Freedom of Religion South Africa v Minister of Justice and Constitutional Development and Others

• Jurisdiction: South Africa

Freedom of Religion South Africa v Minister of Justice and Constitutional Development and Others
2020 (1) SACR 113 (CC)

2020 (1) SACR p113

Citation	2020 (1) SACR 113 (CC)
Case No	CCT 320/17; [2019] ZACC 34
Court	Constitutional Court
Judge	Mogoeng CJ, Basson AJ, Cameron J, Dlodlo AJ, Froneman J, Goliath AJ, Khampepe J, Mhlantla J, Petse AJ and Theron J
Heard	September 29, 2019
Judgment	September 29, 2019
Counsel	RS Willis (with NL Badenhorst) for the applicant.; NH Maenetje SC (with A Mofokeng) for the first and second respondents.; AM Skelton for the fifth, sixth and seventh respondents.; E Webber for the amici curiae.

Flynote : Sleutelwoorde

Assault — Common assault — Defences — Parent's right to moderate and reasonable chastisement of child — Constitutionally invalid.

Headnote : Kopnota

In this case a child was assaulted by his father, the state brought a charge of common assault against the man, and a magistrate convicted him (see [5]). The man appealed, and the High Court, in the course of dismissing the appeal, mero motu found the defence of moderate and reasonable chastisement to be inconsistent with the Constitution and invalid (see [6]).

Here the Constitutional Court granted Freedom of Religion South Africa (FoR), an amicus below, leave to intervene as a party, and direct access; and FoR sought leave to appeal the High Court's declaration (see [13], [20] and [28]).

The court found that chastisement, even if moderate and reasonable, was violence within the meaning of s 12(1)(c) of the Constitution — 'the right to be free from all forms of violence' — and so limited that right (see [36], [39] and [44]). It also limited s 10, the right to dignity (see [45] and [48]).

And it further found that the defence of moderacy and reasonableness was, on a charge flowing from chastisement, an unjustified limitation of those rights (see [50] and [71]).

In coming to this conclusion it considered: the difference between chastisement administered by a parent, and that by an institution (see [51]); that invalidating the defence might remove a culturally or religiously directed form of child discipline (see [52]); the vulnerability of children (see [55]); the constitutional obligation to protect a child's rights (see [56]); that neither the Constitution nor international law recognised a parent's right to

2020 (1) SACR p114

chastise (see [63]); that little had been advanced to suggest chastisement was in a child's best interests (see [65]); and that there were less restrictive means to instil discipline (see [68]).

It declared the common-law defence of moderate and reasonable chastisement inconsistent with ss 10 and 12(1)(c) of the Constitution; and it refused leave to appeal (see [76]).

Cases cited

Southern Africa

AB and Another v Minister of Social Development 2017 (3) SA 570 (CC) (2017 (3) BCLR 267; [2016] ZACC 43): referred to

Campus Law Clinic, University of KwaZulu-Natal v Standard Bank of South Africa Ltd and Another 2006 (6) SA 103 (CC) (2006 (6) BCLR 669; [2006] ZACC 5): referred to

Christian Education South Africa v Minister of Education 2000 (4) SA 757 (CC) (2000 (10) BCLR 1051; [2000] ZACC 11): referred to

Director of Public Prosecutions, Transvaal v Minister of Justice and Constitutional Development and Others 2009 (2) SACR 130 (CC) (2009 (4) SA 222; 2009 (7) BCLR 637; [2009] ZACC 8): referred to

Ferreira v Levin NO and Others; Vryenhoek and Others v Powell NO and Others 1996 (1) SA 984 (CC) (1996 (1) BCLR 1; [1995] ZACC 13): dictum in para [234] applied

Lawyers for Human Rights and Another v Minister of Home Affairs and Another 2004 (4) SA 125 (CC) (2004 (7) BCLR 775; [2004] ZACC 12): dictum in para [18] applied

Le Roux and Others v Dey (Freedom of Expression Institute and Restorative Justice Centre as Amici Curiae) 2011 (3) SA 274 (CC) (2011 (6) BCLR 577; [2011] ZACC 4): referred to

MR v Minister of Safety and Security 2016 (2) SACR 540 (CC) (2016 (10) BCLR 1326; [2016] ZACC 24): referred to

R v Janke and Janke 1913 TPD 382: referred to

R v Jolly and Others 1923 AD 176: referred to

R v M 1961 (2) SA 60 (O): referred to

S v M (Centre for Child Law as Amicus Curiae) 2007 (2) SACR 539 (CC) (2008 (3) SA 232; 2007 (12) BCLR 1312; [2007] ZACC 18): referred to

S v Ntuli 1975 (1) SA 429 (A): referred to

S v Williams and Others 1995 (2) SACR 251 (CC) (1995 (3) SA 632; 1995 (7) BCLR 861; [1995] ZACC 6): dictum in para [52] applied

S v YG 2018 (1) SACR 64 (GJ): referred to

University of Witwatersrand Law Clinic v Minister of Home Affairs and Another 2008 (1) SA 447 (CC) (2007 (7) BCLR 821; [2007] ZACC 8): dictum in para [6] applied

Zondi v MEC for Traditional and Local Government Affairs and Others 2005 (3) SA 589 (CC) (2005 (4) BCLR 347; [2004] ZACC 19): dictum in paras [12] – [13] applied.

