Du Preez v Conradie and Another 1990 (4) Sa 46 (Bg | Punishments | Crimes






1990 (4) SA p46


1990 (4) SA 46 (BG) Bophuthatswana General Division Friedman J June 9, 1988; August 25, 1988 October 20, 1988 Link to Case Annotations







Flynote : Sleutelwoorde
Minor - Chastisement of - Parent having right and power to chastise minor children - Such right includes the right to impose moderate and reasonable corporal punishment - Step-parent (to whom divorced parent H of children married) may exercise same rights as parent if requested to do so by parent, subject to same limitations as on parent - Parent and step-parent not entitled to molest children or exceed bounds of moderate and reasonable chastisement.

Headnote : Kopnota The parent of a child (including the custodian parent where the parents I are divorced) has the right and power to chastise his/her minor children, such chastisement to be moderate and reasonable and includes the right to impose moderate and reasonable corporal punishment. A step-parent (in casu, a stepfather married to the divorced mother of the children to whom custody of the children had been awarded) may exercise the same rights as the parent (the custodian mother) if requested to do so by such parent, subject to the same limitations, or if he is in loco parentis during the temporary absence of the parent, again subject to J the same limitation.
1990 (4) SA p47

FRIEDMAN J A Neither a parent nor a step-parent shall molest the children or exceed the bounds of moderate and reasonable chastisement in the disciplining and correction of the children. Case Information Return day of a rule nisi. The facts appear from the reasons for judgment.

J H Pistor for the applicant.

L C J Maree for the respondents. Cur adv vult. Postea (20 October 1988). Judgment
C Friedman J: This matter came before me by way of an urgent application on 12 November 1987. Mr J H Pistor appeared for the applicant and Mr L C J Maree appeared on behalf of the respondents.

By agreement the following order was granted by me: '1 2 3 Dat die eerste respondent verbied word om die kinders, Jan D Stephanus du Preez en Dinkie Marie du Preez, aan te rand, te molesteer of op enige wyse fisies te tug. Dat die tweede respondent verbied word om die voormelde kinders aan te rand. Dat 'n bevel nisi uitgevaardig word ingevolge para 1 en 2 wat as tussentydse bevele sal geld en dat alle belanghebbende partye E opgeroep word om op 14 Januarie

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aged 13 years.DU PREEZ v CONRADIE AND ANOTHER 1990 (4) SA 46 (BG) http://ipproducts.. and J second respondent as mother of the children. but visited her at the school on 9 November 1987. The doctor found certain abrasions on parts of her body as well as certain marks and he states that he diagnosed the abrasions and marks as E the type that is consistent with the use of bare hands and a leather belt. Dinkie also reported that the first respondent pulled her by her hair. or at all. At the time of the application. The reason advanced by the first respondent for the alleged assault. after the first respondent found her. the age of the children was as follows: A son. and a daughter. and regrettably so. As a result of this she fled from the house and hid away in the garden and. 1990 (4) SA p48 FRIEDMAN J A In consequence thereof there hardly exists any communication between the applicant and the second respondent relating to the children.1 3. this results in unpleasantness between the applicant and second respondent. he did not do so.co. In terms thereof.' F Thereafter the rule was extended from time to time by agreement and on 9 June 1988 I heard argument by the respective counsel as to whether the rule that had been granted should be confirmed or not. The said order of divorce also incorporated an agreement between the parties which was annexed to the papers as annexure A. On that day judgment was reserved and accordingly the rule was extended to 25 August 1988. on his version. The facts on which the applicant seeks relief are the following: G The applicant and the second respondent were husband and wife and their marriage was dissolved on 23 May 1979 by the Transvaal Provincial Division of the Supreme Court of South Africa. the second F respondent also joined in on the assault on her by means of a belt and shoes. Jan also suffered similar treatment. 1988 om 10:00 in hierdie agbare Hof redes aan te voer: 3.d. The son's name is Jan Stephanus du Preez and the daughter is Dinkie Marie du Preez. As a result of a request by Dinkie not to react immediately. Waarom die respondente nie gelas sal word om die koste van hierdie aansoek te betaal nie. D As a result thereof he caused her to be medically examined and an affidavit by one Dr Rian Vlok was annexed as annexure B to the founding affidavit. According to Dinkie. the father of the children. hit her with his fist and also a belt and in general acted towards her in a rough manner. On the applicant's version Dinkie visits the respondents three weekends per month and spends the fourth weekend with him. The applicant avers that on 8 November 1987 Dinkie informed him telephonically that the first respondent had assaulted her and Jan the C previous night and that such assault was of a serious nature. Since the beginning of 1987 Dinkie has been a boarder in a hostel at a B high school in Lichtenburg and Jan lives with the respondents in Mafikeng. that a poor relationship exists between applicant. In point of fact.jutalaw. He claimed that the marks were caused by the first respondent in his assault on her. the custody and control of the two minor children born of the marriage was given to the second respondent. where he found. It appears from the papers. related to Dinkie telling him that she did not have Sunday-school homework for the 2 of 7 2012/06/11 05:28 AM . according to the applicant.asp?NXTScript=nxt/gateway.2 Waarom die voormelde bevele nie finaal gemaak sal word nie. and in 1981 the second respondent married the first respondent. arm and in the area of her chest and collar-bone. H I The said children have been under the custody and control of the second respondent since 1979.. that she was very emotional and he noticed marks on her legs. respectively referred to as Jan and Dinkie in the papers. aged 14 years.za/nxt/print. when any discussion relating to the children is attempted.

