CHASTISEMENT OF CHILDREN BY THEIR PARENTS: A COMPARATIVE
STUDY OF THE LEGAL POSITION IN SOUTH AFRICA AND THE UK
By
ZANDILE GUMEDE
63626624
Submitted in partial fulfilment of the requirements for the LLB degree
BACHELOR OF LAWS
In the
SCHOOL OF LAW
UNIVERSITY OF SOUTH AFRICA
SUPERVISOR: Prof L PIENAAR
(ASSIGNMENT 3)
2021
1
, 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.
NAME: Zandile Gumede
SIGNATURE: Gumede
STUDENT NUMBER: 63626624
MODULE CODE: LME3701
DATE: 22 Oct. 2021
RESEARCH THEME SELECTED: RESEARCH TOPIC 2: Comparative approach
MARK RECEIVED FOR ASSIGNMENT 01: 100%
MARK RECEIVED FOR ASSIGNMENT 02: 90%
2
,Table of Contents
1. INTRODUCTION ........................................................................................................ 4
2. PROBLEM STATEMENT .......................................................................................... 6
3. HYPOTHESIS ............................................................................................................ 7
4. POINTS OF DEPARTURE AND ASSUMPTIONS ................................................... 8
5. CONCEPTUALISATION OF CENTRAL RESEARCH THEMES ........................ 10
5.1 Right of chastisement ................................................................................................ 10
5.2 Corporal punishment ................................................................................................. 10
5.3 Reasonable and moderate punishment.................................................................. 11
5.4 Section 28 of the Constitution of the Republic of South Africa, 1996 ................ 11
5.5 Section 58 of the Children‟s Act 2004 in England ................................................. 12
6. CHAPTER LAYOUT ................................................................................................ 12
7. PROJECTED TIME SCALE .................................................................................... 13
8. DESCRIPTION OF RESEARCH METHOD ............................................................ 13
9. CONCLUSION ......................................................................................................... 14
10. BIBLIOGRAPHY .................................................................................................... 15
3
,1. INTRODUCTION
This research focuses a study on South African and the United Kingdom’s laws
pertaining to chastisement by their parents. After corporal punishment was banned in
the South African education system, the only people who still had a right to
administer chastisement were parents of the children.1 Physical chastisement can
take form in, but not limited to smacking with hand, spanking, slapping, kicking,
pulling and shaking, pinching and forcing children to hold in an uncomfortable
position.2 However, such punishment could not go beyond reasonable and moderate
punishment and parents could only chastise their children in order to educate,
correct or discipline their children.3
‘The manner in which a parent exercises discipline is deeply embedded in their culture and/or
religion, which is problematic because parents hide behind their cultural and religious beliefs
4
to conceal child abuse.’
Recently in Freedom of Religion South Africa v Minister of Justice and Constitutional
Development and Others,5 a Muslim father of a 13 year old son was charged with
assault with intent to do grievous bodily harm for violently kicking and punching his
son after catching him watching porn which is abominable according to Islamic
principles and beliefs and the father relied on right of chastisement as a defence. In
its judgment, the court took the Constitution into consideration with specific reference
to the rights of children under section 28, the right to dignity and the right be treated
free from all forms of violence as stipulated in section 10 and 12 of the Constitution
respectively. Moegoeng CJ stressed that the word „everyone‟ in the provisions
includes children as well. The court had the task of determining whether
chastisement was in the best interest of the child as stipulated in section 28 of the
Constitution. The Constitutional Court came to the conclusion that chastisement
1
G Kemp (ed), S Walker, R Palmer, D Baqwa, C Gevers, B Leslie and A Steynberg, ‘Criminal
Law in South Africa‟ (3 edn, OXFORD university press 2018) 139.
2
Ian Leggat, ‘Smacking ban: What is Scotland’s new law on physical discipline and punishment
of children and when does it come into effect?’ The Scotsman (Scotland, 6 November 2020)
<https://www,scotsman.com/lifestyle/family/smacking-ban-what-scotlands-new-law-physical-
disclipine-and-punishment-children-and-when-does-it-come-effect-3027641> accessed on 25
August 2021.
3
CR Snyman, „Criminal Law‟ (6 edn, Juta 2014) 138.
