2020 volume 4 p 861

• Date: 14 October 2020
• Published date: 14 October 2020

TO SMACK OR NOT TO SMACK IS NO LONGER A QUEST ION 861

[ISSN 0257 – 7747] TSAR 2020

. 4

TO SMACK OR NOT TO SMACK IS NO LONGER A QUESTION: NO

DEFENCE OF REASONABLE CHASTISEMENT

Freedom of Religion South Africa v Ministe r of Justice 2020 1 SA 1 (CC)

1 Introduction

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the world, just listen; you will hear the sound of a child being smacked (spanked).

Although this description is biased, as not all South Af ricans discipline their

children in the s ame way, it does contain an element of truth. Many South Af ricans

were smacked as children a nd in turn discipline their chi ldren in the same way.

The constitutional court in this judgment accepted that traditionally South African

law has “conceded to parents a uniquely independent authority in raising their

children” (par 8) and the st ate has not in the past intervened when parents exercise d

their rights and duties as parents. However, there has been public disapproval of

abuse of children since the late nineteenth centu ry and legal measures have been

adopted to protect children against abuse (par 9). South African parents were

entitled to use “moderate and reasonable chastisement” ( par 2) when disciplining

their children a nd the use of physical chastisement did not resu lt in them facing

criminal charges unless it exceeded the bounds of “moderate and reasonable” (par

2). The view held by the English case law and apparently copied by some South

African courts was referred to in paragraph 10 by the constitutional court as if it

was part of South Afr ican law:

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corporal punishment always however with this condition that it is moderate and reasonable. If it be

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nature or d egree, or if it be protr acted beyond the chi ld’s power of endurance or with an i nstrument

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punishment i s excessive and the violence is un lawful” (Regina v Hople y (1860) 2 F&F 202, as cited

in R v Janke & Janke 1913 TPD 382 385).

If the boundaries of “moder ate and reasonable” chastisement were crossed then the

parents could be punished , as this was regarded by the cour t as ill-treatment or abuse

of childr en (par 11). Section 50(1) and (2) of the Chi ld Care Act 74 of 1983 provided

that parental mist reatment of a child was a punish able offence. The court held that

South African law has developed over time and now the Children’s Act 38 of 2005

provides for the rights of children and contains measures that protect children (s 7

– best interests of the child st andard, s 9 – best interests of child paramou nt and s

10 – child participation – par 12).

One of the parental responsibilities and rights accorded to parents in terms of

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Act as, amongst other things, “providing the child with living conditions that

are conducive to the child’s health, well-being and development” (1(a)(iii));

“safeguarding and promot ing the well-being of the child” (1(b)); “protecting the

child from maltreat ment, abuse, neglect, degradation, di scrimination, exploitation

and any other physical, emotional or moral harm or hazards” (1(c)); “respecting;

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infringement of, the child’s rights…” (1(d)); and guiding, assisting and directing

the child’s behaviour, upbringing and education (1(e), (f) and (g)). Additionally, it

includes “maintaini ng a sound relationship with the child” (1(h)); “accommodating

2020 TSAR 861

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