Parents can’t hit their children - it’s unconstitutional‚ court rules

20 October 2017 - 20:11 By Ernest Mabuza
Image: Mark Andrews

The common law defence of reasonable chastisement of children at home is unconstitutional and is no longer applicable in our law.

This order was made by the high court in Johannesburg‚ in the case of a Muslim father who had beaten his son at his home for allegedly watching pornography on one of the family’s tablet devices.

The man‚ referred to as YG to protect the identity of his son‚ was found guilty by the Johannesburg Regional Court on two charges of assault with intent to do grievous bodily harm.

He had also assaulted his wife later on the same day in a different set of circumstances.

The regional court convicted the man but postponed his sentencing for five years as allowed by the Criminal Procedure Act. It allowed him leave to appeal his conviction in the high court.

On appeal‚ the high court raised an issue of whether the defence of moderate chastisement to a charge of assault - based on the common law right of a parent to inflict corporal punishment on his or her child – was compatible with the Constitution.

The court admitted four friends of the court‚ three of whom submitted that the defence of reasonable chastisement was inconsistent with the Constitution.

The fourth friend of the court‚ Freedom of Religion SA (FORSA)‚ said for millions of believers the scriptures commanded reasonable and appropriate correction of their children.

FORSA submitted the court had a duty to respect and protect the religious convictions and beliefs of those believers.

FORSA advocated for the retention of the common-law defence of reasonable chastisement on the basis that it was compatible with the Constitution.

The Minister of Social Development agreed with the three friends of the court‚ that the defence of reasonable chastisement should be declared unconstitutional.

Judge Raylene Keightley said determining this issue would have practical implications for how the State deals with charges of assault involving parents and their children.

“It is important for the State‚ and for parents who may be implicated in the future‚ to know whether common-law defence is still available to the accused person.”

The judge said it was time for the country to march in step with its international obligations under the United Nations Convention on the Rights of the Child by recognising that the reasonable chastisement defence is no longer legally acceptable under our legal dispensation.

“The courts have a duty to take the necessary steps to develop the common law where it infringes constitutional rights‚” Keightley said.

“In my view‚ that duty will be served in this case by an order declaring‚ with prospective effect‚ that the common law defence of reasonable chastisement is no longer applicable in our law.”

Keightley also found that there was no merit in the appeal by the man against the charges of assault in respect of his son and his wife.

The couple is now in the process of divorcing.

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