4
De Oliveira V, ‘South Africa: Reasonable and Moderate Chastisement Declared
Unconstitutional: Is it the Beginning of the End of Violence Against Children Under the Guise of
Religion and Culture or is it Interference by the State on Parenthood’ (17 December 2019)
Mondaq.
5
[2019] ZACC 34.
4
,infringes children’s right to dignity and freedom of violence. Therefore, chastisement
was declared unconstitutional. The Constitutional Court’s ruling encourages parents
to find more positive and less harsh ways of disciplining their children which;
according to Vasco de Oliveira, „will allow children to grow up as responsible adults
and to make a significant contribution to society.‟6
However, it seems chastisement in some parts of UK chastisement is still
permissible. Physical chastisement is usually justified as a means of administering
discipline by correcting bad or dangerous behaviour but the welfare of the child
should be taken into consideration.7 The European Court of Human Rights, in
September 1998, heard a matter where a stepfather to a nine year old boy was
charged with ‘assault occasioning in actual bodily harm’,8 for hitting his stepchild, (A),
with a cane. The jury found the stepfather’s act as reasonable punishment. A then
applied to the commission on the 15th of July 1994 contending that his stepfather
violated Article 3 of the Convention which states ‘No one shall be subjected to torture
or to inhuman or degrading treatment or punishment’.9 The court held in the act of
beating a child with a garden cane was inhuman and degrading punishment as it
was a violation of Article 3.10 Thereafter in 2004, the United Kingdom government
enacted section 58 of the Children Act,11 which makes provision that ‘reasonable
punishment cannot be a defence to a charge under sections 18, 20 or 47 of the
Offences Against the Person Act, 1861.12 The provision also states that ‘reasonable
punishment cannot be a defence if it constitutes cruelty to persons under the age of
16 as provided in section 1 of the Children and Young Persons Act, 1933.13
In article by Paul and Sadie Spink, they state that:
‘It is possible to identify factors that will determine whether or not a parent has the requisite
evil intent at the moment he or she inflicts physical punishment on a child. These include the
nature and force of the punishment (including the point of the blow), the repetition or the
6
De Oliveira V, ‘South Africa: Reasonable and Moderate Chastisement Declared
Unconstitutional: Is it the Beginning of the End of Violence Against Children Under the Guise of
Religion and Culture or is it Interference by the State on Parenthood’ (17 December 2019)
Mondaq.
7
Spink P and Spink S, ‘What is reasonable chastisement?’ (1999) 44(6) L Society of Scotland.
8
Section 47 of Offences Against the Person Act, 1861.
9
European Convention on Human Rights.
10
A v United Kingdom (1999) 27 EHRR 611.
11
Children Act, 2004 in England.
12
Section 58(2)(a)-(b) of the Children’s Act, 2004.
13
Section 58(2)(c) of the Children’s Act, 2004.
5
, duration of the punishment, the manner and method of its execution, the age, sex and health
14
of the child, and the blameworthiness or dangerousness of the child’s conduct.’
While Burchell argues that:
‘One of the weaknesses of the pragmatic approach in the United Kingdom (and the European
Court of Human Rights) is that it seems to presuppose some level of permissible corporal
15
chastisement in homes while preventing other forms of cruel and inhuman punishment.’
He further advises that it would have been a much easier task to simply abolish all
forms of corporal punishment regardless of whether or not such punishment exceeds
reasonable and moderate punishment, in order to avoid confusion and constantly
having to define what is considered as reasonable punishment.16
This research undertakes a comparative study on the current legal position in South
Africa and the United Kingdom regarding chastisement.
2. PROBLEM STATEMENT
The purpose of this research is to evaluate the constitutionality of chastisement of
children by their parents in South Africa, consider the relevant Constitutional rights
that were considered in the recent case of Freedom of Religion South Africa,17
which could have given rise to amendments to legislation. The purpose of this
research is to also compare the current position in South Africa regarding
chastisement and the position in the UK.
This research will incorporate and include the following aspects:
a) Why did the Constitutional Court declare chastisement as unconstitutional in
the judgment of Freedom of Religion South Africa v Minister of Justice and
Constitutional Development and Others [2019] ZACC 34?
b) What is the legal position pertaining to chastisement of children by their
parents in the UK?
c) Does section 58 of the Children’s Act, 2004 apply to all four countries in the
UK?
14
P Spink and S Spink, ‘What is reasonable chastisement?’ (1999) 44(6) L Society of Scotland.
