lOMoAR
CHASTISEMENT OF CHILDREN – HISTORICAL APPROACH
By
Lazarus Khosa
STUDENT NUMBER:
64222403
Submitted in partial fulfilment of the requirements for the degree
LLB
In the
SCHOOL OF LAW
UNIVERSITY OF SOUTH AFRICA
SUPERVISOR: Prof L Pienaar & Ms U Poyo
(ASSIGNMENT NUMBER 03 UNIQUE NO: 890554
2021
1
, lOMoARcPSD|
CONTENTS:…………………………………………………………………………PAGE
I. Cover page………………………………………………………………..….page 1
II. Content page……………….……………………………………………..…page 2
1. INTRODUCTION………………………………………………………………………..…… 3
2. PROBLEM STATEMENT………………………………………………………………..…. 4
3. HYPOTHESIS……………………………………………………………………...…….…4-5
4. POINTS OF DEPARTURE AND ASSUMPTIONS……………………………..…………6
5. CONCEPTIAL…………………………………………………………………………..….…7
5.1 1 Chastisement of children position in the past ………………………………….7
5.2 Current legislation position ………………...…………………………………………… 7
5.2.1 Children’s Act 38 of 2005…………………………………………………………...……7
5.2.2 Domestic Violence Act 116 of 1998……………………………………….……………8
5.2.3 The South African Schools Act 84 of 1996 and other legislation………………8
5.2.4 The Amendment Bill – attempts at law reform ……………………...……………. 8
5.3 . South African Human Rights report …………..………………………………….. 8-9
5.4 Other South African legal obligations (reports) ………..……………..……………..9
5.5 CONSTITUTION……………………………………………………………………………..9
5.6 CASE LAW………………………………………………………………..…………..……10
5.6.1 Prescribed case……………………………………………………...…………………10
6. PROPOSED CHAPTER…………………………………………………….………..……11
7. PROJECTED TIME FRAME………………………………………………….…….…… 11
8. DESCRIPTION OF PROPOSED RESEARCH METHODOLOGY…………….……. 12
9. CONCLUSION…………………………………………………………………………..…12
10. BIBLIOGRAPHY…………………………………………………………………..……..13
11. DECLARATION…………………………………………………………………….…….14
, lOMoARcPSD|433
1. INTRODUCTION
International and regional treaties sustain that the child have the right to be free from all
forms of violence. It seems that in line with the uniform principles and codes imbedded
in the international and regional treaties, the Constitution of South Africa makes specific
provision for the protection of the fundamental rights of the child.
In South Africa, until recently, the discipline of children by their parents in their homes
was allowed, provided such discipline or chastisement was moderate and reasonably
justified. This was a common law defence for a charge of assault on a child by a parent.
The Constitutional Court (ConCourt) changed this position on corporal punishment in
the case of Freedom of Religion South Africa v Minister of Justice and Constitutional
Development and Others [2019] ZACC 34 where it ruled that the common law defence
of reasonable and moderate chastisement is unconstitutional as it unjustifiably violates
section 10 of the Constitution of the Republic of South Africa, which states that
"everyone has inherent dignity and the right to have their dignity respected and
protected" and section 12 (1)(c) thereof which states that "everyone has the right to
freedom and security of the person, which includes the right to be free from all forms of
violence from either public or private sources." As part of the ConCourt's reasoning it
found that the right to be free from all forms of violence from both public and private
sources includes violence in the form of reasonable and moderate chastisement.
This research evaluates the historical advancement of approach into children chastisement
as time and the laws changed over the years. The research will not only focus on one single
law but all the laws that deal with children’s rights from the very beginning up to the current
law.
Emphasis will be placed on the history of children chastisement approach as provided by:
The Constitution, Children’s rights, Legislation, Case laws, Law reform reports and journal
articles.
