By Freedom of Religion South Africa

On 18 September 2019, the Constitutional Court declared the common law defence of reasonable and moderate chastisement to be unconstitutional. This defence has historically assisted parents against a charge of assault of their own child/ren, provided of course that the discipline was both reasonable and moderate. (Abuse of, or violence against, children has always been illegal in South Africa).

The practical implication of the Court’s judgment is that all spanking (which here is used to mean any form of physical discipline) – whether on the hand or on the bottom, and regardless of how light or well-intended – and even the threat thereof, is now a criminal offence with criminal consequences for the parent/s involved. (For an article on the practical implications of the judgment, see here). The Court’s judgment is final and cannot be appealed.

This article provides a legal analysis of the Court’s 27-page judgment (written by Chief Justice Mogoeng Mogoeng, with the other judges concurring) in coming to the conclusions, and order, that it did.

Background to the judgment

The judgment was made in the context of an appeal by Freedom of Religion South Africa (FOR SA) against an earlier decision by the Gauteng High Court, involving a Muslim father who had severely beaten his teenage son for watching pornographic material. FOR SA was invited by the High Court be a “Friend of the Court” in the matter and argued that, on the facts, this was a clear case of abuse – which has always been illegal in South African law. As such, the Court should deal with the matter on the facts and in terms of established law, and not use it as a “test case” to decide whether all spanking – no matter how light or well-intentioned – should be made illegal. The High Court, however, disagreed and declared the defence of reasonable and moderate chastisement to be unconstitutional.

Neither the Muslim father nor the State appealed the decision, and thus it was left to FOR SA to appeal to the Supreme Court of Appeal (SCA) in Bloemfontein, which we did. The SCA referred FOR SA to the Constitutional Court, as a result of which we then applied to the Constitutional Court for standing and leave to appeal the judgment of the Gauteng High Court.

Legal Standing, and Leave to Appeal

Against this background, the first question before the Constitutional Court was whether FOR SA – who acted as a “Friend of the Court” (rather than as an actual party) in the High Court – had standing to bring an application for leave to appeal to the Constitutional Court (paras 13 – 80 of the judgment). On this question, the Court agreed with FOR SA that the matter was in the public interest (because it involved the best interests of children), and that it was also in the interests of justice for the matter to be resolved (because it affected the general body of parents and children in the country). What weighed heavily with the Court, was the fact that FOR SA was not seeking to be involved in the matter for the first time. The Court thus granted FOR SA standing to intervene and to bring an application for leave to appeal.

Turning then to the question of leave to appeal (paras 21 – 28 of the judgment), the Court agreed with FOR SA that the application raised an arguable point of law of general public importance which could only be dealt with by the Constitutional Court. The Court also thought that FOR SA had reasonable prospects of success “particularly because some comparable democracies retain the common law defence of reasonable and moderate chastisement”. For these reasons, the Court found that “the interests of justice thus point to the granting of leave to appeal” and also specifically confirmed that “this Court has jurisdiction in this matter” even though, ordinarily, litigants must first go through the SCA in matters involving the application of interpretation of the common law. 

In light of these (solely positive) findings by the Constitutional Court on the question of leave to appeal, the Court’s finding that FOR SA’s “application for leave to appeal is dismissed” (as part of the final order made by the Court) is, with respect, non-sensical. Further reading of the judgment makes it clear that it is FOR SA’s actual appeal that was dismissed, rather than its application for leave to appeal.

The actual appeal

The Court’s decision to effectively outlaw spanking, was primarily based on s 12(1)(c) of the Constitution which states that “everyone has the right to freedom and security of the person, which includes the right to be free from all forms of violence from either public or private sources.” [Own emphasis.] Having found that spanking amounts to violence and is therefore unconstitutional (s 12(1)(c)), the Court found that it also amounted to a violation of human dignity (s 10)).

The Court did not, in its judgment, consider or deal with any of the other fundamental rights  which the other side argued were being violated by the defence of reasonable and moderate chastisement, including the right to equal protection under the law (s 9(3)); the right not to be treated in a cruel, inhuman or degrading way (s 12(1)(e)); the right to bodily and psychological integrity (s 12(2)); or the right of children to be protected from maltreatment, neglect, abuse of degradation (s 28(1)(d)). The Court did however in its judgment reference the right to, and the constitutional principle that, a child’s best interests are of paramount importance in every matter concerning the child (s 28(2)).