15
JM Burchell, ‘Principles of Criminal Law’ (5 edn Juta 2016) 203.
16
JM Burchell, ‘Principles of Criminal Law’ (5 edn Juta 2016) 203.
17
Freedom of Religion South Africa v Minister of Justice and Constitutional Development and
Others [2019] ZACC 34.
6
, d) What is the legal effect of banning chastisement in Scotland and Wales?
e) When does chastisement exceed the bounds of reasonable and moderate
punishment?
3. HYPOTHESIS
This research aims to clearly draw a distinction between our South African legal
system and the UK regarding chastisement.
In Freedom of Religion South Africa case, Chief Justice Moegoeng with reference to
section 28(2) of the Constitution stated that ‘At the heart of this application lie issues
relating to what is in the best interests of the children. And children are a vulnerable
group whose interests are of paramount importance.’18 He went on to further stress
that children are delicate and are not always able to protect themselves. Moreover,
the unconstitutionality of the right of chastisement by parents was declared on
grounds that it infringed the constitutional right under sections 10 (right to dignity), 12
(free from all forms of violence and not be treated or punished in a cruel, inhuman or
degrading way) and that was not in the best interest of the child.
Several institutions of the European Union have voiced criticism of the defence of
reasonable chastisement.19 Chastisement has been abolished as a defence in
Scotland and Wales, which in effect means that children will now have the same
protection as adults from physical assault. The new laws do not entirely prohibit
parents from disciplining their children but it criminalises using physical punishment
to administer discipline.20 In Northern Ireland it is yet to be abolished as debates
about banning physical chastisement are still being held but in England reasonable
punishment is permitted but with limitations provided for in section 58 of the Children
Act 2004. Corporal punishment will not be considered as reasonable and moderate if
it leaves a wound, bruise or a mark on the child but a smack that is open-handed
and doesn’t leave a mark is considered as reasonable.
18
Freedom of Religion South Africa v Minister of Justice and Constitutional Development and
Others [2019] ZACC 34 [para 24].
19
R Arthur, ‘Corporal Punishment: Reforming the law in Britain and Ireland’ (2005) 3(1) J of
Commonwealth L and Legal Education 5.
20
R Mosalski, ‘Wales has passed a law to make smacking a child illegal’ Wales Online (28
January 2020) <https://www.walesonline.co.uk/news/politics/wales-today-votes-makes-parents-
17638955 > accessed 3 September 2021.
7
,4. POINTS OF DEPARTURE AND ASSUMPTIONS
POINTS OF DEPARTURE:
In the first place, this research will be approached by looking at the research problem
from a combination of a Constitutional law and an International law perspective.
In the South African landmark case regarding chastisement of children by their
parents, the court declared chastisement unconstitutional by taking the provisions of
the Constitution into consideration. Mogoeng CJ stated that section 10 and 12 of the
Constitution applies to children because of the word ‘everyone’. Children also need
to be treated with dignity and the court questioned whether physical chastisement
was violating this Constitutional right that we all have to dignity. Children have a right
to dignity,21 to equal protection under law,22 to be treated free from all forms of
violence,23 not to be treated in in cruel, inhuman and degrading punishment,24 in the
same way as adults do. They also have the right to be protected from maltreatment,
neglect, abuse or degradation.25 The court also took section 28 of the Constitution
and questioned if it would be in the best interests of the child to regard physical
chastisement as constitutional.
According to Snyman,26 there are unresolved issues in the FORSA case. He
highlights that the judgment by the court does not suggest alternative forms of
discipline parents may resort to in order to prevent their children from ill and bad
behaviour as well as correcting them from repeating wrongdoings. He goes on to
mention an important aspect to chastisement namely; verbal chastisement, the
judgment paid no attention to it and such type of chastisement could also harmfully
affect the child if it involves disparagement.27 Moreover, the issue created by the
FORSA case will remain greatly problematic until such a time when legislature
decides to exercise its function and enforces the prohibition of chastisement through
legislation by creating a criminal offence.28
21
Section 10 of the Constitution of the Republic of South Africa, 1996 (hereinafter referred as the
Constitution.
22
Section 9(3) of the Constitution.
23
Section 12(1)(c) of the Constitution.
24
Section 12(1)(e) of the Constitution.
25
Section 28(1)(d) of the Constitution.