DU PREEZ v CONRADIE AND ANOTHER 1990 (4) SA 46 (BG) http://ipproducts. He does. She informed him that her book was at the hostel. that the second respondent H associates herself with the first respondent's conduct towards the children and at times she goes so far as to incite and encourage the first respondent to assault the children and that she also participates in the assaults. He informed the applicant of this fact and he gave him his assurance that he would not be a stepfather to the children. G After this he asked Jan to show him his Sunday-school book. The first respondent gave him a few slaps with his flat hand and said he must complete his work and he then left his room. 7 November 1987. following day and he formed the belief that she was not telling him the truth. object to the assault on the children as detailed in his version. Suddenly Jan became angry with him for no apparent reason and started shouting at him and became aggressive. E It is unnecessary for the purposes of this application to deal with all the factual allegations relating to the friction between the applicant and the respondents. 3 of 7 2012/06/11 05:28 AM . that whilst in the process of assaulting the children he informed them that if he did not intervene at this stage he would be accountable to the Almighty. The attitude of the applicant is that he has no objection if the I second respondent deems it necessary to discipline the children on a reasonable basis whenever necessary. he and the children had an extremely good relationship and they referred to him as 'Pa Dries' and this was a D source of satisfaction to him. He started to cry and said that he had not yet done his work. and they were play-wrestling. He then left her room.asp?NXTScript=nxt/gateway. The applicant contends. He states that. and in any event are not an issue in this application. He informed him that the doors of his house were always open to him for access to the children. is his account of what took place on Saturday. however.. he and Jan were playing on the bed where Jan was lying. He avers that he is very fond of children and all his life he has been involved with children and at present he is the Kommandant of the Voortrekker commando at Mafikeng. their attitude changed somewhat and they informed him that the applicant was unhappy with the fact that they referred to him as 'Pa Dries'. due to the fact that they will be living with him. He did not believe her and stated that he wanted to have the book.co. A confirmatory affidavit has also been annexed by Dinkie which is referred to as annexure C..d.jutalaw. During 1981 he and the second respondent decided to marry and they B married in September 1981. He advised him that he believed in discipline and that the applicant would have to appreciate that the children. 1990 (4) SA p49 FRIEDMAN J A In his answering affidavit the first respondent states that his relationship with the second respondent and the children started at the end of 1980. He had a good relationship with them. After a while he noticed that. however. He contends that the applicant appreciated his approach and offered his co-operation. after dinner. His view is. Thereupon she started to scream and said in any event that she did not have any homework. after they had spent some time at the applicant's home during his period of access. It is clear from the G papers that the first respondent is a religious man and he is also an elder in the church. The allegations by the applicant relating to the assault on the children have been denied by the first and the second respondents. He stated that it made no difference whether she had any homework or not he wanted to see her book and he ordered her to look I for the book and to bring it to him. would fall C under his authority and he would have to have to discipline them in a fatherly manner if it was necessary.za/nxt/print. in addition. After the marriage. He states that he administered soft fist blows on his arm and told him that he must not react so quickly. H Thereafter he went to Dinkie in her room and asked for her Sunday-school book. in that no action was taken by the applicant. nor with the averments of alleged previous assaults on the children by the respondents. according to the applicant. Both J the first and second respondents filed answering affidavits. His version is that the whole incident was more playful than anything else. F What is relevant.

