Living in a time where the abuse and murder of children is all over the media, one would be naïve not to be on high alert when it comes to the safety and security of our children. These concerns were brought into focus by the recent Constitutional Court judgement in Freedom of Religion South Africa v Minister of Justice and Constitutional Developments and the others. In this case, the court declared that the common law defence of reasonable and moderate parental chastisement is inconsistent with the provisions of the South African Constitution.

The case raises many questions about the correlation between a parent disciplining his or her child and the abuse of children. Where do we draw the line between chastisement as a form of discipline and the abuse of a child? How much or how little force is considered reasonable and moderate? Does any kind of violence inflicted on a child qualify as assault or abuse?

Background to the case

It’s worth recalling the backstory to this case. Originally, a case of assault with intent to do grievous bodily harm was opened in the Magistrate’s Court against a father who had punched and kicked his 13-year-old son after finding him watching pornography. The father’s defence was the common law defence of reasonable and moderate parental chastisement. This defence for obvious reasons did not work in this matter and he was convicted of common assault. The matter was referred to the High Court on appeal and the High Court upheld the decision of the Magistrate’s Court.

The matter was then brought to the Constitutional Court, where Freedom of Religion South Africa wanted to differentiate the common law right and the defence under discussion from the abuse and assault of children. Chief Justice Mogoeng indicated that the difficulty Freedom of Religion faced was “attempting to locate this chastisement outside the boundaries of assault”.

The Constitution

Section 12(1)(c) of the Constitution provides that “Everyone has 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.” To understand this provision, attention needs to be paid to the definition of “violence”. Violence is defined as “behaviour involving physical force intended to hurt, damage or kill someone or something”. Assault, as defined by Burchell and Milton, who were referenced in the Constitutional Court judgement, is the unlawful and intentional application of force to the person of another or inspiring a belief in that person that force is immediately to be applied as threatened. The words “violence” and “assault” thus have a very similar meaning. Now, chastisement usually involves using force on a child as a form of ‘discipline’. And the only reason this use of force was not previously illegal and punishable was because parents had a common law defence to apply it.

Living in a country like South Africa where there is widespread institutionalised violence, one would expect that an attempt to curb any form of violence would be welcomed. So why is it that when it comes to the application of force on children – and I intentionally use the word force as per the definition of violence – parents should be exempt and that force should be allowed?

If the use of force against an adult is illegal – bearing in mind that most adults are able to defend themselves in one way or another and are capable of grasping the reason that force is being used – then why should it not be illegal to inflict any degree of force on a child, who by all accounts is defenceless? Shouldn’t the fact that children are unable to defend themselves against the use of force make the act all the more illegal?

Alternative forms of discipline

There has been an outcry from parents, religious organisations and the like against this judgement. They feel that courts are infringing on people’s parental and religious rights. I need to emphasise that I am not attempting to tell parents how to raise their children and what kind of discipline should be used in a loving and caring home. I am, however, suggesting that this Constitutional Court judgement is a step towards realising different and safer ways of disciplining children – forms of discipline that do not require a common law defence in order to make the behaviour acceptable in the eyes of the law.

It is true that corporal punishment has been used for years and is believed to be effective in disciplining children. But how will we know that a different and less violent means of discipline would not be just as effective if we don’t try it? Is the safety, security and dignity of our children not worth it?

By Katlego Kenosi

LindsayKeller associate

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