CONSIDERING THE HISTORICAL LEGAL DEVELOPMENT WITH REGARD TO THE

CONSTITUTIONALITY OF CHASTISEMENT OF CHILDREN BY THEIR PARENTS

By

A Martin

Submitted in partial fulfilment of the requirements for the degree

LLB

in the

SCHOOL OF LAW

UNIVERSITY OF SOUTH AFRICA

SUPERVISOR: PROFESSOR L PIENAAR

(Assignment 03)

2021
Contents

1 Introduction ................................................................................................................ 4

2 Problem Statement..................................................................................................... 5

3 Hypothesis .................................................................................................................. 5

4 Points of departure and assumptions ...................................................................... 5

4.1 The common law defence ...................................................................................... 6

4.2 Current legal position ............................................................................................. 8

4.3 Assumptions ........................................................................................................ 10

5 Conceptualisation of central research themes ...................................................... 11

5.1 Discipline.............................................................................................................. 11

5.2 Assault ................................................................................................................. 11

5.3 Violence ............................................................................................................... 11

5.4 Best interest of the child ....................................................................................... 11

6 Chapter outlay .......................................................................................................... 12

7 Projected time scale................................................................................................. 13

8 Research method ..................................................................................................... 13

9 Conclusion ................................................................................................................ 14

10 Bibliography ........................................................................................................... 15

LEGISLATION ........................................................................................................... 15

CONVENTIONS......................................................................................................... 15

2
 CASE LAW ................................................................................................................ 15

JOURNAL ARTICLES ................................................................................................ 16

BOOKS ...................................................................................................................... 16

ACADEMIC HONESTY DECLARATION...................................................................... 17

3
1 Introduction

This research portfolio will discuss how the law previously supported the defence of
chastisement of children by their parents as briefly mentioned below as well as discuss
how this goes against the provisions set out by the Constitution.

Up until the judgment of the Constitutional Court in the Freedom of Religion South Africa
v Minister of Justice and Constitutional Development and Others, it was a widely accepted
practice for parents to discipline their children in the way that they thought best as
determined by their religious or cultural beliefs, which included chastisement of children.1

Parents were protected by a common law defence which allowed for chastisement of
children, provided that it was administered moderately and reasonably. The problem with
this protection of the law (hereinafter referred to as the ‘defence’) arises in the fact that a
guideline of the extent of moderate and reasonable chastisement had not been in
existence.2 This uncertainty provides either that this defence can be relied upon
regardless of the extent of the chastisement of a child or the term ‘moderate and
reasonable’ is then defined by the parent.

The Freedom of Religion v Minister of Justice was a landmark case, prohibiting the
continuance of the defence owing to the fact that its existence went against the purport
and spirit of the Constitution.3

In our democratic state, various constitutional and fundamental rights were infringed upon
by the acceptance of this common law principle. These rights and the abovementioned
issues will be discussed in this research proposal in light of legislation and case law.

1 Freedom of Religion South Africa v Minister of Justice and Constitutional Development and Others [2019]
34 para 2 (hereinafter referred to as the ‘Freedom of Religion v Minister of Justice’).
2
YG v S 2018 (1) SACR 64 para 33, 67.
3
Constitution of South Africa, 1996 (hereinafter referred to as ‘the Constitution’).

4
2 Problem Statement

This research will include aspects that incorporate and fulfil the answers to the following
questions:

1. Does the practice of chastisement of children by parents infringe on any

constitutional rights, of both children and their parents?
2. What are the problems that arise from there being no guidelines regarding the term
“reasonable and moderate” chastisement?
3. What was the legal position of the chastisement of children by parents prior to the
judgement handed down by the Constitutional Court?

4. How did the abovementioned judgement impact existing legislation?

3 Hypothesis

This research focuses on the constitutional justification that existed for the criminalisation
of chastisement of children by parents in South Africa. It will discuss the issues which
arose from the defence allowing for chastisement to be carried out provided that it is
“reasonable and moderate”. It also focuses on the relevant constitutional rights
considered in the debating of the abovementioned judgement, as well as the case law
and legislation that gave rise to the legal position prior to the Constitutional Court
judgement.

