Common law defence of reasonable chastisement discussed at Clarks Family Law Conference

January 22nd, 2020

The Chairperson of Clarks Attorneys, Beverley Clark, gave opening remarks at the Clarks Attorneys’ sixth Annual Family Law Conference in October 2019 in Johannesburg.

By Kgomotso Ramotsho

Clarks Attorneys held its sixth Annual Family Law Conference during October 2019 in Johannesburg. The conference featured a variety of speakers who presented on different topics. The topics included ‘unreasonable chastisement,’ which was presented by keynote speaker, Gauteng Local Division of the High Court Judge, Raylene Keightley. Judge Keightley looked at why the common law defence of reasonable chastisement is inconsistent with the provisions of ss 10 and 12(1)(c) of the Constitution.

Judge Keightley said when it comes to certain social issues the law will never be on the same page as public opinion. She gave examples of issues, such as the death penalty, abortion, gay marriage and the entitlement of parents to physically discipline their children. She pointed out that in respect to such issues, the Constitution is the instrument that allows the court to lay down the law even though, it very often, sparks public debate. Judge Keightley spoke about what was commonly called the ‘issue’. She pointed out that the ‘issue’ makes something, which is constitutional and legally complex sound superficial, it detracts from the real underlying issues that both the High Court and the Constitutional Court (CC) face.

Judge Keightley added that the truth of the matter is that the courts are not trying to outlaw a parent from giving their child a light slap on their bum. She said it is still going to happen but what the courts are concerned about, is whether it is constitutionally acceptable for a parent to use physical force to discipline children. She added that the issue is a complex legal, social and constitutional issue.

Judge Keightley said when the matter of YG v S 2018 (1) SACR 64 (GJ) was referred to the High Court, she had to re-look at what the defence of reasonable chastisement was, because the court did not very often deal with such matters. She pointed out that when one looks at the word ‘defence’, it must be read with the definition of ‘assault.’ She said that it is defined as an unlawful intention application of force to the person of another. She added that the degree of force is not required. Judge Keightley noted that in principle crime of assault is very low, the de minimis rule applies.

Judge Keightley pointed out that parents may raise that defence when they are faced with a charge of assault. She said that in circumstances where parents use the application of physical force to discipline their child – provided it falls under reasonable chastisement – it will amount to a deference in a charge of assault, the parent will be acquitted and will not have a criminal record. She added that the law does not describe what reasonable or moderate chastisement is. Judge Keightley said if one looks at old case law, one of the issues the high court raised is arbitrary and depends on what the parent thinks is reasonable.

Judge Keightley said the manner in which the defence has been brought into the case law over the years, is by recognising the entitlement of the parent to use reasonable and moderate force to procure obedience of a child to the parent’s direction. In other words, parents have the right to use corporal punishment on their children provided it is moderate. She added that in terms of the criminal law, it was up to the state to satisfy the court that a parent has exceeded the bounds of reasonable and moderate chastisement.

Judge Keightley said the defence in terms of the common law was simple, provided the person who applies physical force is the parent of that child, but it would be an unlawful conduct if the assault was carried out by anyone else. She pointed out that the question that was posed is whether it was constitutional in democratic South Africa. She noted that there were constitutional precursors to this issue. One example she gave was in the case of S v Williams and Others 1995 (3) SA 632 (CC); 1995 (7) BCLR 861 (CC), which dealt with ‘whipping’ as a criminal punishment. She said the criminal sanction of whipping was outlawed in the Criminal Procedure Act 51 of 1977 by the CC in 1995. She pointed out in the matter the court made it clear that it was not dealing with corporal punishment in homes.

Judge Keightley said the difficulty of constitutionality in the parental setting, is that it goes to the heart of the private relationship between a parent and a child. That relationship is conducted in certainty of a private basis, which is a family home. It then throws the spotlight on the child, to embody integrity, while on the other hand that parents still discipline their children. She added that as a general principle, parents bear the primary principle to protect children. They also bear the primary responsibility to guide children to become well-adjusted adults in the long run.

Judge Keightley pointed out that at the heart of Freedom of Religion South Africa’s (FORSA’s) submission was that there is a critical distinction between child abuse and violence against children on the one hand and moderate chastisement on the other hand. She said FORSA argued that common law does not permit levels of violence against children. She noted that an interesting approach was adopted so one can draw this distinction and is it then okay for common law to allow moderate chastisement because it does not amount to abuse. FORSA developed their argument further, by arguing that minimal levels of physical punishment that were permissible under the common law defence were justifiable because the infringement was balanced out by the positive disciplinary benefits that moderate chastisement on children is an accepted disciplinary method.