Spanking is violence (paras 36 – 44)

In finding that spanking (and even the threat thereof) amount to “violence” from a “private source” (s 12 (1)(c)), the Court relied on a single dictionary definition of “violence” as meaning “behaviour involving physical force intended to hurt, damage or kill someone or something” (and said that assault has the same meaning). In the Court’s opinion, “violence is not so much about the manner and extent of the application of the force as it is about the mere exertion of some force or the threat thereof” – and for which, the Court found, there is no place in our “painful and shameful history of widespread and institutionalised violence”. (This, despite the Court’s acknowledgment a few paragraphs later, that “parental chastisement is significantly different from the institutionalised administration of corporal punishment [in prisons and schools] that has since been abolished”).

While the Court acknowledged that “there are indeed sound and wisdom-laden, faith-based and cultural considerations behind the application of the rod”, it nevertheless found that any “parental chastisement of a child, however moderate or reasonable does … meet the threshold requirement of violence” and is therefore prohibited by s 12(1)(c) of the Constitution.

Spanking violates human dignity (paras 45 – 48):

Having found that all spanking – no matter how light or well-intentioned – amounts to violence, the Court had no issue finding that it also violates the human dignity of children. Again, it is striking that the Court recognises “the reality that being held accountable for actually wrongdoing generally has the same effect”, but specifically finds that spanking should be unconstitutional also for violating human dignity (s 10 of the Constitution).

Justification analysis (paras 49 – 71):

The Court next considered whether there is any justification (in terms of s 36 of the Constitution) for keeping the defence of reasonable and moderate chastisement intact, and thereby limit the constitutional guarantee of “no violence” (s 12(1)(c)) and human dignity (s 10). In this regard, it found as follows:

  • The nature, purpose and importance of the limitation. In this regard, the Court acknowledged that “the primary responsibility to mould or discipline a child into a future responsible citizen is that of parents. For example, Christian parents have a ‘general right and capacity to bring up their children according to Christian beliefs’” as previously stated by the Constitutional Court in Christian Education South Africa v Minister of Education (2000) – i.e. the case which abolished spanking in schools. However, the same case made it very clear that the considerations that apply to spanking in schools are “quite different” to those that apply in the context of the home, and warned that the State should avoid placing persons before the “absolute and strenuous choice between obeying a law of the land or following their conscience”. This warning (by Judge Albie Sachs, a self-professed atheist) is referred to by the Court in this case, which as a result of its judgment “forces” parents to make exactly that choice!
  • The nature of the affected interests and rights. In this regard, the Court referred to the “best interest of the child” principle (s 28(2) of the Constitution), and the State’s duty to respect and protect children’s rights. It found that s 28(2) “is crafted in terms so broad as to leave no doubt about the choice it makes between the best interests of the child and the parent’s perceived entitlement to resort to unreasonable and immoderate chastisement meant to procure a child’s obedience to a parent’s legitimate directive and orders.” In this regard, FOR SA points out however that the issue before the Court, was never whether unreasonable and immoderate chastisement (which has always been illegal) violates the “best interests of the child” principle. It clearly does.
  • The extent of the limitation and its relation to purpose. Although the Court acknowledged that reasonable and moderate chastisement was an “incidence of the enjoyment of one’s constitutional right to freedom of religion or culture”, the Court stated that “the disadvantage” was that “the right to freedom of religion does not expressly provide for parental entitlement” to do so. This statement ignores, however, that our Constitutional Court has on numerous occasions already stated that the right to religious freedom expressly provided for in the Constitution, includes and implies the right to live out one’s religious convictions.

While the Court correctly found that our Constitution does not expressly recognise “the right to parenting” or the right to discipline, it is nevertheless disappointing that the Court failed to consider, or properly deal with, international treaties that it is constitutionally bound to consider when interpreting any right in the Bill of Rights (s 39(1)(b)), which treaties are binding on South Africa and that recognise the primary role of parents in the upbringing and education of their children. None of these treaties expressly prohibit parental spanking.