4 Points of departure and assumptions

The research point of departure is from a solely Constitutional law perspective. It will not
take into regard the moral convictions of the community. The research will take a
comparative approach as it will compare what the law previously allowed and how it
currently prohibits the chastisement of children by their parents.

The first point of departure is an examination of the common law that had given rise to
the defence with the purpose of determining the grounds for the current legal position
regarding chastisement. In our society, those who oppose the removal of the defence of

5
chastisement are few, as the large majority are in favour of retaining the defence.4 In our
democratic state, the Constitution should always be the starting point, due the fact that it
is the supreme law of our land and any legislation found to not be in line with the
Constitution should be declared invalid and unconstitutional.5 The constitutionality of the
defence was important to decide as it affected almost all of the parents and their children
in South Africa as well as the fact that settling on its constitutionality would avoid the
possible violation of children’s rights throughout the country.6

The need to reevaluate the defence and to pass legislation that would impose a limitation
on the authority that parents have in discipling their children became apparent over ten
years before South Africa became a democracy; one of the legislation that was passed
was the Children’s Act.7 This gives rise to the second point of departure: the current legal
position of the defence of chastisement of children.

4.1 The common law defence

Langa J mentions in the case of S v Williams that any rules and practices that have been
in practice for decades or even centuries should often be re-assessed to ensure that they
are in line with the provisions of the Constitution and if they are deemed not to be, they
should be brought in line therewith.8 This is reiterated in YG v S, where it was mentioned
that the courts have a constitutional duty to develop common law.9 R v Janke is one of
the first cases in South African law that defines and provides for the defence of
chastisement as follows:

“To inflict moderate and reasonable chastisement on a child for misconduct

provided that this was not done in a manner offensive to good morals or for objects other
than correction and admonition.”10

4 CR Snyman, Criminal Law (LexisNexis 2014) 138.

5 Section 2 of the Constitution of the Republic of South Africa, 1996.
6 Freedom of Religion v Minister of Justice para 16, 24.
7 Freedom of Religion v Minister of Justice para 12, 24.

8 S v Williams and Others (CCT20/94) [1995] ZACC 6; 1995 (3) SA 632 ; 1995 (7) BCLR 861 (CC) (9 June
1995)
9 YG v S para 27.
10 R v Janke and Janke 1913 TPD 382

6
The purpose of punishment in this manner was in order to correct bad behaviour.11

Included in the duty of raising children, there is the belief that parents have the right to
administer moderate and reasonable chastisement, with the protection of the law that
their conduct does not constitute as assault.12

Religion was used to justify chastisement of children, however the extent of this form of
discipline easily gives rise to abuse, leaving the children without protection from the
extreme form of punishment.13 Grobbelaar and Jones note that the religious beliefs of a
parent cannot be viewed as more important than the best interests of a child and thus the
parent’s right to religious beliefs should be limited.14 They furthermore state that the use
of religious beliefs to justify chastisement is wrong.15

Prior to the constitutional ruling declaring chastisement as unconstitutional, the common

law permitted parents to practice chastisement of children due to the fact that importance
was placed on the family unit and chastisement of children was viewed as a way to
educate children in order to correct their behaviour.16

The courts approach to interpreting the common law rule of chastisement is that parents
and guardians are legally authorised to inflict moderate corporal punishment on their
children.17 Snyman draws a distinction between chastisement and abuse; the former
being an “occasional slap on the thigh or buttocks of a child” as punishment for bad
behaviour whereas the latter relates to the continual mala fide maltreatment of a child.18
This distinction was supported by Freedom of Religion South Africa in the Freedom of
Religion v Minister of Justice case.19

11
12 Freedom of Religion v Minister of Justice para 2.
13 Freedom of Religion v Minister of Justice para 8, 9; Jan Grobbelaar & Chris Jones, ‘Childhood
Vulnerabilities in South Africa: Some Ethical Perspectives’ (2020) 78.
14 Jan Grobbelaar & Chris Jones, ‘Childhood Vulnerabilities in South Africa: Some Ethical Perspectives’

(2020) 72; YG v S (A263/2016) [2017] ZAGPJHC 290; 2018 (1) SACR 64 (GJ) (19 October 2017)
para 84.
15 Grobbelaar & Jones, ‘Childhood Vulnerabilities in South Africa’ 81.
16 Freedom of Religion v Minister of Justice para 8; Snyman, Criminal Law 137-138.
17
Jonathan Burchell, ‘Principles of Criminal Law’ (4 edn Juta 2013) 193.
18 CR Snyman, Criminal Law (LexisNexis 2014) 138.
19 Freedom of Religion v Minister of Justice para 34.

