S v WILLIAMS

 6 juveniles convicted by magistrates and sentenced to whipping.

 Is the whipping of juvenile offenders as disciplinary chastisement as punishment for a crime
unconstitutional?
o Court found that the state must adhere to the constitutional standards when
punishing an offender
o Judge found that there existed no justification for the punishment of juvenile
whipping and that disciplinary chastisement was unconstitutional in prescribing the
whipping of juveniles

CHRISTIAN EDUCATION SOUTH AFRICA V MINISTER OF EDUCATION 2000

 Private Christian school wished to keep administering corporeal punishment at their school
 Based their arguments on their right to religious freedom and the fat that the parents
consented to the disciplinary chastisement by teachers when they sent the children to the
school
 Minister argued that disciplinary chastisement by teachers was unconstitutional in that
infringed upon childrens right to equality and dignity
 Constitutional court weighed up infringement on religious freedom vs infringement on the
childrens rights and found that disciplinary chastisement in schools was unconstitutional

S V YG 2017

 Father caught his son watching porn o a tablet

 Severely assaulted the child with kicks and blows to his body
 Tried to rely on disciplinary chastisement on ground of justification for the assault
 Court found that the assault did not constitute reasonable disciplinary chastisement but
went further to say that the disciplinary chastisement of a child by a parents is
unconstitutional on grounds of equality, dignity and freedom and security of person

FREEDOM OF RELIGION SOUTH AFRICA V MINISTER OF JUSTICE AND CONSTITUTIONAL

DEVELOPMENT AND OTHERS

 High court dismissed appeal to S v YG on grounds that it violates the childs right not to be
discriminated against on the basis of age, equal protection of the law, dignity , freedom from
all forms of violence and degradation and bodily and psychological integrity
 Constitutional court hands down judgement in an application for standing and leave to
appeal against a High Court order declaring common law defence of moderate and
reasonable chastisement constitutionally invalid
o Application to challenge: acts on behalf of members and the public at large who
“believe that the scriptures and other holy writings permit, if not command,
reasonable and appropriate correction of their children”
o Applicant submitted that the defence does not infringe on the dignity of the child or
any of the childs rights
 “loving parental chastisement applied for the benefit of the child and in his
or her best interest, gives dignity to the child”
  Taking into account the constitutional right of parents to religious freedom
and the constitutional right of children to parental care
o High court decision didn’t prevent parents from disciplinging their children as
enjoyed by their faith but merely prevented them from employing corporeal
punishment
o If children need to chastise their children, they can use appropriate and
constitutionally acceptable ways to do so , not corporeal punishment
o Defence unjustifiably limited childrens rights to dignity, equal protection of the law,
freedom from violence, and bodily and psychological integrity
o Any form of violence amounts to assault … where an adult would have legal
recourse, children do not
o Because children may still be effectively disciplined without resorting to moderate
and reasonable chastisement, less restrictive means to achieve discipline are
available