  • Less restrictive means to achieve purpose. Finally, the Court found that “positive parenting” is “a less restrictive means of discipline that could potentially be effective in the attainment of the same purpose that moderate and reasonable chastisement is intended for”.

For all these reasons, the Court found that there was no reasonable and justifiable reason to retain the common law defence of reasonable and moderate chastisement, which was therefore declared to be unconstitutional with prospective effect. Practically, this means that from 18 September 2019 going forward, all spanking – no matter how light or well-intentioned – will amount to “violence” or criminal assault with criminal consequences for the parent/s involved. As a further result, Parliament is now expected to amend the Children’s Act of 2005 so as to bring it in line with the judgment.

Court’s reliance on research for and against spanking:

It is also important to understand that, ultimately, the Court’s decision on whether or not (the legal defence of) reasonable and moderate chastisement should be retained or abolished was a legal question (i.e. whether spanking violates any fundamental human rights) rather than a scientific one (i.e. whether or not the research shows that spanking is good or bad). As such, it would probably not make any difference, even if more evidence were to come to light that could support the case for spanking.

Of course, the social science has some bearing on the legal question that the Court ultimately has to decide, but it is not the (sole or primary) determining factor. Because of the way in which the matter came before the Court (i.e. on application rather than through action proceedings), no oral evidence was led in Court. However, the parties on both sides did submit, as part of the papers and arguments before the Court, the best research on both sides of the spectrum.

While the judgment contains some observations regarding the social science research, it is unfortunate that these observations are of a general rather than a specific nature (referring to specific authors or work).  In particular, the judgment fails to explain why – from a legal or evidentiary point of view – the research against spanking and in favour of “positive parenting”, was preferable over the research that supports reasonable and moderate chastisement.

So, for example, the Court on the one hand acknowledged that it is “debatable” whether spanking “invariably produces negative consequences” (para 53), and accepted that “properly managed reasonable and moderate chastisement could arguably yield positive results and accommodate the love-inspired consequence management contended for by FOR SA. And that would explain why so many other civilisations and comparable democracies have kept this defence alive and relatively few have abolished it” (para 54).

However, later in its judgment (para 64), and without any substantiation therefore (particularly in light of the voluminous evidence put up by FOR SA in support of the benefits of reasonable and moderate chastisement, including comprehensive and most recent research by Prof Robert Larzelere), the Court stated that there was a “paucity of clear or satisfactory empirical evidence that supports chastisement as a beneficial means of instilling discipline. Though not conclusive, there are, however some pointers to the potentially harmful effect of chastisement.” The Court acknowledges that “some of that research” (referring to research citing the harmful effects of chastisement) “is open to criticism in that very little effort seems to have been made to distinguish between moderate and excessive or abusive application of force to the body of a child”, yet in the very next sentence – and again, without reference to any particular authority – finds that “that said, positive parenting reduces the need to enforce discipline by resorting to potentially violent methods.”

While it may be so that, on the day in Court, not much time was devoted to questions or argument regarding the benefits and disadvantages (according to social science) of spanking, it is simply not correct – in light of the voluminous research that was submitted to the court as part of the written submissions – to say that “not much was said to help us appreciate that the benefits of that chastisement indeed outweigh its disadvantages.” (para 65).

Ultimately, and again without any proper substantiation for finding as it did, the Court found that “positive parenting” is a disciplinary mechanism or measure that is “more consistent with love [and] care” (para 66) and therefore an “effective non-violent option” that “benefits [the child] most with no or minimum harm” (para 67). 

Could the Court have found differently?

A question that has been asked, is whether – given that the Constitution is the supreme law of the land – the Court (or indeed any of the judges) could have found differently? The answer to this is, “yes, absolutely yes!”.

Firstly, FOR SA’s first and main argument in the case, was that this was not a matter for the Court – but for Parliament as the major engine for law reform – to decide, particularly in circumstances where a draft Bill was already making its way to Parliament. It is thus disappointing that the judgment nowhere refers to, let alone deals with, this argument. Referring it to Parliament as the elected representatives of the people of South Africa would nevertheless have been an option to the Court.