Thereafter the second respondent left the bedroom. she not having brought the book. She further shouted at him and stated that she was not telling fibs. did not conduct any proper enquiry or investigation. B He went to search for her outside because. H Many allegations and counter-allegations and minutiae of detail have been recounted by all the parties. C Eventually. at that time of the night. 4 of 7 2012/06/11 05:28 AM . He asked her where her Sunday-school book was. He informed her that they love her and that she did not conduct herself like a Christian girl and that he and the second respondent F would be accountable to the Almighty.' He says that he then ordered her to bend over and when she refused to do that. in disciplining the children. G He denies that he pulled her by her hair and that he assaulted her with his fists.co. quite properly in my view. or can the second respondent as custodian parent delegate her right to discipline the children to a third party such as the first respondent? Mr Pistor .. He went to the room and D there saw Dinkie with a belt in one hand and in the other hand she was holding the second respondent's hand. Both counsel during the course of the application. and it appeared to him that she wished to assault the second respondent with the belt. He then went to have a bath. He then said that he was going to give her a hiding and he went to his room to fetch his belt. 1990 (4) SA p50 FRIEDMAN J A He then noticed that her book was in the bookcase. Again she J reacted by shouting at him and saying that she did not have any homework. he states. and asked why she told him a fib in saying that she had left her book at the hostel.jutalaw. His version as to what occurred on the night of 7 November 1987 is substantially corroborated by the second respondent who also filed an answering affidavit. This had no influence on her whatsoever.za/nxt/print. or that he disciplined her in any improper way. he heard the second respondent and Dinkie involved in an argument in Dinkie's room.d. He searched a great deal but could not find her and then returned home. After he had finished his bath. He contended furthermore that the first respondent. He says that he ordered her to go into the house and asked the second respondent to talk to her. Dinkie was extremely threatening. indicated that the substantial issues for decision were the following: I (a) (b) has the first respondent any right to discipline the children. on previous occasions at night she used to run into the street and he used to go by car to search for her. In the interim she ran out of the house.asp?NXTScript=nxt/gateway. in any event. and he found her sitting on her bed with schoolbooks. submitted that the first respondent has no authority to impose disciplinary measures on the children and.. She became aggressive and a type of wrestling encounter developed between them. there was no investigation by him as to why J the children had to 1990 (4) SA p51 FRIEDMAN J A be chastised. E and that he must discipline her. he administered a few blows with the belt because she did not bend down. he returned to her room. He also searched in the house. and she told the first respondent that she did not have the strength for Dinkie. She stiffened herself and screamed at him: 'You are not entitled to hit me. they did not regard the streets as being safe for a young girl. many of which are irrelevant and unhelpful and do not take the matter any further. on behalf of the applicant. he found her sitting under a tree in a corner of the property behind a huge stone. The second respondent was completely exhausted.DU PREEZ v CONRADIE AND ANOTHER 1990 (4) SA 46 (BG) http://ipproducts. After approximately ten minutes. The first respondent says that he then took the belt and started talking nicely to Dinkie. Both he and the second respondent were very worried and unsettled because.

