By Gabriella Pacitti

The constitutional court has upheld a judgement handed down in the South Gauteng High Court that found that the use of corporal punishment in the home to be unconstitutional, specifically that the common law defence of “reasonable and moderate chastisement” was held to be unconstitutional.

The matter pertained to an instance where a father, had beaten his minor son aged 13 because he found pornography on his iPad. His defence was that he was entitled to do so because he was disciplining his son in accordance with his religious beliefs. The discipline meted out by the father took the form of a severe beating, which included “vicious kicking and punching”. The father was convicted for common assault.

Freedom of Religion SA took the judgment on appeal and argued in the Constitutional Court that reasonable and moderate chastisement was not abuse.

The organisation argued that parents have the right to raise their children in accordance with their own religious views with limited interference from the state. It was further argued that while the Constitution does not make provision for parental rights per se, that these rights are established in international law.

In a unanimous judgement the common law defence, raised by Freedom of Religion SA, of reasonable and moderate parental chastisement of children was held to be unconstitutional and inconsistent with the provisions of sections 10 and 12(1)(c) of the Constitution. The Constitutional Court held that there are alternatives methods to discipline children, which do not infringe on a child’s constitutional right to dignity, finding all forms of violence towards children to be unconstitutional.

The judgement considers the high rate of child abuse and violence towards children in South Africa. The Constitutional Court further warns that it reasonably foresees that the judgement may lead to widespread assault charges being laid by children against their parents, and comments that parliament should engage in consultations, research and public debate before implementing a regulatory framework to address this issue. It should also encourage parents and children to meaningfully engage in this process.