26
Snyman CR, Criminal Law (7 edn, LexisNexis 2021).
27
Snyman CR, Criminal Law (7 edn, LexisNexis 2021) 119.
28
Snyman CR, Criminal Law (7 edn, LexisNexis 2021) 120.
8
, Under English common law, parents may administer reasonable punishment.
Following the judgement in A v United Kingdom,29 which dealt with a stepfather
exceeding the bounds of reasonable punishment, the United Kingdom government
enacted section 58 of the Children Act 2004 in England which made provision for
reasonable punishment.
However physical chastisement was banned in Scotland making it the first part of UK
to abolish physical punishment as a defence for parents which means that parents
could face prosecution for punishing their children using physical force. Scotland has
repealed section 51 (physical punishment of children) of the Criminal Justice
(Scotland) Act 2003,30 and enacted the Children (Equal Protection from Assault)
(Scotland) Act which came into effect in 2019. The Act places children in the position
of having equal protection from assault, section 1 of the Act stipulates that
‘The rule of law, that the physical punishment of a child in the exercise of a parental right or
right derived from having charge or care of the child is justifiable and is therefore not an
31
assault, ceases to have effect.’
The Welsh government has also since assented the Children (Abolition of Defence
of Reasonable Punishment) (Wales) Act 2020 in March 2020. The purpose of this
Act is to protect and promote children’s rights, it is said that the act will commence in
2022 and it stipulates that:
‘(1) The common law defence of reasonable punishment is abolished in relation to corporal
punishment of a child taking place in Wales.
(2) Accordingly, corporal punishment of a child taking place in Wales cannot be justified in
32
any civil or criminal proceeding on ground that it constituted reasonable punishment.’
Chastisement in Northern Ireland is still permissible but the Justice Minister is
considering the ban of physical chastisement but until such a time that the ban
comes into effect, ‘reasonable chastisement’ remains a defence for parents who
physically punish their children.
29
(1999) 27 EHRR 611.
30
Section 1(2) of the Children (Equal Protection from Assault) Act 2019.
31
Section 1(1) of the Children (Equal Protection from Assault) (Scotland) Act, 2019.
32
Section 1 of the Children (Abolition of Defence of Reasonable Punishment) Wales Act 2020.
9
STUDY OF THE LEGAL POSITION IN SOUTH AFRICA AND THE UK
By
ZANDILE GUMEDE
63626624
Submitted in partial fulfilment of the requirements for the LLB degree
BACHELOR OF LAWS
In the
SCHOOL OF LAW
UNIVERSITY OF SOUTH AFRICA
SUPERVISOR: Prof L PIENAAR
(ASSIGNMENT 3)
2021
1
, 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.
NAME: Zandile Gumede
SIGNATURE: Gumede
STUDENT NUMBER: 63626624
MODULE CODE: LME3701
DATE: 22 Oct. 2021
RESEARCH THEME SELECTED: RESEARCH TOPIC 2: Comparative approach
MARK RECEIVED FOR ASSIGNMENT 01: 100%
MARK RECEIVED FOR ASSIGNMENT 02: 90%
2
,Table of Contents
1. INTRODUCTION ........................................................................................................ 4
2. PROBLEM STATEMENT .......................................................................................... 6
3. HYPOTHESIS ............................................................................................................ 7
4. POINTS OF DEPARTURE AND ASSUMPTIONS ................................................... 8
5. CONCEPTUALISATION OF CENTRAL RESEARCH THEMES ........................ 10
5.1 Right of chastisement ................................................................................................ 10
5.2 Corporal punishment ................................................................................................. 10
5.3 Reasonable and moderate punishment.................................................................. 11
5.4 Section 28 of the Constitution of the Republic of South Africa, 1996 ................ 11
5.5 Section 58 of the Children‟s Act 2004 in England ................................................. 12
6. CHAPTER LAYOUT ................................................................................................ 12
7. PROJECTED TIME SCALE .................................................................................... 13
8. DESCRIPTION OF RESEARCH METHOD ............................................................ 13
9. CONCLUSION ......................................................................................................... 14
10. BIBLIOGRAPHY .................................................................................................... 15
3
,1. INTRODUCTION
This research focuses a study on South African and the United Kingdom’s laws
pertaining to chastisement by their parents. After corporal punishment was banned in
the South African education system, the only people who still had a right to
administer chastisement were parents of the children.1 Physical chastisement can
take form in, but not limited to smacking with hand, spanking, slapping, kicking,
pulling and shaking, pinching and forcing children to hold in an uncomfortable
position.2 However, such punishment could not go beyond reasonable and moderate
punishment and parents could only chastise their children in order to educate,
correct or discipline their children.3
‘The manner in which a parent exercises discipline is deeply embedded in their culture and/or
religion, which is problematic because parents hide behind their cultural and religious beliefs
4
to conceal child abuse.’