England

R v Hopley (1860) 2 F and F 202: referred to.

Case Information

RS Willis (with NL Badenhorst) for the applicant.

NH Maenetje SC (with A Mofokeng) for the first and second respondents.

AM Skelton for the fifth, sixth and seventh respondents.

E Webber for the amici curiae.

2020 (1) SACR p115

An appeal against a judgment of the Gauteng Local Division.

Order

1.

The application for direct access is granted.

2.

Freedom of Religion South Africa is granted leave to intervene.

3.

The application for leave to appeal is dismissed.

4.

It is declared that the common-law defence of reasonable and moderate parental chastisement is inconsistent with the provisions of ss 10 and 12(1)(c) of the Constitution.

5.

There will be no order as to costs.

Judgment

Mogoeng CJ (Basson AJ, Cameron J, Dlodlo AJ, Froneman J, Goliath AJ, Khampepe J, Mhlantla J, Petse AJ and Theron J concurring):

Introduction

[1] The adage 'spare the rod, spoil the child' stares us in the face here. [1] It challenges our foresight and capacity to bring Solomonic wisdom to bear on a sensitive, complex and controversial matter of national importance — child discipline.

[2] Many parents contend that they bear the primary duty to lovingly raise their children in terms of their religious, cultural and other 'non-harmful' beliefs, which entail the administration of moderate and reasonable chastisement, without being exposed to the risk of criminal charges or a criminal record.

[3] The entitlement of parents to administer that chastisement without attracting adverse legal consequences was declared unconstitutional by the High Court of South Africa, Gauteng Local Division, Johannesburg. This declaration was based on the infringement of several constitutional rights that a child enjoys. [2]

[4] This then is an application for leave to challenge the declaration of constitutional invalidity of a parent's right to administer reasonable and moderate chastisement to her child. It remains a valid defence against a charge of common assault throughout South Africa, except for Gauteng.

Background

[5] This matter began as a trial of assault with intent to do grievous bodily harm in the Johannesburg Magistrates' Court. The father abused his 13-year-old son for watching pornographic material. The violence meted out to the son also took the form of vicious kicking and punching. The father could not, therefore, have justifiably raised the defence of reasonable and moderate chastisement or relied on any religious or cultural ground to justify that unmistakably immoderate and unreasonable application of force. Unsurprisingly, he was convicted of common

2020 (1) SACR p116

Mogoeng CJ (Basson AJ, Cameron J, Dlodlo AJ, Froneman J, Goliath AJ, Khampepe J, Mhlantla J, Petse AJ and Theron J concurring)

assault. I deliberately refrain from saying any more about the assault on the wife, except that it also led to a similar conviction. I do so because it bears no relevance to the defence of reasonable and moderate chastisement of a child.

[6] Aggrieved by the outcome, the father lodged an appeal to the High Court. Although the state did not challenge the constitutional validity of the common-law right of parents to chastise their children moderately and reasonably, the court of its own accord decided the issue. It declared the defence to be constitutionally invalid and, therefore, prospectively unavailable to parents charged with the offence of assault (common or with the intent to do grievous bodily harm) upon their children.

[7] The history and nature of parents' legal authority to inflict reasonable and moderate corporal punishment upon their children deserves some attention. And I will borrow quite generously from Burchell & Milton, [3] who did a brilliant job in capturing the essence of this subject.

[8] The use of physical force upon a child as a means of corrective educational discipline is a long-established part of civilisation. [4] In line with the social importance attributed to the family unit in all societies, the law has traditionally conceded to parents a uniquely independent authority in raising their children. For this reason, the state did not interfere in the exercise of the rights, duties and responsibilities of parents in the upbringing of their children. [5]

[9] Some parents reportedly abused their children under the guise of religion. They viewed childish misbehaviour or misconduct as a sign of demonic possession that required the use of more force or physical pain to deliver their children from evil spirits. This then resulted in many children being regularly subjected to savage and brutal chastisement without any legal protection whatsoever from that cruel or excessive punishment. [6] Societal outcry against this abuse dates as far back as the late nineteenth century, which led to the adoption of legal measures to curb child abuse and afford greater legal protection to children. [7]

[10] In this spirit, Cockburn CJ said:

'A parent . . . may for the purpose of correcting what is evil in...