Children need to be protected by s 12(1)(c) of the Constitution

November 1st, 2019

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Freedom of Religion South Africa v Minister of Justice and Constitutional Development and Others (CC) (unreported case no CCT320/17, 18-9-2019) (Mogoeng CJ) (unanimous)

The Constitutional Court (CC) was tasked with deciding whether the chastisement of children was unconstitutional, in the matter of Freedom of Religion South Africa v Minister of Justice and Constitutional Development and Others (CC) (unreported case no CCT320/17, 18-9-2019) (Mogoeng CJ) (unanimous). The applicant, Freedom of Religion South Africa, applied for leave to challenge the declaration of constitutional invalidity of a parent’s right to administer reasonable and moderate chastisement to their child.

The matter began as a trial of assault with intent to do grievous bodily harm in the Johannesburg Magistrate’s Court, where a father abused his 13-year-old son for watching pornographic material. The violence meted out to the son took the form of vicious kicking and punching. The father could not, therefore, have justifiably raised the defence of reasonable and moderate chastisement or relied on any religious or cultural ground to justify the unmistakably immoderate and unreasonable application of force. He was previously convicted of common assault on his wife.

Aggrieved by the outcome, the father lodged an appeal to the Gauteng Local Division of the High Court in Johannesburg. Although the state did not challenge the constitutional validity of the common law right of parents to chastise their children moderately and reasonably, the court of its own accord decided on the issue. It declared the defence to be constitutionally invalid and, therefore, prospectively unavailable to parents charged with the offence of assault (common or with the intent to do grievous bodily harm) on their children.

The CC said the history and nature of parents’ legal authority to inflict reasonable and moderate corporal punishment on their children deserved attention. Chief Justice Mogoeng borrowed a quote from Burchell and Milton Principles of Criminal Law (Juta & Co Ltd, Cape Town 1991), whom he said did a brilliant job in capturing the essence of this subject. ‘The use of physical force upon a child as a means of corrective educational discipline is a long-established part of civilisation. In line with the social importance attributed to the family unit in all societies, the law has traditionally conceded to parents a uniquely independent authority in raising their children. For this reason, the state did not interfere in the exercise of the rights, duties and responsibilities of parents in the upbringing of their children’ (Burchell and Milton (op cit) at p 159 to 161).

The CC said Burchell and Milton correctly observed that ‘disciplinary chastisement has been considered excusable provided it serves a corrective and admonitory purpose’ (Burchell and Milton (op cit) at p 163). The legal entitlement of parents to discipline their own children exists only within the confines of moderation and reasonableness. Ill-treatment or abuse of children exceeds those bounds and is, in law, punishable by reason of its unlawfulness. The CC added that 11 years before South Africa (SA) became a constitutional democracy, it already saw the need to pass legislation that limited parental authority and provided that parental ill-treatment of a child constituted a punishable offence. The CC stated that much progress has been made in that the Children’s Act 38 of 2005 provides for a wide range of protective measures for children.

Returning to the declaration of constitutional invalidity, the CC said none of those who were parties before the High Court wanted or were able to challenge that decision. However, Freedom of Religion South Africa, which was amicus curiae (friend of the court) in the court of first instance, sought to assume that responsibility. The CC added that there was uncertainty about the standing. The court held that the difficulty was whether a friend of the court had standing to bring an application for leave to appeal in circumstances where parties in the lower court were not willing or able to do so.

The CC said the only way for the court to challenge that declaration was to grant the applicant standing. The CC pointed out that almost all parents and children in SA would be affected by its decision on the matter. The CC added that a parents’ constitutional right to freedom of religion was implicated as it was a matter that involved the best interests of children, who are a vulnerable group. This, coupled with a child’s right to be protected from all forms of violence, supports Freedom of Religion’s contention that it had standing and was allowed to intervene as a party.

A jump or translation from being a friend of the court in a lower court to becoming a party at an appeal stage was, at times, permissible on considerations of justice. It was in this case that Freedom of Religion found itself in that exact situation. Not only did the applicant seek to become a party in the public interest, but the issues raised also bore the need for intervention as a party on behalf of the general body of parents and children in SA. The CC held at para 18 that what made a noteworthy difference was that Freedom of Religion was not seeking to be involved in the matter for the first time. It took part in the proceedings in the High Court, albeit in a different capacity.

The CC questioned whether it was in the interest of justice to grant leave to appeal or whether the application raised an arguable point of law of general public importance, which the court had to consider. The CC added that at the heart of the application were issues that related to what was in the best interests of children. The issues or points of law raised were of great interest and importance to almost all parents and children, most of whom were not able to champion the cause of ventilating these rights themselves.

The CC said the application was for direct appeal in terms of s 167(6)(b) of the Constitution and it was necessary to explain why the CC did not insist that the Supreme Court of Appeal (SCA) being approached before the CC was approached. Ordinarily, litigants must not be allowed to bypass the SCA in matters involving the application or interpretation of the common law. The CC held that this was a matter concerning the validity of a common law defence, and it was inescapable that an explanation for the deviation be furnished.

