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 2)
2021
, 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: 14 July 2021
RESEARCH THEME SELECTED: RESEARCH TOPIC 2: Comparative approach
MARK RECEIVED FOR ASSIGNMENT 01: 100%
,Table of Contents
1. INTRODUCTION ................................................................................................................... 4
2. PROBLEM STATEMENT ...................................................................................................... 5
3. HYPOTHESIS ........................................................................................................................ 6
4. POINTS OF DEPARTURE AND ASSUMPTIONS ............................................................... 6
5. CONCEPTUALISATION OF CENTRAL RESEARCH THEMES ..................................... 8
5.1 Right of chastisement .............................................................................................................. 8
5.2 Corporal punishment ............................................................................................................... 8
5.3 Reasonable and moderate punishment ................................................................................ 8
5.4 Section 28 of the Constitution of the Republic of South Africa, 1996 .............................. 9
5.5 Section 58 of the Children’s Act 2004 in England ............................................................... 9
6. Chapter layout ...................................................................................................................... 9
7. PROJECTED TIME SCALE ................................................................................................ 10
8. DESCRIPTION OF RESEARCH METHOD ........................................................................ 10
9. PREPARATORY STUDY AND RESEARCH ..................................................................... 11
10. CONCLUSION ................................................................................................................... 13
Bibliography ........................................................................................................................... 15
,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 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.2
Recently in Freedom of Religion South Africa v Minister of Justice and Constitutional
Development and Others,3 a 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. The father relied on right of chastisement as a defence
but the Constitutional Court held that chastisement was unconstitutional. However, it
seems chastisement in some parts of UK chastisement is still permissible.
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’,4 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’.5 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 3.6
Thereafter in 2004, the United Kingdom government enacted section 58 of the
Children Act,7 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, 1861.8 The provision also states that ‘reasonable punishment cannot be a
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
CR Snyman, ‘Criminal Law’ (6 edn, Juta 2014) 138.
3
[2019] ZACC 34.
4
Section 47 of Offences Against the Person Act, 1861.
5
European Convention on Human Rights.
6
A v United Kingdom (1999) 27 EHRR 611.
7
Children Act, 2004 in England.
8
Section 58(2)(a)-(b) of the Children’s Act, 2004.
,defence if it constitutes cruelty to persons under the age of 16 as provided in section
1 of the Children and Young Persons Act, 1933.9
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
10
chastisement in homes while preventing other forms of cruel and inhuman punishment.’
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,11
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?
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?
9
Section 58(2)(c) of the Children’s Act, 2004.
10
JM Burchell, ‘Principles of Criminal Law’ (5 edn Juta 2016) 203.
11
Freedom of Religion South Africa v Minister of Justice and Constitutional Development and
Others [2019] ZACC 34.
,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.’12 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 to human dignity.
Chastisement has been abolished as a defence in Scotland and Wales, it is yet to be
abolished in Northern Ireland 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.
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. Mogeong 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. 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.
12
Freedom of Religion South Africa v Minister of Justice and Constitutional Development and
Others [2019] ZACC 34 [para 24].
,Under English common law, parents may administer reasonable punishment.
Following the judgement in A v United Kingdom,13 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.
Scotland enacted the Children (Equal Protection from Assault) (Scotland) Act came
into effect in 2019 and it states 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
14
assault, ceases to have effect.’
Wales has also since assented the Children (Abolition of Defence of Reasonable
Punishment) (Wales) Act 2020 in March 2020 which will commence in 2022.
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.
In the second place, for this research I will use a comparative method. This research
will make a comparison of the legal position of chastisement in the UK with the
current legal position in South Africa by taking legislation, case law, journal articles,
books, academic writings and any other relevant source into consideration.
ASSUMPTIONS:
It is not necessary for me to prove that the Constitution is the supreme law of the
land and therefore no law can supersede the provisions of the Constitution. Any law
that proves to be inconsistent or is not aligned with the Constitution is deemed to be
unconstitutional.
This research does not include the historical development of the UK legal system.
13
(1999) 27 EHRR 611.