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In Freedom of Religion v Minister of Justice, Mogoeng CJ referred to the R v Hopley case
where Cockburn CJ laid out how parents may discipline their children through the use of
chastisement.20 The requirements for the defence included that punishment may be
imposed upon on a child only if it is for the purpose of “correcting what is evil” and must
be done in a reasonable and moderate manner; should a parent inflict punishment on a
child from a position of anger and/or exceeds the bounds of reasonable and moderate,
and/or uses instruments that may caused excessive harm, the conduct would be deemed
unlawful.21

Applying force to the body of another would in usual terms be considered a matter of
assault; however this “assault” may be justified or considered lawful if the defence of
chastisement is relied upon and if this defence was not in existence, applying force on a
child in this manner could result in the parent who inflicted the force being convicted of
assault.22 Parental authority thus provided a way to avoid conviction.

4.2 Current legal position

The legal ramifications relating to the relationship between parents and their children were
extended with the acknowledgement that children have their own constitutional rights and
entitlements independent from their parents.23 Clark notes that the notion of a nuclear
family is not compatible with the realities of South African society where parenthood
reaches extended family, and the predominance of domestic violence in South Africa
should not be overlooked.24 Mogoeng CJ notes in Freedom of Religion v Minister of
Justice, that South Africa has a “painful and shameful history of widespread and
institutionalized violence” and as a result, section 12 was drafted with the aim of reducing
and eliminating this violence.25

20 Freedom of Religion v Minister of Justice para 10.

21 Freedom of Religion v Minister of Justice para 10.
22 Freedom of Religion v Minister of Justice para 35; YG v S para 35.
23 Bridgette Clark, ‘From Rights to Responsibilities? An Overview of Recent Developments Relating to the

Parent/Child Relationship in South African Common Law’ (2002) 35 (2) 216; Freedom of Religion
South Africa v Minister of Justice and Constitutional Development and Others [2019] 34 para 3, 46.
24 Clark, ‘From Rights to Responsibilities?’ 217, 222.
25 Freedom of Religion v Minister of Justice para 42; Grobbelaar & Jones, ‘Childhood Vulnerabilities in

South Africa’ 79.

8
Clark writes that all case law must be scrutinised in terms of the Constitution as well as
the United Nations Convention on the Rights of the Child, with importance placed on the
best interest of the child.26

Although the judgment of Christian Education of South Africa v Minister of Education did
not decide on the matter of chastisement of children by their parents, Sachs J made a
point to question whether the time had arrived where the common law defence needed
to be developed.27 He questioned whether the defence was questionable with regard to
the provisions of the right to dignity as well as a child’s right to protection from abuse,
neglect, maltreatment and/or degradation.28

The grounds on which the constitutionality of moderate and reasonable chastisement was
decided was section 12(1)(c) of the Constitution which provided for the right to be free
from all forms of violence.29

Section 10 of the Constitution was also considered in deciding the constitutionality of

chastisement which provided for the right to dignity.30 Mogoeng CJ refers to Cameron J’s
note of the importance of dignity in the Constitution and how it aims to “repair indignity, to
renounce humiliation and degradation.”31 He furthermore states that when a child
experiences chastisement as a form of punishment, they also experience a sense of
shame which results in a feeling of being “less dignified than before.” 32 The court
established in S v Williams that any punishment inflicted must respect one’s right to
dignity.33

Children are considered a vulnerable group in South Africa and their interests are
described by Mogoeng CJ as “of paramount importance” hence the main issue at hand
in the case of Freedom of Religion v Minister of Justice the best interest of the child

26 Clark, ‘From Rights to Responsibilities?’ 217.

27 Clark, ‘From Rights to Responsibilities?’ 225.
28 Clark, ‘From Rights to Responsibilities?’ 225.
29 Freedom of Religion v Minister of Justice para 31, 36.
30 Freedom of Religion v Minister of Justice para 31, 45.
31 Freedom of Religion v Minister of Justice para 45.
32 Freedom of Religion v Minister of Justice para 47, 48.
33 S v Williams para 38.

