the legality of reasonable and moderate chastisement has since become settled and declared unconstitutional by the High Court, which of its own accord considered the constitutionality of this common law defence. The matter was taken on appeal to the Gauteng High Court after the father of a 13 year old boy was convicted of assault with intent to do grievous bodily harm after he had kicked his child for watching pornographic material. The Gauteng High Court found that the defence of reasonable and moderate chastisement, invalid on the basis that it impacted on several constitutional rights.

The matter was then taken to the Constitutional Court when Freedom of Religion South Africa intervened in the case as an amicus curiae or friend of the court. Freedom of Religion South Africa challenged the High Court’s declaration of the constitutional invalidity of reasonable and moderate chastisement on a child. They sought to distinguish reasonable and moderate parental chastisement from assault or abuse of children.

The Constitutional Court’s decision focused primarily on section 12(1)(c) of the Constitution of the Republic of South Africa. Section 12(1)(c) states 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 went further to not only state that reasonable and moderate chastisement impaired a minor child’s section 12 right but also had an impact on their section 10 right or their right to dignity. The question was simply whether the limitation on these rights was justifiable. The Constitutional Court found that it was not justifiable and in making its ruling found that any form of violence, including reasonable and moderate chastisement, constituted assault. The decision of the Constitutional Court therefore has the effect of rendering the common law defence of reasonable and moderate chastisement constitutionally invalid. This settles the matter once and for all that all forms of corporal punishment including reasonable and moderate chastisement are now prohibited in terms of our law.

The social impact of the judgement and willingness of parents to adapt their disciplinary techniques will only become clearer with time. However, the Constitutional Court has handed down this judgement in that a vulnerable group of our society may enjoy full Constitutional Protection. Where violence against vulnerable groups of our society is increasingly high, this decision can only be seen as well reasoned and consistent with the aim to offer such groups unencumbered protection.

Read the full case at: Freedom of Religion South Africa v Minister of Justice and Constitutional Development and Others [2019] ZACC 34