1 Freedom of Religion South Africa v Minister of Justice and Constitutional Development and Others [2019] ZACC 34
2 Section 10 of the Constitution of South Africa 1996
3 https://www.mondaq.com/southafrica/constitutional-administrative-law/876062/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 (accessed on
24 October 2021
CHASTISEMENT OF CHILDREN – HISTORICAL APPROACH
By
Lazarus Khosa
STUDENT NUMBER:
64222403
Submitted in partial fulfilment of the requirements for the degree
LLB
In the
SCHOOL OF LAW
UNIVERSITY OF SOUTH AFRICA
SUPERVISOR: Prof L Pienaar & Ms U Poyo
(ASSIGNMENT NUMBER 03 UNIQUE NO: 890554
2021
1
, lOMoARcPSD|
CONTENTS:…………………………………………………………………………PAGE
I. Cover page………………………………………………………………..….page 1
II. Content page……………….……………………………………………..…page 2
1. INTRODUCTION………………………………………………………………………..…… 3
2. PROBLEM STATEMENT………………………………………………………………..…. 4
3. HYPOTHESIS……………………………………………………………………...…….…4-5
4. POINTS OF DEPARTURE AND ASSUMPTIONS……………………………..…………6
5. CONCEPTIAL…………………………………………………………………………..….…7
5.1 1 Chastisement of children position in the past ………………………………….7
5.2 Current legislation position ………………...…………………………………………… 7
5.2.1 Children’s Act 38 of 2005…………………………………………………………...……7
5.2.2 Domestic Violence Act 116 of 1998……………………………………….……………8
5.2.3 The South African Schools Act 84 of 1996 and other legislation………………8
5.2.4 The Amendment Bill – attempts at law reform ……………………...……………. 8
5.3 . South African Human Rights report …………..………………………………….. 8-9
5.4 Other South African legal obligations (reports) ………..……………..……………..9
5.5 CONSTITUTION……………………………………………………………………………..9
5.6 CASE LAW………………………………………………………………..…………..……10
5.6.1 Prescribed case……………………………………………………...…………………10
6. PROPOSED CHAPTER…………………………………………………….………..……11
7. PROJECTED TIME FRAME………………………………………………….…….…… 11
8. DESCRIPTION OF PROPOSED RESEARCH METHODOLOGY…………….……. 12
9. CONCLUSION…………………………………………………………………………..…12
10. BIBLIOGRAPHY…………………………………………………………………..……..13
11. DECLARATION…………………………………………………………………….…….14
, lOMoARcPSD|433
1. INTRODUCTION
International and regional treaties sustain that the child have the right to be free from all
forms of violence. It seems that in line with the uniform principles and codes imbedded
in the international and regional treaties, the Constitution of South Africa makes specific
provision for the protection of the fundamental rights of the child.
In South Africa, until recently, the discipline of children by their parents in their homes
was allowed, provided such discipline or chastisement was moderate and reasonably
justified. This was a common law defence for a charge of assault on a child by a parent.
The Constitutional Court (ConCourt) changed this position on corporal punishment in
the case of Freedom of Religion South Africa v Minister of Justice and Constitutional
Development and Others [2019] ZACC 34 where it ruled that the common law defence
of reasonable and moderate chastisement is unconstitutional as it unjustifiably violates
section 10 of the Constitution of the Republic of South Africa, which states that
"everyone has inherent dignity and the right to have their dignity respected and
protected" and section 12 (1)(c) thereof which states that "everyone has the right to
freedom and security of the person, which includes the right to be free from all forms of
violence from either public or private sources." As part of the ConCourt's reasoning it
found that the right to be free from all forms of violence from both public and private
sources includes violence in the form of reasonable and moderate chastisement.
This research evaluates the historical advancement of approach into children chastisement
as time and the laws changed over the years. The research will not only focus on one single
law but all the laws that deal with children’s rights from the very beginning up to the current
law.
Emphasis will be placed on the history of children chastisement approach as provided by:
The Constitution, Children’s rights, Legislation, Case laws, Law reform reports and journal
articles.
1 Freedom of Religion South Africa v Minister of Justice and Constitutional Development and Others [2019] ZACC 34
2 Section 10 of the Constitution of South Africa 1996
3 https://www.mondaq.com/southafrica/constitutional-administrative-law/876062/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 (accessed on
24 October 2021