R v Jacobs 1941 OPD 7.za/nxt/print. a stepfather to discipline and chastise children. R v Roux 1932 OPD 59 at 61.. the build of the child. in that on the papers it was difficult to determine which version was in fact the correct version. in any event.. J C van der Walt Delict: G Principles and Cases at 47. Another relevant consideration relating to the hearing of the C application was whether the matter should be referred for viva voce evidence.6.. A.. Hiltonian Society v Crofton1952 (3) SA 130 (A). which in turn must be F restrained and tenable.asp?NXTScript=nxt/gateway. See R v Le Maitre and Avenant1947 (4) SA 616 (C). (iv) the severity of the punishment. contended that the second respondent as custodian parent was entitled to delegate her authority to B discipline the children to the first respondent. to the effect that the first respondent would be entitled to discipline the children while they lived with him. Mr Maree. Boberg The Law of Persons and the Family at 464 . R v Liebenberg 1917 OPD 67 at 69.6. R v Muller1948 (4) SA 848 (O).d. B See R v Schoombee 1924 TPD 481 at 483. Spiro The Law of Parent and Child 3rd ed at 83. Hiltonian Society v Crofton (supra at 134). (ii) the condition of the child. (v) the object used to administer punishment. Mason J said: 'The general rule adopted both by the Roman. 1990 (4) SA p52 FRIEDMAN J A (iii) the motive of the person administering the punishment. the parental authority revives. E punishment to their In order to achieve this object parents have the right to chastise their children. In R v Janke & Janke 1913 TPD 382 at 385 . even to administer moderate corporal punishment. in the instant matter. In Germani v Herf and Another1975 (4) SA 887 (A) it was held that a custodian is entitled to use reasonable force to compel an unwilling or recalcitrant child to submit to the non-custodian parent's right of H access. Rights of parents relating to parental authority It is settled law that parents have the right and power to administer minor children for the purpose of correction and education. The chastisement must be moderate and reasonable. and the non-custodian parent in these circumstances I can use reasonable force to correct or discipline the child should it be necessary. I am of the view that I can decide the substantial issues on the papers.jutalaw. and. and Tshabalala v Jacobs 1942 TPD 310 at 313. This list is not exhaustive: (i) J the nature of the offence. Furthermore. See also Snyman Criminal Law at 107. Inasmuch as this is an application involving the rights of parents and. The presumption is 5 of 7 2012/06/11 05:28 AM . In determining the reasonableness of the punishment the following circumstances must be considered. and also between the first respondent and the applicant. R v Scheepers 1915 AD 337 at 338. even when it takes the form of corporal punishment.. the custodian parent can also ask the non-custodian parent to use reasonable force to compel an unwilling child to submit to the non-custodian parent's rights of access. on behalf of the respondents. R v Theron (supra at 176). ie degree of force applied.DU PREEZ v CONRADIE AND ANOTHER 1990 (4) SA 46 (BG) http://ipproducts.co. R v Jacobs (supra at 10). Even while the child is temporarily under the control of the non-custodian parent pursuant to a right of access. To be justifiable the punishment must be equitable and fair. and further having regard to the very costly nature of a trial. (vi) (vii) the age and sex of the child. there was an agreement between them. R v Theron and Another 1936 OPD 166 at 176 and S v Lekgathe1982 (3) SA 104 (B) at 109A. and insofar as all the parties to the application have the D interests of the children at heart. the Roman-Dutch law and the English law is that a parent may inflict moderate and reasonable C chastisement on a child for misconduct provided that this is not done in a manner offensive to good morals or for other objects than correction and administration. physically and mentally.