Recently in Freedom of Religion South Africa v Minister of Justice and Constitutional
Development and Others,5 a Muslim father of a 13 year old son was charged with
assault with intent to do grievous bodily harm for violently kicking and punching his
son after catching him watching porn which is abominable according to Islamic
principles and beliefs and the father relied on right of chastisement as a defence. In
its judgment, the court took the Constitution into consideration with specific reference
to the rights of children under section 28, the right to dignity and the right be treated
free from all forms of violence as stipulated in section 10 and 12 of the Constitution
respectively. Moegoeng CJ stressed that the word „everyone‟ in the provisions
includes children as well. The court had the task of determining whether
chastisement was in the best interest of the child as stipulated in section 28 of the
Constitution. The Constitutional Court came to the conclusion that chastisement
1
G Kemp (ed), S Walker, R Palmer, D Baqwa, C Gevers, B Leslie and A Steynberg, ‘Criminal
Law in South Africa‟ (3 edn, OXFORD university press 2018) 139.
2
Ian Leggat, ‘Smacking ban: What is Scotland’s new law on physical discipline and punishment
of children and when does it come into effect?’ The Scotsman (Scotland, 6 November 2020)
<https://www,scotsman.com/lifestyle/family/smacking-ban-what-scotlands-new-law-physical-
disclipine-and-punishment-children-and-when-does-it-come-effect-3027641> accessed on 25
August 2021.
3
CR Snyman, „Criminal Law‟ (6 edn, Juta 2014) 138.
4
De Oliveira V, ‘South Africa: Reasonable and Moderate Chastisement Declared
Unconstitutional: Is it the Beginning of the End of Violence Against Children Under the Guise of
Religion and Culture or is it Interference by the State on Parenthood’ (17 December 2019)
Mondaq.
5
[2019] ZACC 34.
4
,infringes children’s right to dignity and freedom of violence. Therefore, chastisement
was declared unconstitutional. The Constitutional Court’s ruling encourages parents
to find more positive and less harsh ways of disciplining their children which;
according to Vasco de Oliveira, „will allow children to grow up as responsible adults
and to make a significant contribution to society.‟6
However, it seems chastisement in some parts of UK chastisement is still
permissible. Physical chastisement is usually justified as a means of administering
discipline by correcting bad or dangerous behaviour but the welfare of the child
should be taken into consideration.7 The European Court of Human Rights, in
September 1998, heard a matter where a stepfather to a nine year old boy was
charged with ‘assault occasioning in actual bodily harm’,8 for hitting his stepchild, (A),
with a cane. The jury found the stepfather’s act as reasonable punishment. A then
applied to the commission on the 15th of July 1994 contending that his stepfather
violated Article 3 of the Convention which states ‘No one shall be subjected to torture
or to inhuman or degrading treatment or punishment’.9 The court held in the act of
beating a child with a garden cane was inhuman and degrading punishment as it
was a violation of Article 3.10 Thereafter in 2004, the United Kingdom government
enacted section 58 of the Children Act,11 which makes provision that ‘reasonable
punishment cannot be a defence to a charge under sections 18, 20 or 47 of the
Offences Against the Person Act, 1861.12 The provision also states that ‘reasonable
punishment cannot be a defence if it constitutes cruelty to persons under the age of
16 as provided in section 1 of the Children and Young Persons Act, 1933.13
In article by Paul and Sadie Spink, they state that:
‘It is possible to identify factors that will determine whether or not a parent has the requisite
evil intent at the moment he or she inflicts physical punishment on a child. These include the
nature and force of the punishment (including the point of the blow), the repetition or the
6
De Oliveira V, ‘South Africa: Reasonable and Moderate Chastisement Declared
Unconstitutional: Is it the Beginning of the End of Violence Against Children Under the Guise of
Religion and Culture or is it Interference by the State on Parenthood’ (17 December 2019)
Mondaq.
