By Shereen Volks, Head of Divorce & Family Law, STBB | Smith Tabata Buchanan Boyes
The question of whether parents should be allowed to chastise their children has been a heavily debated topic over the past couple of years. In terms of South African common law, parents were allowed to chastise their children, provided that such chastisement was reasonable. Parents could then raise a special defence of reasonable chastisement against assault charges arising therefrom. This principle was confirmed in the judgment of R v Janke and Janke 1913 TPD 382 and in numerous judgments thereafter. To date, no legislation has been promulgated to either regulate what constitutes reasonable chastisement or to prohibit it completely.
It has, however, been argued (after the promulgation of the interim Constitution and later the 1996 Constitution, which focusses on human rights) that chastisement constitutes an infringement on these very rights. In line with this reasoning, the promulgation of the Schools Act, Act 84 of 1996, prohibits chastisement at schools.
The recent judgment in the Gauteng High Court, YG v S 2018 (1) SACR 64 (GJ), took a stance against the defence of reasonable chastisement when it was tasked with determining whether this defence is unconstitutional. The father in this matter (the accused) was charged with assault with intention to do grievous bodily harm after he repeatedly smacked his 13-year-old son. The accused’s defence was that he was merely exercising his parental right of reasonable chastisement.
The court found that even if parents’ actions fall within the scope of reasonable chastisement, there is still an element of physical violence involved and it therefore infringes on the child’s right to bodily integrity and dignity. Furthermore, allowing the defence of reasonable chastisement takes away children’s right to equal protection under the law and undermines the state’s obligation to protect children from violence. The infringement on children’s rights could not be reasonably justified and therefore the court held that the defence of reasonable chastisement is unconstitutional.
According to the court, doing away with the defence of reasonable chastisement would not result in harsh criminal sanctions being imposed on all parents found guilty of assault, as these parents should rather be sent for prevention and intervention services with the aim of promoting positive parenting.
Until this matter is dealt with in the Constitutional Court, this judgment does not have a binding effect on any court outside the jurisdiction of the Gauteng High Court. However, it will be considered when any other court is faced with answering the same question.