S v Williams: A springboard for further debate about corporal punishment

• Jurisdiction: South Africa
• Citation: 2015 Acta Juridica 336
• Author: Ann Skelton
• Pages: 336-359
• Date: 15 August 2019
• Published date: 15 August 2019

S v Williams: A springboard for further

debate about corporal punishment

ANN SKELTON*

In an early judgment of the Constitutional Court, S v Williams, Justice Langa

found that judicial whippings were unconstitutional because they violated

young offenders’ rights to dignity and humane treatment. Former Chief

Justice Langa was also a member of the unanimous court that found the law

prohibiting corporal punishment in schools to be a reasonable and justif‌iable

infringement of their parents’ right to religious freedom. However,s 12 of the

South African Constitution guarantees everyone the right to be protected

from all forms of violence, either from public or private sources. This

contribution considers how the court might deal with a challenge to the

constitutionality of the common-law defence of reasonable chastisement,

which permits corporal punishment of children by their parents in their own

homes.

I INTRODUCTION

Whipping of young offenders was a major instrument of crime control

during the apartheid era. During the early 1990s the government was

doling out 35 000 judicial whippings every year. In an early judgment of

the Constitutional Court, S v Williams and Others,

1

Langa J (as he then

was) found that judicial whippings were unconstitutional because they

violated young offenders’ rights to dignity and exposed them to cruel,

inhuman or degrading treatment. The judgment eloquently pointed out

that children, no less than adults, have the right be treated with dignity

and humanity – indeed, their rehabilitation and development depends on

it. The state, as the potent, omnipresent teacher should not demonstrate

that violence is a solution.

Former Chief Justice Langa was also a member of the unanimous court

in Christian Education SA v Minister of Education

2

which found the law

prohibiting corporal punishment in schools to be a reasonable and

*Professor and Director of the Centre for Child Law, University of Pretoria; BA LLB

(Natal) LLD (Pretoria).

1

1995 (3) SA632 (CC).

2

2000 (4) SA 757 (CC). Langa J also penned the judgment that dismissed the original

application for direct access to the Constitutional Court by Christian Education South Africa,

handed down on 14 October 1998. Christian Education South Africa v Minister of Education 1999

(2) SA 83 (CC). In rejecting the application, Langa J found that, as the challenge to s 10 was

clearly conf‌ined to the constitutionality of corporal punishment in schools it did not make

inroads into corporal punishment more generally and therefore there was no need to depart

from the general procedure. This observation is intriguing because it suggests that a challenge to

the corporal punishment in the home would have appeared more pressing to the court.

336

2015 Acta Juridica 336

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justif‌iable infringement of their parents’ right to religious freedom. These

two judgments ref‌lect positively on South Africa in the global concern

about violence against children. The court’s message is clear – children

must be protected from violence from public sources. But s 12 of the

South African Constitution guarantees everyone the right to be protected

from all forms of violence, either from public or private sources.

This contribution considers what the Constitutional Court might

make of a hypothetical challenge to the common-law defence of reason-

able chastisement in relation to corporal punishment of children in the

home.

3

At f‌irst glance, the case seems straightforward. After all, an

argument that women should be protected from violence in the work-

place but not from violence at home would cause outrage. The common-

law defence of reasonable chastisement did, in fact, apply to wives at an

earlier time in South African law.

4

Today it remains only children –

ironically the physically smallest and most dependent human beings –

who can lawfully be hit. However, the seemingly irresistible logic of this

argument is no guarantee of a winning case, particularly considering the

emotive nature of the subject matter.

II BACKGROUND TO S v WILLIAMS

In 1947 the Lansdown Commission

5

found that due to a lack of

alternatives, corporal punishment for children should be retained, but

gave direction for the careful regulation of such sentences, and cautioned

that ‘those sitting in judgment should deliberate long before ordering the

inf‌liction of corporal punishment’.

6

Despite this, the cane became the

major solution to crimes committed by children during the apartheid era,

as ‘the South African magistrates corps attempted to lash recalcitrant youth

into submission’.

7

From 1952, courts were compelled to impose corporal

3

South Africa’s common law, articulated in the early cases of R v Janke and Janke 1913 TPD

382 and R v Scheepers 1915 AD 337, is drawn from the dictum of Cockburn CJ stated in the

English case R v Hopley (1860) 2 F&F 202: ‘By the law of England, 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 it is moderate and reasonable.’

4

This was inherited in SouthAfrica through English common law. Blackstone’s Commentar-

ies on the Laws of England (1761–1769) stated that a man may beat his wife in the same way that

he can beat his servants or children because he is responsible for their misdemeanours. This

power was, however, ‘conf‌ined within reasonable bounds’. At the time of Blackstone’s

Commentaries the common law was already in some doubt, but the defence of reasonable

chastisement in relation to a wife was only off‌icially abolished in R v Jackson [1891]1 QB 671.

5

The Penal and Prison Reform Commission, generally known as the Lansdown Commis-

sion, was established in 1945 and submitted a report to Parliament in 1947. Its mandate

included a review of sentencing, including the use of corporal punishment for both children

and adults.

6

Report of the Penal and Prison Reform Commission (1947) para 491.

7

E van der Spuy, W Schärf & J Lever ‘The politics of youth crime and justice in South

Africa’in C Sumner (ed) The Blackwell Companion to Criminology (2004) 167.

337

FURTHER DEBATE ABOUT CORPORAL PUNISHMENT

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