14
Section 1(1) of the Children (Equal Protection from Assault) (Scotland) Act, 2019.
, 5. CONCEPTUALISATION OF CENTRAL RESEARCH THEMES
5.1 Right of chastisement
The only people that have a right to administer corporal punishment are parents
as well as people who are in loco parentis.15 In South Africa, chastisement of
children by their parents was declared unconstitutional but on the contrary,
chastisement in England and Northern Ireland is permissible but has been
abolished in Scotland,16 and Wales.17 Under common English law, parents may
administer moderate and reasonable chastisement as a means of correcting or
disciplining the child.
5.2 Corporal punishment
Corporal punishment is physical punishment that involves inflicting pain on
another person such spanking or hitting someone for the purposes of disciplining
or correcting the wrongdoer. It is ‘the use of physical force causing pain, but not
wounds, as a means of discipline’.18
5.3 Reasonable and moderate punishment
Punishment applied to acts of wrongdoing are regarded as reasonable and
bounds of moderation are dependent on the surrounding circumstances of the
case such as age, gender of the child, the force applied and the nature of the
offence just to name a few.19 Parents have to valid reasons of punishing the child.
Cockburn CJ stated that:
‘A parent… may for the purpose of correcting what is evil in the child inflict moderate and
reasonable corporal punishment always however with this condition that is moderate and
reasonable. If it be administered for the gratification of passion or of rage, or if it be
immoderate and excessive in its nature or degree, or if it be protracted beyond the child’s
power of endurance or with an instrument unfitted for the purpose and calculated to produce
danger to life and limb, in all such cases the punishments is excessive and the violence is
20
unlawful.’
15
G Kemp (ed), S Walker, R Palmer, D Baqwa and C Gevers, Criminal Law in South Africa (3
edn, Oxford University Press Southern Africa 2012) 139.
16
Children (Equal Protection from Assault) (Scotland) Act, 2019.
17
Children (Abolition of Defence of Reasonable Punishment) (Wales) Act, 2020.
18
UNICEF, ‘Teach, don’t hit! Awareness Campaign Against Corporal Punishment of Children in
Families’ (Save the Children’s Resource Centre, 24 February 2016)
<https://www.google.com/url?sa=t&source=web&rct=j&url=https://resoucecentre.savethechildre
n.net/node/1609/pdf/1609.pdf&ved=2ahUKEwi50e-
K4MbxAhVkR0EAHXh0BzoQFjAUegQIHhAC&usg=AOvVaw3GL_th_IZNi5RQnaP2zbr3>
accessed 28 June 2021.
19
Lekgathe 1982 3 SA 104 (B) 109 B-C.
20
R v Hopley (1860) 2 F and F 202, cited in R v Janke 1913 TPD 382 [para 385].
, 5.4 Section 28 of the Constitution of the Republic of South Africa, 1996
Section 28(2) of the Constitution makes provision that the best interests of a child
of are of paramount importance in all matters concerning children.
5.5 Section 58 of the Children’s Act 2004 in England
This section limits reasonable punishment as defence wounds the child or cause
grievous bodily harm, the assault causes actual harm on the body or it amounts
to cruelty to the child.21 It essentially states that ‘Battery of a child causing actual
bodily harm to the child cannot be justified in any civil proceedings on the ground
that it constituted reasonable punishment.’22
6. Chapter layout
Chapter 1 This introductory chapter contains the
terms and general concepts of the
research. It will outline the background
information, research problem and
methodology.
Chapter 2 This chapter will analyse the current legal
position of chastisement in South African
law including relevant case law and
provisions.
Chapter 3 This chapter evaluates the legal position
with regards to chastisement in the four
parts of the UK namely; England,
Scotland, Wales and Northern Ireland.
Chapter 4 This chapter will be a comparative
analysis of the legal position in UK and
South Africa. It will be evaluating the
differences and similarities, if any, in
South African and the UK legal systems
pertaining to chastisement of children by
their parents.
21
Section 58(2)(a)-(c) of the Children’s Act 2004.
22
Section 58(3) of the Children’s Act 2004.