9
regarding the discipline of chastisement.34 An important part of these interests include
raising children in a way that best ensures that they will become “responsible and
disciplined citizens of our country.”35

In Freedom of Religion v Minister of Justice, the court declared that chastisement of

children by their parents, even in a moderate and reasonable manner, is unconstitutional
chastisement is used with the intent to hurt the child to some degree, even in a moderate
and reasonable manner, which amounts to assault.36 Mogoeng CJ notes the defence as
“legally excusable assault”.37 As a result thereof, chastisement meets the requirements
of “all forms of violence” set out in section 12(1)(c) and children should therefore be
protected from it as the law protects everyone, as provided by section 9(1).38

4.3 Assumptions

The assumption is that as the Constitution is the supreme law of the land, any law that
may be inconsistent with its provisions should be deemed invalid and unconstitutional.
Section 9 of the Constitution provides that every person in South Africa has the right to
equal protection of the law without discrimination, including age.39 It furthermore provides
in section 10 that everyone has the right to dignity and to have their dignity respected and
protected.40 In addition to the abovementioned sections, section 12(c) and (e) provide
that everyone has the right to be free from all forms of violence as well as the right to not
be treated in a degrading, cruel or inhuman manner.41

This research will not focus on the debates for and against the defence based on the
religious or cultural beliefs of the parents. The focus is purely on the constitutional validity
thereof.

34 Freedom of Religion v Minister of Justice para 16.

35 Freedom of Religion v Minister of Justice para 24.
36 Freedom of Religion v Minister of Justice para 28.
37
Freedom of Religion v Minister of Justice para 28, 41.
38
The Constitution; Freedom of Religion v Minister of Justice para 43, 44.
39 The Constitution.
40 The Constitution.
41 The Constitution.

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5 Conceptualisation of central research themes

During the research of the topic of the historical development of the law with regard to the
defence, there have been recurring terms and themes within the topic.

These themes will be defined below.

5.1 Discipline

The word discipline finds its origin from the Latin word ‘disciplina’ which translates to
‘learning’, ‘instruction’ or ‘teaching’.42 Although over time, the word became synonymous
with punishment.43

5.2 Assault

Assault is a common law crime and is defined in YG v S as the “unlawful and intentional
application of force to the person of another.”44

5.3 Violence

Mogoeng CJ makes use of the ordinary dictionary meaning of violence which is defined
as the “behaviour involving physical force intended to hurt, damage or kill someone or
something” and that this definition should be used in the interpreting of section 12(1)(c).45

5.4 Best interest of the child

Section 28(2) of the Constitution provides that it is of utmost importance that in any matter
regarding a child, their best interests must be the focus which is reiterated in the United
Nations Convention on the Rights of the Child.46 Article 5 of the CRC serves as an
benchmark in international law regarding the manner in which parents are responsible for
the way in which they are legally responsible for their children. It regulates the triangular

42 Grobbelaar & Jones, ‘Childhood Vulnerabilities in South 87.

43 Grobbelaar & Jones, ‘Childhood Vulnerabilities in South Africa’ 88.
44 YG v S para 31.
45 Freedom of Religion v Minister of Justice para 38.
46 Freedom of Religion v Minister of Justice; Article 3 of the UN Convention on the Rights of the Child

(hereinafter referred to as ‘the CRC’).

11
relationship that exists between the state, the parent(s) and the child(ren). The state has
the responsibility to act as a safety net in circumstances where the primary caregiver is
unable to look after the child as well as regulate the standard norms in which parents
carry out their parenting.47

Parents have the responsibility in terms of Article 5 to guide their child in a manner that
is appropriate; and upon further explanation the CRC declared that chastisement is not
in line with the provisions set out by the CRC.48 Chastisement is seen as “outdated and
authoritarian”.49 The writer writes that the bottom line of the parent-child relationship
created by the CRC is that their most basic concern is the best interest of the child which
includes protecting children from all forms of violence.50

6 Chapter outlay

This chapter will include the terms and concepts that are central to the
Chapter 1 research. It also includes an introduction and sets out the research
methodology used.

