Abstract
Corporal punishment for children in South African homes is unconstitutional following the Constitutional Court judgment in Freedom of Religion South Africa v Minister of Justice and Constitutional Development 2020 1 SA 1 (KH) (or FOR SA). Chief Justice Mogoeng Mogoeng started his ruling by explaining why parental chastisement was initially recognised as an established common-law defence: because of the social importance of the family unit, the legal system was willing to afford parents unique independent powers regarding their children’s upbringing. To have succeeded with the common-law defence of parental chastisement, the corporal punishment had to be reasonable and moderate, and those who exceeded these bounds faced criminal prosecution. To limit and sanction this kind of exceedance, the South African legislature laid down measures such as the Children’s Act.
Against this backdrop, Justice Mogoeng tackled whether the defence of parental chastisement could still be reconciled with the Constitution of the Republic of South Africa, 1996. Among others, the court focused on the constitutional rights entrenched in sections 12(1)(c) and 10. In terms of the former, the court could not imagine any form of parental chastisement falling outside the definition of assault, emphasising that section 12(1)(c) guaranteed all persons the right to be free from all forms of violence from either public or private sources. This, the court believed, included protection from moderate and reasonable parental chastisement. Similarly, the court could not reconcile the parental chastisement defence with the guarantee of human dignity in section 10, commenting on the “sense of shame ... and a feeling of being less dignified than before ... that comes with the administration of chastisement to whatever degree”. Unfortunately, these very arguments regarding sections 12 and 10 cast doubt on the practicability and usefulness of the de minimis non curat lex (or “minor forms of chastisement”) rule that the court later offered as a consolation to confused parents.
The declaration of unconstitutionality comes at a time of crisis in terms of violence against women and children in South Africa, and is understandable from that perspective. Yet the ruling also coincides with an increase in bad behaviour among children, and alarming levels of juvenile crime. To make matters worse, the court left many questions unanswered and instead opted to pass the matter on to parliament and the legislature to determine “an appropriate regulatory framework”. Many scholars agree that parliament is probably as confused as parents about what is expected of them: are they supposed to abolish the defence of parental chastisement by legislation and introduce penal measures for those who disobey the prohibition? Or should they assume that parents who carry on giving hidings at home will be prosecuted for assault through common-law processes? Indeed, prosecution and conviction on a charge of assault is now a very real possibility for parents who administer moderate corporal punishment, and South African courts are likely to see a dramatic increase in such cases. The court’s instruction that administrators of the law are to deal with these matters on a case-by-case basis is equally concerning and could result in vastly different and inconsistent policies on the ground. A further troubling matter is the court’s acknowledgement that any form of punishment has a degrading effect. Ultimately, misconduct by children has to be addressed, which would infringe on their dignity. Does this imply that other modes of punishment for children are also a no-go?
To help search for answers, this article first traces developments in South Africa regarding corporal punishment as a sentencing option and its use schools and at home. It then explores the legal position in other comparable African countries (Botswana, Namibia and Zimbabwe) and Canada. Interestingly, all these jurisdictions currently still permit corporal punishment at home. The legal position in Botswana and Canada is clearly in favour of moderate and reasonable corporal punishment. And despite harsh criticism from the so-called anti-smacker brigade, these two jurisdictions have equipped parents with well-formulated guidelines about what constitutes moderate and reasonable corporal punishment, and what will not be tolerated – the clarity that South African parents also desperately need.
Of course, the FOR SA ruling was welcomed by many, predominantly human rights activists and anti-smackers. Several legal scholars have expressed disappointment at how the Constitutional Court handled the declaration of unconstitutionality. Their criticism is warranted. Prohibiting parents from administering even moderate and reasonable corporal punishment at home, but neglecting to provide them with guidelines about what would be allowed is not good enough. In the absence of any form of guidance, one can only assume that parents who continue to administer (moderate and reasonable) corporal punishment at home risk criminal prosecution. The irony is not lost, as prosecution has always been a possibility where corporal punishment exceeded the bounds of the moderate and the reasonable. This was so even before the Constitutional Court declared the parental chastisement defence unconstitutional. Now, though, prosecution is also a reality for parents who administer moderate and reasonable corporal punishment at home. FOR SA leaves the door only slightly ajar by providing for corporal punishment that may be regarded as de minimis. However, establishing what would be considered (unconstitutional) moderate corporal punishment and (permissible) de minimis corporal punishment will take some racking of brains and is a call that is currently expected to be made on a case-by-case basis. Therefore, one could expect an enormous amount of variation.
It would appear that the only solution for South Africa is to promulgate legislation. Well-formulated legislation would not only offer parents proper guidelines, but would also create an opportunity to establish unique penal measures for those who overstep the mark. These measures may include the compulsory attendance of programmes on good parenting, alternative dispute resolution and diversion – all intended to keep parents out of the criminal justice system. Yet attempts in the early 2000s to amend the corporal punishment provisions of the then Children’s Amendment Bill came to nothing. Parliament’s portfolio committee on social development was deeply divided on the controversial matter, and the ANC caucus intervened even before it could be put to the vote. Therefore, only time will tell whether legislative amendments on corporal punishment will eventually materialise.
Keywords: common-law defence; corporal punishment in the home; de minimis; parental chastisement; reasonable and moderate; unconstitutional
- This article’s featured image was created by Annie Spratt and obtained from Unsplash.