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 2)
2021
, 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: 14 July 2021
RESEARCH THEME SELECTED: RESEARCH TOPIC 2: Comparative approach
MARK RECEIVED FOR ASSIGNMENT 01: 100%
,Table of Contents
1. INTRODUCTION ................................................................................................................... 4
2. PROBLEM STATEMENT ...................................................................................................... 5
3. HYPOTHESIS ........................................................................................................................ 6
4. POINTS OF DEPARTURE AND ASSUMPTIONS ............................................................... 6
5. CONCEPTUALISATION OF CENTRAL RESEARCH THEMES ..................................... 8
5.1 Right of chastisement .............................................................................................................. 8
5.2 Corporal punishment ............................................................................................................... 8
5.3 Reasonable and moderate punishment ................................................................................ 8
5.4 Section 28 of the Constitution of the Republic of South Africa, 1996 .............................. 9
5.5 Section 58 of the Children’s Act 2004 in England ............................................................... 9
6. Chapter layout ...................................................................................................................... 9
7. PROJECTED TIME SCALE ................................................................................................ 10
8. DESCRIPTION OF RESEARCH METHOD ........................................................................ 10
9. PREPARATORY STUDY AND RESEARCH ..................................................................... 11
10. CONCLUSION ................................................................................................................... 13
Bibliography ........................................................................................................................... 15
,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 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.2
Recently in Freedom of Religion South Africa v Minister of Justice and Constitutional
Development and Others,3 a 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. The father relied on right of chastisement as a defence
but the Constitutional Court held that chastisement was unconstitutional. However, it
seems chastisement in some parts of UK chastisement is still permissible.
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’,4 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’.5 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 3.6
Thereafter in 2004, the United Kingdom government enacted section 58 of the
Children Act,7 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, 1861.8 The provision also states that ‘reasonable punishment cannot be a
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
CR Snyman, ‘Criminal Law’ (6 edn, Juta 2014) 138.
3
[2019] ZACC 34.
4
Section 47 of Offences Against the Person Act, 1861.
5
European Convention on Human Rights.
6
A v United Kingdom (1999) 27 EHRR 611.
7
Children Act, 2004 in England.
8
Section 58(2)(a)-(b) of the Children’s Act, 2004.
,defence if it constitutes cruelty to persons under the age of 16 as provided in section
1 of the Children and Young Persons Act, 1933.9
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
10
chastisement in homes while preventing other forms of cruel and inhuman punishment.’
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,11
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?
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?
9
Section 58(2)(c) of the Children’s Act, 2004.
10
JM Burchell, ‘Principles of Criminal Law’ (5 edn Juta 2016) 203.
11
Freedom of Religion South Africa v Minister of Justice and Constitutional Development and
Others [2019] ZACC 34.
,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.’12 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 to human dignity.
Chastisement has been abolished as a defence in Scotland and Wales, it is yet to be
abolished in Northern Ireland 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.
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. Mogeong 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. 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.
12
Freedom of Religion South Africa v Minister of Justice and Constitutional Development and
Others [2019] ZACC 34 [para 24].
,Under English common law, parents may administer reasonable punishment.
Following the judgement in A v United Kingdom,13 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.
Scotland enacted the Children (Equal Protection from Assault) (Scotland) Act came
into effect in 2019 and it states 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
14
assault, ceases to have effect.’
Wales has also since assented the Children (Abolition of Defence of Reasonable
Punishment) (Wales) Act 2020 in March 2020 which will commence in 2022.
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.
In the second place, for this research I will use a comparative method. This research
will make a comparison of the legal position of chastisement in the UK with the
current legal position in South Africa by taking legislation, case law, journal articles,
books, academic writings and any other relevant source into consideration.
ASSUMPTIONS:
It is not necessary for me to prove that the Constitution is the supreme law of the
land and therefore no law can supersede the provisions of the Constitution. Any law
that proves to be inconsistent or is not aligned with the Constitution is deemed to be
unconstitutional.
This research does not include the historical development of the UK legal system.
13
(1999) 27 EHRR 611.