 The court found that chastisement, even if moderate and reasonablem was violence
within the meaning of s 12 (1) © of the constitution : “the right to be free from all forms
of violence” and so limited that right ….. also limiting right to dignity (s 10)
 Thus : declared that the common law defence of reasonable and moderate parental
chastisement is inconsistent with the provisions of ss 10 and 12 (1) (c ) of the
constitution
- Parents contending that they bear the primary duty to lovingly raise their children in
terms of their religious, cultural and other “non-harmful” beliefs …. Administration of
moderate and reasonable chastisement , without being exposed to the risk of criminal
charges or a criminal record
- Matter began as a trial of assault with intent to do grievous bodily harm in the JHB
magistrates court: father abused 13-year old son for watching porn
o Vicous kicking and punishing : couldn’t rely on religious or cultural ground to
justify ….. lodged appeal
o Fefence constitutionally invalid …. Unavailable to parents charged with offence
of assault
- Physical force upon child as means of corrective educational discipline is long-
established part of civilization ….. parents afforded with uniquely independent authority
in raising their children and thus state didn’t interfere in the exercise of the rights, duties
and responsibilities of parents in the upbringing of their children
- Some parents abused their children under the guise of religion
o Childish misbehavior or misconduct as a sign of demonic possession that
required the use of more force or physical pain to deliver their children from evil
spirits
o Thus children subject to savage and brutal chastisement without any legal
protection whatsoever from that cruel or excessive punishment
o “a parent … may for purposes of correcting what is evil in a child inflict moderate
and reasonable corporeal punishment always however with this condition that is
moderate and reasonable.”
- What is the best interests of the child?
- Is chastisement unconstitutional?
 o Freedom of religion distinguishes reasonable and moderate parental
chastisement from assault and abuse of children
o Not every parents , who out of religious or cultural considerations chastises their
children as a way of instilling or enforcing discipline or consequence
management, intends to harm or does actually harm and abuse their children.
o Reality: just as a verbal reprimand could have an even more traumatizing or
brutalizing effect and an eduring negative impact on wellbeing of a child, so can
chastisement that is unreasonable and immoderate
- All forms of violence
o Constitutional rights that could be relied on to determine validity of reasonable
and moderate chastisement
 S 12(1) (c ) of constitution:
 “everyone has the right to freedom and security of the person,
including the right to be free from all forms of violence from
either public or private sources”
o Assault= “ 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”
o Chastisement does by its very nature entail the use of force or a measure of
violence
o It is the bite of force applied or threatened that is hoped to be remembered to
restrain a child from misbehaviour whenever the urge or temptation to do
wrong comes
o Objective is always to cause displeasure, discomfort , fear or hurt
o Moderate and reasonable chastisement amounts to legally excusable assault
o In terms of our law, the application of force, including a touch, depending on its
location and meaning , or a threat thereof constitutes assault
o What is usually criminally punishable , but for common-law defence of moderate
and reasonable chastisement, is indeed what s 12(1) (c ) seeks to prevent, then
children would be protected by that section like everyone else
o All forms of violence means moderate, reasonable and extreme forms of
violence
o Parental chastisement of a child, however moderate or reasonable, does meet
the threshold requirement of violence proscribed by this constitutional provision
and therefore limits the right in s 12 (1) (c )
- The right to human dignity
o S 10 of constitution provides “ everyone has inherent dignity and the right to
have their dignity respected and protected”
o Children are constitutionally recognized independent human beings , inherently
entitled to the enjoyment of human rights, regardless of whether they are
orphans or have parents.
o Th word everyone provided for in this section includes children
o Foundational to the enjoyment of the right to childhood is the promotion of the
right as far as possible to live in a secure and nurturing environment free from
violence , fear want and avoidable harm
 o There is a sense of shame, a sense that something has been subtracted from
one’s human whole, and a feeling of being less dignified than before, that comes
with the administration of chastisement to whatever degree
o Moderate and reasonable chastisement does impair the dignity of a child and
thus limits their s 10 constitutional right
- Justifiable analysis
o Sections 10 and 12 provide for the protection of human dignity and the freedom
and security of the person, respectively, in the bill of rights
o S 36 of constitution provides for possible limitations:
 Rights in bill of rights may be limited only in terms of law of general
application to the extent that the limitation is reasonable and justifiable
in an open and democratic society based on human dignity, equality and
freedom , taking into account all relevant factors:
a. Nature of the right
b. Importance of the purpose of the limitation
c. Nature and extent of limitation
d. Relation between the limitation and its purpose
e. Less restrictive means to achieve the purpose
o Defence is a law of general application and may therefore potentially limit the
rights in bill of rights
o Defence available to all parents , regardless of their religious, cultural or other
persuasions , when charged with assault of their children
o Limits constitutional rights to dignity and to be protected from all forms of
violence
- The nature, purpose and importance of limitation
o Parental chastisement is significantly different from institutionalized
administration of corporeal punishment that has been abolished
o One is intimate and administrated by a loving parent whereas the other is cold,
detached and implemented by a stranger of sorts
o Parents have inherent obligation to raise their child to become a responsible
member or society whose delinquency they stand to be blamed for, whereas
strangers like teachers had an official and possibly less caring duty to punish
o Defence doesn’t necessarily exclude the unlawfulness of the chastisement and a
criinal conviction of assault but only allows the assault to go unpunished on
account of its triviality
o Barring anger, frustration , abuse of intoxicating substances or sheer
irresponsibility, parents who truly chastise their children on the love-driven
religipus or cultural bases do not always intend to abuse or traumatize their
children for they resumably love them and want only the best for them
o Use of methos of discipline invariably produces negative consequences?
o Properly managed reasonable and moderate chastisement could arguably yield
positive results and accommodate the love-inspired consequence management
contended for by FOR
- The nature of the affected interests and rights
o Section 28(2) of the constitution provides that
 A childs best interests are of paramount importance in every matter
concerning the child (children are the most vulnerable)
  So young that incapable of lodging complaint about abusive or
potentially injurious treatment or punishment
 Ignorant of what they could do to alert the law enforcement authorities
to actual harmful parental conduct
o the state is obliged to respect, protect and proote and fulfil a childs s 28
protenctions
o entitlement to chastise a child reasonably and moderately , of parmount
importance should be the best interest of the child in respect of protection from
potential abuse and the need to limit the right because of good a child and
society stand to derive from its retention as a disciplinary tool
- the extent of the limitation an its relation to purpose
o one of the instruments for instilling discipline in their children is the
administration of moderate and reasonable chastisement
o foundation is both religious and cultural in character enjoyment of ones
constitutional right of freedom or religion or culture
o the right to freedom of relgion does not expressly provide for parental
entitltement to administer moderate and reaonsbale chastisement to the child
nor does any provision of constitution acknowledge the existence of a cultural
right to the same effect
o positive parenting reduces the need to enforce discipline by resporting to
potentially violent methods … it could replace occasionally harsh and
inconsistent parenting with non-violent and consistent strategies for discipline ,
like positive commands, tangible rewards and problem solving
o chastisement is meant to discipline and help a child appreciate consequence
management
 purpose: TO MOULD A CHILD INTO A RESPONSIBLE MEMBER OF
SOCIETY
 if there exists a disciplinary mechanism or measure that is more
consistent with love, care , the more balanced protection of the rights
and advancement of the wellbeing of a child, and another that is less
so , the former must be preferred for it gives expression to what is in the
best interest of child
o the application of force or a resort to violence, which could be harmful or
abused, cannot, in circumstances where there is an effective non-violent option
available, be said to be consonant with the best interests of a child
o moderate and reasonable chastisement as a tool for discipline cannot be
retained at the expence of a cholds fundamental right to dignity
- less restrictive means to achieve purpose
o availability of less restrictive means to achieve discipline
o option of last resot employed only when all else fails
o educating a child about good behaviour and the dos and ont of life
o effective child-parent communication to help a child realise the adverse
consequences of unacceptable conduct and to generally guide her on how to
best behave in life
o the right to be free from all forms of violence or to be treated with dignity,
coupled with what chastisement does in reality entail , as well as the availability
 or less restrictive means m, speaks quite forcefully against the preservation of
the common-law defence of reasonable and moderate parental chastisement
- conclusion
o any form of violence has always constituted a criminal act known as assault
o to exempt parents from prosecution or conviction
o identical conduct by a person other than a parent on the same child would
constitute as defence
o common-law defence of reasonable and moderate chastisement is
constitutionally invalid