7
Spink P and Spink S, ‘What is reasonable chastisement?’ (1999) 44(6) L Society of Scotland.
8
Section 47 of Offences Against the Person Act, 1861.
9
European Convention on Human Rights.
10
A v United Kingdom (1999) 27 EHRR 611.
11
Children Act, 2004 in England.
12
Section 58(2)(a)-(b) of the Children’s Act, 2004.
13
Section 58(2)(c) of the Children’s Act, 2004.
5
, duration of the punishment, the manner and method of its execution, the age, sex and health
14
of the child, and the blameworthiness or dangerousness of the child’s conduct.’
While Burchell argues that:
‘One of the weaknesses of the pragmatic approach in the United Kingdom (and the European
Court of Human Rights) is that it seems to presuppose some level of permissible corporal
15
chastisement in homes while preventing other forms of cruel and inhuman punishment.’
He further advises that it would have been a much easier task to simply abolish all
forms of corporal punishment regardless of whether or not such punishment exceeds
reasonable and moderate punishment, in order to avoid confusion and constantly
having to define what is considered as reasonable punishment.16
This research undertakes a comparative study on the current legal position in South
Africa and the United Kingdom regarding chastisement.
2. PROBLEM STATEMENT
The purpose of this research is to evaluate the constitutionality of chastisement of
children by their parents in South Africa, consider the relevant Constitutional rights
that were considered in the recent case of Freedom of Religion South Africa,17
which could have given rise to amendments to legislation. The purpose of this
research is to also compare the current position in South Africa regarding
chastisement and the position in the UK.
This research will incorporate and include the following aspects:
a) Why did the Constitutional Court declare chastisement as unconstitutional in
the judgment of Freedom of Religion South Africa v Minister of Justice and
Constitutional Development and Others [2019] ZACC 34?
b) What is the legal position pertaining to chastisement of children by their
parents in the UK?
c) Does section 58 of the Children’s Act, 2004 apply to all four countries in the
UK?
14
P Spink and S Spink, ‘What is reasonable chastisement?’ (1999) 44(6) L Society of Scotland.
15
JM Burchell, ‘Principles of Criminal Law’ (5 edn Juta 2016) 203.
16
JM Burchell, ‘Principles of Criminal Law’ (5 edn Juta 2016) 203.
17
Freedom of Religion South Africa v Minister of Justice and Constitutional Development and
Others [2019] ZACC 34.
6
, d) What is the legal effect of banning chastisement in Scotland and Wales?
e) When does chastisement exceed the bounds of reasonable and moderate
punishment?
3. HYPOTHESIS
This research aims to clearly draw a distinction between our South African legal
system and the UK regarding chastisement.
In Freedom of Religion South Africa case, Chief Justice Moegoeng with reference to
section 28(2) of the Constitution stated that ‘At the heart of this application lie issues
relating to what is in the best interests of the children. And children are a vulnerable
group whose interests are of paramount importance.’18 He went on to further stress
that children are delicate and are not always able to protect themselves. Moreover,
the unconstitutionality of the right of chastisement by parents was declared on
grounds that it infringed the constitutional right under sections 10 (right to dignity), 12
(free from all forms of violence and not be treated or punished in a cruel, inhuman or
degrading way) and that was not in the best interest of the child.
Several institutions of the European Union have voiced criticism of the defence of
reasonable chastisement.19 Chastisement has been abolished as a defence in
Scotland and Wales, which in effect means that children will now have the same
protection as adults from physical assault. The new laws do not entirely prohibit
parents from disciplining their children but it criminalises using physical punishment
to administer discipline.20 In Northern Ireland it is yet to be abolished as debates
about banning physical chastisement are still being held but in England reasonable
punishment is permitted but with limitations provided for in section 58 of the Children
Act 2004. Corporal punishment will not be considered as reasonable and moderate if
it leaves a wound, bruise or a mark on the child but a smack that is open-handed
and doesn’t leave a mark is considered as reasonable.
18
Freedom of Religion South Africa v Minister of Justice and Constitutional Development and
Others [2019] ZACC 34 [para 24].
19
R Arthur, ‘Corporal Punishment: Reforming the law in Britain and Ireland’ (2005) 3(1) J of
Commonwealth L and Legal Education 5.