14
Section 1(1) of the Children (Equal Protection from Assault) (Scotland) Act, 2019.
, 5. CONCEPTUALISATION OF CENTRAL RESEARCH THEMES
5.1 Right of chastisement
The only people that have a right to administer corporal punishment are parents
as well as people who are in loco parentis.15 In South Africa, chastisement of
children by their parents was declared unconstitutional but on the contrary,
chastisement in England and Northern Ireland is permissible but has been
abolished in Scotland,16 and Wales.17 Under common English law, parents may
administer moderate and reasonable chastisement as a means of correcting or
disciplining the child.
5.2 Corporal punishment
Corporal punishment is physical punishment that involves inflicting pain on
another person such spanking or hitting someone for the purposes of disciplining
or correcting the wrongdoer. It is ‘the use of physical force causing pain, but not
wounds, as a means of discipline’.18
5.3 Reasonable and moderate punishment
Punishment applied to acts of wrongdoing are regarded as reasonable and
bounds of moderation are dependent on the surrounding circumstances of the
case such as age, gender of the child, the force applied and the nature of the
offence just to name a few.19 Parents have to valid reasons of punishing the child.
Cockburn CJ stated that:
‘A parent… may for the purpose of correcting what is evil in the child inflict moderate and
reasonable corporal punishment always however with this condition that is moderate and
reasonable. If it be administered for the gratification of passion or of rage, or if it be
immoderate and excessive in its nature or degree, or if it be protracted beyond the child’s
power of endurance or with an instrument unfitted for the purpose and calculated to produce
danger to life and limb, in all such cases the punishments is excessive and the violence is
20
unlawful.’
15
G Kemp (ed), S Walker, R Palmer, D Baqwa and C Gevers, Criminal Law in South Africa (3
edn, Oxford University Press Southern Africa 2012) 139.
16
Children (Equal Protection from Assault) (Scotland) Act, 2019.
17
Children (Abolition of Defence of Reasonable Punishment) (Wales) Act, 2020.
18
UNICEF, ‘Teach, don’t hit! Awareness Campaign Against Corporal Punishment of Children in
Families’ (Save the Children’s Resource Centre, 24 February 2016)
<https://www.google.com/url?sa=t&source=web&rct=j&url=https://resoucecentre.savethechildre
n.net/node/1609/pdf/1609.pdf&ved=2ahUKEwi50e-
K4MbxAhVkR0EAHXh0BzoQFjAUegQIHhAC&usg=AOvVaw3GL_th_IZNi5RQnaP2zbr3>
accessed 28 June 2021.
19
Lekgathe 1982 3 SA 104 (B) 109 B-C.
20
R v Hopley (1860) 2 F and F 202, cited in R v Janke 1913 TPD 382 [para 385].
, 5.4 Section 28 of the Constitution of the Republic of South Africa, 1996
Section 28(2) of the Constitution makes provision that the best interests of a child
of are of paramount importance in all matters concerning children.
5.5 Section 58 of the Children’s Act 2004 in England
This section limits reasonable punishment as defence wounds the child or cause
grievous bodily harm, the assault causes actual harm on the body or it amounts
to cruelty to the child.21 It essentially states that ‘Battery of a child causing actual
bodily harm to the child cannot be justified in any civil proceedings on the ground
that it constituted reasonable punishment.’22
6. Chapter layout
Chapter 1 This introductory chapter contains the
terms and general concepts of the
research. It will outline the background
information, research problem and
methodology.
Chapter 2 This chapter will analyse the current legal
position of chastisement in South African
law including relevant case law and
provisions.
Chapter 3 This chapter evaluates the legal position
with regards to chastisement in the four
parts of the UK namely; England,
Scotland, Wales and Northern Ireland.
Chapter 4 This chapter will be a comparative
analysis of the legal position in UK and
South Africa. It will be evaluating the
differences and similarities, if any, in
South African and the UK legal systems
pertaining to chastisement of children by
their parents.
21
Section 58(2)(a)-(c) of the Children’s Act 2004.
22
Section 58(3) of the Children’s Act 2004.