The CC said the administration of reasonable and moderate punishment by parents on their children was declared unconstitutional by the High Court. The CC added that the declaration not relating to legislation, was too close and similar in character to declarations of unconstitutionality relating to legislation, to render the bypassing of the SCA excusable. The CC pointed out that although not all declarations of unconstitutionality of all common law principles would justify a departure from normal practice, the nature or importance of the constitutional issues raised, the seriousness and far-reaching implications of the unconstitutionality in the matter justify a departure from normal appeal route, via the SCA.

The CC said that certainty and finality was needed urgently and the delay that would have been caused by that appeal process trajectory would not have been in the public interest or in the interests of justice. This is so because parents discipline their children daily and the sooner parents knew what was legally permissible, the better. It was for these reasons that the constitutionality of moderate and reasonable chastisement would primarily be resolved on the provision of s 12(1)(c) of the Constitution. The applicant was seeking to distinguish reasonable and moderate parental chastisement from the kind of assault and abuse of children that every campaign or challenge to end this common law defence was intended to curb.

But the difficulty the applicants had was to attempt to locate chastisement outside the boundaries of assault. The CC said that the applicant had made an interesting point that not every parent – who out of religious or cultural considerations chastises their children as a way of instilling or enforcing discipline or consequence management – intended to harm or does harm and abuse their children. Freedom of Religion displayed an implicit appreciation of the reality that just as a verbal reprimand could have an even more traumatising or brutalising effect and enduring negative impact on the well-being of a child, so can chastisement that is unreasonable and immoderate, often triggered by anger or an unbridled attitude or disposition of a tough disciplinarian.

The CC said the approach of the applicant was not purely biblical. However, there was an allusion to the appropriateness of scriptural injunctions on the use of a rod and to parents’ entitlement to administer reasonable and moderate chastisement on their children as an integral part of the exercise of the right to freedom of religion. But, the applicant, was fundamentally seeking to protect the pre-existing common law defence of chastisement available to all parents irrespective of their religious persuasions, cultural practice or non-belief in a deity.

The CC said the reason bears repetition that one of Freedom of Religion’s major concerns that was apparent conflation of reasonable and moderate chastisement with blatant child abuse and brutal assault by holding them out as being inherently or fundamentally the same. The CC pointed out that the application of force to the body of another may, subject to the de minimis non curat lex (the law does not concern itself with trifles) principle, take the form of the slightest touch or bumping against a person.

The CC said that there are several constitutional rights that could be relied on to determine the validity of reasonable and moderate chastisement. The issue could be adequately resolved on the basis of, among others, s 12(1)(c) of the Constitution, which provides: ‘Everyone has the right to freedom and security of the person, which includes the right –

(c) to be free from all forms of violence from either public or private sources.’

The CC said a proper determination of the constitutionality of chastisement requires that it be located within a criminal law setting, which is its natural habitat. The CC turned to the language of s 12, which the operative words are ‘free from all forms of violence’. The first question was whether people ascribe a highly technical meaning to the word ‘violence’ or give it its ordinary grammatical meaning, which connotes any application of force, however, minimal.

The court said chastisement by its nature entails the use of force or a measure of violence. The CC said the objective of chastisement is always to cause displeasure, discomfort, fear or hurt. The actionable difference all along lies in the extent to which that outcome is intended to be or is actually achieved.

The CC said since punishment by the application of force to the body of a child by a parent is always intended to hurt to some degree, moderate and reasonable chastisement indubitably amounts to legally excusable assault. The court pointed out that there cannot be assault, as defined, without meeting the requirements of ‘all forms of violence’ envisaged in s 12(1)(c) of the Constitution. The CC said the mischief sought to be addressed through s 12(1)(c) is not only certain or some form of violence, but ‘all forms’.

The CC said it was necessary to emphasise that in terms of the South African law, the application of force, including a touch depending on its location and deductible meaning, or a threat, therefore, constitutes assault, and parental authority or entitlement to chastise children moderately and reasonably has an escape route from prosecution or conviction. That means the violence proscribed by s 12(1)(c) could still be committed with justification if that parental right is retained. The court said if it is accepted that what would ordinarily be criminally punishable, but for the common law defence of moderate and reasonable chastisement, is indeed what s 12(1)(c) seeks to prevent, then children would be protected by that section like everyone else.

The CC said it was adequate to say that any form of violence, including reasonable and moderate chastisement, has always constituted a criminal act known as assault. The effect of relying on this common law defence was to exempt parents from prosecution or conviction. Identical conduct by a person other than a parent on the same child would otherwise constitute indefensible assault. The CC said the High Court was correct in its conclusion that the common law defence of reasonable and moderate chastisement is constitutionally invalid, and that this declaration be prospective in its operation.

The CC made the following order:

  • That the application for direct access was granted.
  • That the Freedom of Religion South Africa was granted leave to intervene.
  • The application for leave to appeal was dismissed.
  • It was declared that the common law defence of reasonable and moderate parental chastisement is inconsistent with the provisions of ss 10 and 12(1)(c) of the Constitution.
  • There was no order as to costs.

Kgomotso Ramotsho Cert Journ (Boston) Cert Photography (Vega) is the news reporter at De Rebus.

This article was first published in De Rebus in 2019 (Nov) DR 28.