20
R Mosalski, ‘Wales has passed a law to make smacking a child illegal’ Wales Online (28
January 2020) <https://www.walesonline.co.uk/news/politics/wales-today-votes-makes-parents-
17638955 > accessed 3 September 2021.
7
,4. POINTS OF DEPARTURE AND ASSUMPTIONS
POINTS OF DEPARTURE:
In the first place, this research will be approached by looking at the research problem
from a combination of a Constitutional law and an International law perspective.
In the South African landmark case regarding chastisement of children by their
parents, the court declared chastisement unconstitutional by taking the provisions of
the Constitution into consideration. Mogoeng CJ stated that section 10 and 12 of the
Constitution applies to children because of the word ‘everyone’. Children also need
to be treated with dignity and the court questioned whether physical chastisement
was violating this Constitutional right that we all have to dignity. Children have a right
to dignity,21 to equal protection under law,22 to be treated free from all forms of
violence,23 not to be treated in in cruel, inhuman and degrading punishment,24 in the
same way as adults do. They also have the right to be protected from maltreatment,
neglect, abuse or degradation.25 The court also took section 28 of the Constitution
and questioned if it would be in the best interests of the child to regard physical
chastisement as constitutional.
According to Snyman,26 there are unresolved issues in the FORSA case. He
highlights that the judgment by the court does not suggest alternative forms of
discipline parents may resort to in order to prevent their children from ill and bad
behaviour as well as correcting them from repeating wrongdoings. He goes on to
mention an important aspect to chastisement namely; verbal chastisement, the
judgment paid no attention to it and such type of chastisement could also harmfully
affect the child if it involves disparagement.27 Moreover, the issue created by the
FORSA case will remain greatly problematic until such a time when legislature
decides to exercise its function and enforces the prohibition of chastisement through
legislation by creating a criminal offence.28
21
Section 10 of the Constitution of the Republic of South Africa, 1996 (hereinafter referred as the
Constitution.
22
Section 9(3) of the Constitution.
23
Section 12(1)(c) of the Constitution.
24
Section 12(1)(e) of the Constitution.
25
Section 28(1)(d) of the Constitution.
26
Snyman CR, Criminal Law (7 edn, LexisNexis 2021).
27
Snyman CR, Criminal Law (7 edn, LexisNexis 2021) 119.
28
Snyman CR, Criminal Law (7 edn, LexisNexis 2021) 120.
8
, Under English common law, parents may administer reasonable punishment.
Following the judgement in A v United Kingdom,29 which dealt with a stepfather
exceeding the bounds of reasonable punishment, the United Kingdom government
enacted section 58 of the Children Act 2004 in England which made provision for
reasonable punishment.
However physical chastisement was banned in Scotland making it the first part of UK
to abolish physical punishment as a defence for parents which means that parents
could face prosecution for punishing their children using physical force. Scotland has
repealed section 51 (physical punishment of children) of the Criminal Justice
(Scotland) Act 2003,30 and enacted the Children (Equal Protection from Assault)
(Scotland) Act which came into effect in 2019. The Act places children in the position
of having equal protection from assault, section 1 of the Act stipulates that
‘The rule of law, that the physical punishment of a child in the exercise of a parental right or
right derived from having charge or care of the child is justifiable and is therefore not an
31
assault, ceases to have effect.’
The Welsh government has also since assented the Children (Abolition of Defence
of Reasonable Punishment) (Wales) Act 2020 in March 2020. The purpose of this
Act is to protect and promote children’s rights, it is said that the act will commence in
2022 and it stipulates that:
‘(1) The common law defence of reasonable punishment is abolished in relation to corporal
punishment of a child taking place in Wales.
(2) Accordingly, corporal punishment of a child taking place in Wales cannot be justified in
32
any civil or criminal proceeding on ground that it constituted reasonable punishment.’
Chastisement in Northern Ireland is still permissible but the Justice Minister is
considering the ban of physical chastisement but until such a time that the ban
comes into effect, ‘reasonable chastisement’ remains a defence for parents who
physically punish their children.
29
(1999) 27 EHRR 611.
30
Section 1(2) of the Children (Equal Protection from Assault) Act 2019.
31
Section 1(1) of the Children (Equal Protection from Assault) (Scotland) Act, 2019.
32
Section 1 of the Children (Abolition of Defence of Reasonable Punishment) Wales Act 2020.
9