Secondly, it is open to any judge to write a dissenting judgment (if he/she does not agree with the rest of the judges), or a separate but concurring judgment (if he/she comes to the same conclusion as the other judges but for different reasons). It would, therefore, have been entirely possible for any one or more of the judges to, if he/she holds to a different interpretation of the Constitution, disagree with the others and write a dissenting judgment as often happens in constitutional matters.

Thirdly, nowhere does the Constitution say that spanking is unconstitutional – this is an interpretation by the judges of what they believe a certain provision of the Constitution (namely s 12(1)(c) that prohibits “all forms of violence”) to imply. In interpreting “violence” for example, the Court relied on a single dictionary definition of “violence” as being “behaviour involving physical force intended to hurt, damage or kill someone or something” (para 38). When regard is had to other dictionaries however, “violence” could well have been interpreted very differently or more narrowly.

Fourthly, because ultimately what the Court is asked to do (particularly in the context of s 36 of the Constitution), is to balance or weigh up certain rights against each other, much depends – once again – on the interpretation and importance that the judges give to the competing rights in each particular context. So, for example, it could have been open to the Court to balance the competing rights in such a way that recognise the binding international law rights of parents to raise their children in accordance with their religious or moral convictions. In this regard, it is important to remember that the same Constitution which, as many are quick to point out, is “the supreme law of the land”, protects the right to religious freedom as a fundamental human right (s 15). This right, our Constitutional Court has time and time again said, includes the right not only to believe in our hearts, but to say and to live out our beliefs -freely and without fear of punishment or persecution by the State. As such, the Constitution and the Bible (including the Scriptures on disciplining of children) are not at odds with one another as one might presume – rather, the former guarantees the latter!

Again, it is important to remember that abuse of, and violence against, children have always been illegal. All that the Court was asked to protect (keep intact), was the legal defence of reasonable and moderate chastisement that historically has assisted parents when faced with a charge of assault of their own children – provided, of course, that the discipline was reasonable and moderate! If the Court felt that the boundaries of what is “reasonable” and “moderate” were unclear, another option open to the Court would have been to refer the matter to Parliament to define same more clearly in legislation (e.g. no bruises, no red marks, no implements, etc). This “calibrated approach” is the approach that still applies in parts of the United Kingdom.

Finally, and as already indicated above, the Constitutional Court itself acknowledges that “many other civilisations and comparable democracies have kept this defence [of reasonable and moderate chastisement] alive and relatively few have abolished it” (para 54). The reality is that physical chastisement remains legal in most countries in the world, including well-developed democracies such as Australia, Canada, the UK and the USA.

With regard to Canada specifically, whose human rights framework is not much different from ours and whose Canadian Charter jurisprudence continues to have great influence on South African constitutional law, the Supreme Court specifically found that complete abolition of physical chastisement was an unwarranted intrusion into family life that would “expose the family to the incursion of state law enforcement for every trivial slap or spanking”, with the concomitant harm to the child resulting from his/her parents being charged and pulled into the criminal justice system (Canadian Foundation for Children, Youth and the Law v Canada (Attorney-General) (2004)).

In all these circumstances, it was very much open to the South African Constitutional Court (or indeed any of its judges) to interpret the Constitution differently to the way in which it had, and to make a judgment that would have protected the constitutional right of parents – as those who have the primary responsibility for the upbringing and education of their children – to raise (including to discipline) their children in accordance with their religious or moral convictions. Where such discipline exceeds the bounds of reasonableness and moderation, the State has always – in terms of existing laws – had every right to step in to protect the children from “violence” or abuse and would, in fact, be remiss in its duty to do so, if it does not.

Unfortunately, because of the Court’s narrow interpretation of “violence” in s 12(1)(c) of the Constitution (relying on a single unique dictionary definition, that differs from other dictionary definitions), well-meaning parents who love their children and only want what is best for them, are now potential criminals who will be prosecuted “for even the minutest of well-intentioned infractions” (paragraph 52).

Time will tell if this judgment will be effective in addressing actual child abuse in South Africa. Criminal statistics in other countries (including Sweden and New Zealand) where reasonable and moderate chastisement has been banned, show that it does not. Instead, it opens the floodgates to criminal investigation against and prosecution of parents for minor acts of physical discipline, with the possibility that many parents will have their children removed from their care.

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