YG v S (A263/2016)  ZAGPJHC 290; 2018 (1) SACR 64 (GJ) (19 October 2017)
The South African High Court has ruled the common law defence of reasonable or moderate chastisement is no longer applicable at common law in South Africa. The landmark judgement found no justification for permitting the use of corporal punishment against a child which would otherwise constitute assault but for the invocation of the defence. The decision relied on the notion that while the law has traditionally conceded parents a uniquely independent authority in raising their children, the defence remains at odds with the right of the children to dignity, bodily and psychological integrity and equal protection as enshrined in the constitution.
The appellant, YG, and the victim, M, are of strict Muslim faith.
The child, M, was sitting on YG's bed using the family iPad. The appellant entered the room and accused M of watching pornographic material as strictly against the Muslin faith. M denied he was watching pornographic material and the appellant persisted with the accusation.
When M refusal to admit to the accusation, the appellant struck M in the chest multiple times. M lost his balance and fell off the bed, striking his head against the door of the bedroom.
While on the floor, the appellant kicked M in the chest four times.
M was examined by a medical doctor four days after the incident. The doctor found a tender, slight swelling on the left side of the chest. There were two bruises on the upper lateral part of the right leg, and several bruises on the upper lateral part of the left leg. The doctor determined the injuries were consistent with assault.
The appellant was tried for assault with intent to do grievous bodily harm. As his defence, he argued that he did not intend to assault M. Rather, he 'intended to discipline him out of concern to show him what is right and wrong'. The appellant testified he had done nothing more than exercise his right as a parent to chastise M by administering reasonable corporal punishment for the indiscipline noted.
The constitutional compatibility of the defence of reasonable chastisement
The main issue presented in this case was the applicability of the defence of reasonable chastisement to the charge of common-law assault with intent to inflict grievous bodily harm. The appellant argued that a parent has the right to demand reverence and obedience from their children and, in cases of improper behaviour, inflict chastisement as may be deemed appropriate. In determining the constitutional validity of the defence, and in recognition of the problematic and arbitrary nature of what may constitute 'reasonable', the Court recognised three central rights in the Constitution raised by the inquiry:
- children have the right to human dignity (section 10);
- the right to equal protection (section 9(3)); and
- the principle that a child's best interests are of paramount importance in every matter concerning the child (section 28(2)).
As such, the Court was required to consider whether removal of the defence would be in the best interests of the child.
The majority acknowledged that, while parents have a prerogative power to discipline their child, the defence should not be invoked to negate an unjustifiable breach of the rights of the child. The Constitution is explicit in its exposition of such rights, conferring equal protection from 'all forms of violence' whether from a 'public or private source'. Furthermore, even where the level of chastisement inflicted is adjudged to fall within the ambit of 'reasonable', such an act invariably involves a measure of violence and thus breaches the physical integrity of the child. The Court acknowledged the right to the protection of such integrity is foundational to the constitutional dispensation and one of the factors expressly required to be taken into account in the process of determining whether the limitation of a right is justified.
The Court further noted the existing discrepancy between the treatment of adults and children under the law. Where a child is subjected to conduct that would otherwise constitute an assault, but for the defence of reasonable chastisement, there is a breach of that child's dignity. The effect of the defence is to fundamentally undermine such dignity and autonomy. Moreover, the majority acknowledged that this is not a rational differentiation that would fall within the bounds of different treatment that is permissible under section 9 of the Constitution. They further held that it is antithetical to the constitutional protection prioritising the rights of the child.
In these circumstances, the level of harm inflicted upon M could not be seen to fall within the spectrum of 'reasonable'. Implicit in the submissions of the State was the notion that the defence only permits, at worst, a minimal level of physical harm. Further to this argument is the fact such harm must be balanced with the disciplinary benefits sought to be achieved. As the harm inflicted upon the victim was deemed consistent with assault with intent to cause grievous bodily harm, the defence was determined incompatible with rights conferred under the Constitution.
On the basis of such reasoning, the Court determined the defence to be no longer applicable due to its fundamental incompatibility with the rights conferred to every individual citizen under the Constitution. The defence assumes that in meting out reasonable chastisement the parent is acting in the best interests of the child. However, this assumption is made without any regard to the child's own, self-standing right to dignity or the child's right to assume the State can protect it.
Relevance of the right to freedom of belief and religion
The Court acknowledged that, as widely accepted in the jurisprudence, children's rights are not to be subordinated to the religious views of their parents. The Court noted the removal of the common law defence will not prevent parents of a particular faith from disciplining their children but rather, implore them to change the level and mode of discipline applied. In response to the appellant's claim that the removal of such a defence would open up religious parents to a greater threat of criminalisation, the majority were satisfied that it is permissible to require religious parents who believe in corporal punishment to be expected to obey secular laws, rather than permitting them to place their religious beliefs above the best interests of their children.
The South African High Court’s decision importantly prioritises and protects the best interests of the child and ensures compliance with relevant international law.
South Africa has joined a growing number of countries to recognise that corporal punishment of children must be outlawed domestically to comply with international law. As the Court stated:
It is time for our country to march in step with its international obligations under the Convention on the Rights of the Child by recognising that the reasonable chastisement defence is no longer legally acceptable under our constitutional dispensation.
In Australia, parents or a person acting in place of the parent can still rely on reasonable chastisement as a defence to a charge of assaulting their child. The Committee on the Rights of the Child has repeatedly highlighted that this continued lawfulness of corporal punishment is in breach of Australia’s obligations under the Convention for the Rights of the Child. Similarly, the Committee Against Torture has recommended that Australia ban corporal punishment of children in all settings.
The South African decision provides yet another reminder to Australian governments that this practice – which has been shown to have negative impacts on the child and undermine trust between a parent and child – is clearly inconsistent with our international obligations.
The decision is available here.
Morgan Sheargold is a lawyer at Ashurst.