This chapter analyses the relevant legislation and case law regarding the
Chapter 2
topic of chastisement of children by their parent within South Africa.

This chapter lays out the historical development of the common law
Chapter 3 defence of chastisement of children by their parents in South Africa and
the constitutional decision thereof.

The final chapter provides a conclusion of the discussion of the historical

Chapter 4 development of the law pertaining to chastisement of children by their
parents as well as recommendations.

47
154
48
155
49
155
50
155, 159

12
7 Projected time scale

Submission of final draft research proposal 02 October 2021

Submission of draft chapter 1 02 November 2021

Submission of draft chapter 2 02 December 2021

Submission of draft chapter 3 02 January 2022

Submission of draft chapter 4 02 February 2022

Receive comments of all chapters 28 February 2022

Resubmission of all revised chapters 31 March 2022

Submission of final research proposal for

31 May 2022
examination

8 Research method

The research method that will be used will be a historical analysis method. This method
was used to provide an overview of the previous legal position of chastisement of children
by their parents in South Africa as well as provide insight as to the development of the
law over the years.

The sources that will be consulted are first and foremost, the Constitution of the Republic
of South Africa as well as case law dating back to 1913 up until the constitutional decision
that declared chastisement of children by parents to be unconstitutional. In addition to
this, various journal articles and textbooks will also be consulted in this analysis.

The above sources will be accessed by means of Google Scholar as well as legal
platforms such as LexisNexis.

A qualitative research will be used.

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9 Conclusion

In conclusion, the Constitutional Court declared in the Freedom of Religion South Africa
case that the defence of chastisement of children by parents goes against the values
enshrined in the Constitution and is inconsistent therewith. The defence of chastisement
of children by parents violates various sections of the Constitution is therefore
unconstitutional and should be scrapped from our laws completely along with any
supporting provisions.

14
10 Bibliography

LEGISLATION

The Constitution

Constitution of the Republic of South Africa, 1996

CONVENTIONS

United Nations Convention on the Rights of the Child, 1989

CASE LAW

Freedom of Religion v Minister of Justice

Freedom of Religion South Africa v Minister of Justice and Constitutional

Development and Others [2019] ZACC

R v Janke

R v Janke and Janke 1913 TPD 382

S v Williams

S v Williams and Others (CCT20/94) [1995] ZACC 6; 1995 (3) SA 632 ; 1995 (7)
BCLR 861 (CC) (9 June 1995)

YG v S

YG v S (A263/2016) [2017] ZAGPJHC 290; 2018 (1) SACR 64 (GJ) (19 October
2017)

15
JOURNAL ARTICLES

Clark, ‘From Right to Responsibilities?’

Clark B, ‘From Rights to Responsibilities? An Overview of Recent Developments

Relating to the Parent/Child Relationship in South African Common Law’ (2002)
35 (2) 216-235

BOOKS

Snyman, ‘Criminal Law’.

CR Snyman, ‘Criminal Law’ (6 edn LexisNexis 2014)

Grobbelaar & Jones, ‘Childhood Vulnerabilities in South Africa’.

Jan Grobbelaar & Chris Jones, ‘Childhood Vulnerabilities in South Africa: Some
Ethical Perspectives’ (2020).

Burchell, ‘Principles of Criminal Law’.

Jonathan Burchell, ‘Principles of Criminal Law’ (4 edn Juta 2013)

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ACADEMIC HONESTY DECLARATION

1. I understand what academic dishonesty entails and am aware of Unisa’s

policies in this regard.

2. I declare that this assignment is my own, original work. Where I have used someone else’s

work, I have indicated this by using the prescribed style of referencing. Every contribution to,

and quotation in, this assignment from the work or works of other people has been referenced

according to the prescribed style.

3. I have not allowed, and will not allow anyone to copy my work with the intention of passing

it off as his or her own work.

4. I did not make use of another student’s work and submit it as my own.

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