. R v Le Maitre and Avenant (supra ).za/nxt/print. And where the object of the whipping is not really for the purposes of correction or by way of admonition or instruction or the proper vindication of authority (see Voet 47. If the second respondent enlists the assistance of the first respondent for these purposes. and generally instruction and guidelines for correct and proper behaviour.. direction or purpose in their upbringing. however. nor mete out a greater degree or nature of punishment than the circumstances require. Delegation of the right to chastise May a parent delegate the right to chastise to another person? It is accepted that by common law persons in loco parentis. See J C van der J Walt Delict: 1990 (4) SA p53 FRIEDMAN J A Principles and Cases at 47. subject to the conditions that I have specified. however. the second respondent may delegate this right to him.. A teacher or housemaster or principal of a school has the right to inflict moderate and reasonable corporal punishment. the concomitant of which is also to inflict moderate and reasonable corporal C maintain authority and discipline. or who acts from improper or ulterior motives.' It must also be emphasised that a parent who exceeds the bounds of moderation. I come to the conclusion that a parent does have the right to delegate the authority to chastise a child to a person in loco parentis. I must assume in his favour that he 6 of 7 2012/06/11 05:28 AM . but also in his/her own right. Concerning the first respondent. the amount of punishment inflicted. For the purposes of this judgment I have not considered. On no account is he.co. be seriously affected by a whipping which would be harmless in the case of a more robust constitution. exceed the limit of his rights.DU PREEZ v CONRADIE AND ANOTHER 1990 (4) SA 46 (BG) http://ipproducts. This is done in order to maintain discipline and control of misbehaving G pupils. Tshabalala v Jacobs (supra ). In the instant matter the second respondent has the right. principals and teachers. subject to the limitations punishment on them to mentioned.asp?NXTScript=nxt/gateway. Hiltonian Society v Crofton (supra ). See Snyman Criminal Law at 107.. It also appears that a parent may delegate the right of chastisement and the decision whether and how to chastise. Nowadays it is more important in a society where permissiveness is escalating for children to be inculcated with a respect for discipline E and authority. which he may only exercise on the same terms and conditions as the first respondent. the D nature of the instrument used and the objects. F B. purposes and motives of the person inflicting chastisement are all matters which have to be considered. not only as a result of delegation by the parent. or from a sadistic propensity. the parent can only delegate such rights as he or she has. for instance. and nothing more. may well face civil and criminal liability. and administer punishment to pupils who are under their control and care. F He may not. such as housemasters. by way of administering corporal punishment. as custodian parent. This being the case. The character of the offence. it is his duty to support and assist her. R v Le Maitre and Avenant (supra ). D He is the head of the household and unless he is party to or assists the second respondent to maintain discipline in the home..10) E those guilty of such conduct may be held liable to the law. On the basis of the aforegoing there seems to be no reason why a parent or a person in loco parentis may not delegate the actual administration of corporal punishment to another person. R v Scheepers (supra ).d. I On the authorities that I have cited. and R v Jacobs (supra ). A nervous or highly sensitive child may. As in the case of parents it must take the form of moderate chastisement. See R H v Roux 1939 OPD 59 at 61.. to exceed the bounds of reasonableness and moderation in chastising the children. have the power to chastise. R v Muller (supra ).jutalaw. that such punishment has not been dictated by improper motives and the court will not lightly interfere with the discretion of parents or those empowered with a similar authority. to chastise her children. His position at common law would be no different to that of a teacher. nor is it necessary to consider.. Consequently the person to whom the right of B chastisement is delegated has not a greater or more extensive right than the parent has. the children may well find themselves in an atmosphere where there is no aim.. and is subject to the same limitations. the limitation on the teacher's authority in this respect by various legislative enactments. the bodily and mental condition of the child.

and inasmuch as the Court is the upper guardian of minors. In that this application concerns the welfare of the minor children. (c) B (d) (e) each party should bear their own costs. Another consideration that prompted me to depart from the usual rule of awarding costs is that the applicant was entitled to come to Court on the basis of the information received from the children. is not. (b) the first respondent may exercise the same rights as the second respondent if requested to do so by the second respondent. actuated by improper motives.DU PREEZ v CONRADIE AND ANOTHER 1990 (4) SA 46 (BG) http://ipproducts. nor do any substantial reasons emerge from the papers.asp?NXTScript=nxt/gateway. In order to regularise the position between the parties and the children.. The applicant raises no objection to the second respondent continuing to be the H custodian parent. again subject to the same condition. the said chastisement must be moderate and reasonable and includes the right to impose moderate and reasonable corporal punishment. neither respondent shall molest the children or exceed the bounds of moderate and reasonable chastisement in the disciplining and correction of the children. J subject 1990 (4) SA p54 FRIEDMAN J A to the same limitation.jutalaw. I believe that the order that I have made is proper and necessary in the circumstances.za/nxt/print. Respondents' Attorneys: Ackerman & Maree. to the mutual benefit of both parties. and assuming that all parties have acted from proper and just motives relating to the disciplining of the children. © 2005 Juta and Company. Ltd. So were the E respondents entitled to put their version before the Court. There must be an accommodation between the parties and unless the position relating to the discipline to be applied to the children is regulated and stabilised.. it is necessary to adjust and regulate the conduct of the respondents concerning their authority to discipline the children.d. has also the same right and authority while the children are with him. F Applicant's Attorneys: Louis Smit Inc. or if he is in a position of loco parentis during the temporary absence of the second respondent. why the penalty of paying the other party's costs should be visited on the parties. G On the papers the conduct of which the respondents complained of occurred on the night of 7 November 1987. 7 of 7 2012/06/11 05:28 AM . Conversely the applicant as the natural father. the parties may be involved in a multiplicity of litigation at great cost to them. the rule nisi is discharged. nor will he be. Accordingly I order I (a) the second respondent has the right and power to chastise the minor children. The children have in fact been with them for a period of approximately seven years. I have decided not to C award costs to either party. D In this dispute it is hoped that the order made will induce the parties to settle their future relationship concerning the children. and non-custodian parent. In such a situation there are in reality no winners. Consequently there is no need for it.co.

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