Spanking your child – Constitutional Court ruling

The Constitutional Court declared that parents may not spank their children.

The Court declares the common law defence of “reasonable and moderate chastisement” – which allowed parents to spank their children with the justification that is was discipline – invalid and unconstitutional.

The unanimous Judgment, handed down by Justice Mogoeng Mogeng, effectively means spanking a child is now illegal as it equates to  assault and parents can be criminally prosecuted for it.

Over the years parents could rely on the common law defence of reasonable chastisement when spanking a minor child. This defence allowed that disciplinary chastisement may be done with the condition that it is moderate and reasonable. The courts relied on factors such as the nature of the child’s transgression, the motive of the parent, the force and object used to mete out punishment, as well as the age, gender and size of the child when determining the reasonableness of chastising a minor child.

This common law defence and parent’s entitlement to administer chastisement without attracting adverse legal consequences was declared unconstitutional by our High Court. The matter originated from a case in the Johannesburg Magistrates’ Court where a father of a 13-year-old boy was prosecuted and convicted for assault with intent to do grievous bodily harm after he had kicked and punched his child for watching pornographic material. The father appealed to the Gauteng High Court and it was in this appeal that the Court, on its own accord, considered the constitutionality of the common law defence and found that it is invalid on the basis that it infringes on several constitutional rights. It was also this case that attracted considerable media attention as you referred to.

The view of the High Court was confirmed by our Constitutional Court when an amicus curiae or friend of the court, namely the Freedom of Religion South Africa challenged the High Court’s declaration of the constitutional invalidity of a parent’s right to administer reasonable and moderate chastisement on a child. In considering the matter the Constitutional Court reached its conclusion primarily using section 12(1)(c) of the Constitution of the Republic of South Africa 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”. In doing so, the Constitutional Court finally ruled on the matter and determined that any form of violence, including reasonable and moderate chastisement constituted assault and that this common law defence was inconsistent with various sections of the Constitution and could not be used, confirming finally that spanking is now illegal.

BY: Randles Attorneys