Judge Keightley said the CC did not buy into that theory. FORSA said that moderate chastisement has a benefit on children and, therefore, they added it would not be in the best interest of the child to outlaw the defence. She pointed out that FORSA went on further to raise the issue of religious freedom and said that there are many parents who, from the religious point of view, believe that they can physically and moderately chastise their children provided it is done in love. They added this infringed the right to freedom of religion and that religious parents who have this belief would have to choose between their religion and the law.

Judge Keightley said what was critical at the end of the day was how the decision was reached, particularly where s 12(1)(c) of the Constitution states is the right ‘to be free from all forms of violence from either public or private sources.’ She added that it was particular from that formulation that s 12(1)(c) was enough to get through the private family law hurdle and to permit the court to conduct a full constitutional examination. She noted that it was the use of the words ‘private violence,’ which gave a platform for the courts for constitutional examinations to be done.

Judge Keightley pointed out that the CC looked at the language of s 12(1)(c) and said that words ‘free from all forms of violence’ questioned was whether they ascribe a highly technical meaning to the word ‘violence’ or whether to give it its grammatical meaning. She added that the CC said chastisement does, by its very nature, entail the use of force or a measure of violence. To appreciate the connection between reasonable and moderate chastisement and violence, it must be asked why it is necessary to resort to chastisement in the first place. Is it not the actual pain or hurt that flows from it, that is believed to more likely have a greater effect than any other reasonable method of discipline?

Judge Keightley said that the CC also found that when it came to the right to dignity, there was a clear infringement. She added that what was interesting was that the CC said that other forms of chastisement might also affect dignity.

Children’s rights: Fact of fiction

University of Stellenbosch Professor, Sonia Human, spoke about ‘Children’s Right: Fact or fiction’. She said that she views the role of the court as extremely important, because it is in the judgments of the court that one sees to what extent international documents, such as the Convention on the Rights of the Child (CRC), has been internalised and to what extent it has given life in particular jurisdictions. She added that there are some obstacles and the first obstacle is that there is still no agreement on the meaning of children’s rights. There was a current battle regarding the world theory, or the interest theory and she added that the debate is continuing, there was not an answer on the particular question.

Prof Human said another obstacle, especially when one looks at the CRC is that a number of these rights, if not the majority of the children’s rights are open-ended and in particular art 3.1, which deals with the best interests of the child. There are procedural impediments, and it depends on how an issue is presented in court, how it is contextualised, and if the matter actually deals with children’s rights. She pointed out that she still gets excited about the CRC as it explains the rights that children have. She added that it took ten years to draft a Convention, that has been ratified by all the member states of the United Nations except for the United States.

Prof Human said the CRC requires and demands that those who are in the field of children’s rights – whether in theory or in practice – think differently about children, as an individual and bearer of human rights, even if the baby has just been born. She noted that the general comment no 14 (2013) on the right of the child to have his or her interests taken as a primary consideration CRC/C/GC/14 that only deals with art 3(1) of the CRC, took close to 20 years to be issued. When one of the members involved in the whole process was asked why it took so long, they said that it was difficult, Prof Human added that it is difficult especially for those in practice to implement such. However, she said the question that needs to be asked, is what extent does the general comment really contribute? And what does it further contribute in enhancing the reality that children are bearers of rights.

Counselling Psychologist and accredited Mediator and Parenting Coordinator, Doctor Astrid Martalas, discussed examining the role of the parenting coordinator in bringing about therapeutic outcomes for parties to their post-divorce disputes at the Clarks Attorneys’ sixth Annual Family Law Conference.

Therapeutic jurisprudence: An interdisciplinary approach

Psychologist and accredited Mediator and Parenting Coordinator, Doctor Astrid Martalas, discussed examining the role of the parenting coordinator in bringing about therapeutic outcomes for parties in post-divorce disputes. She began her talk by defining therapeutic outcomes and said it refers to the responses after a treatment of any kind. She referred to the treatment of family interaction with the parenting coordinator and for it to be therapeutic the results have to be judged to be useful or favourable with the result being expected, unexpected or even an unintended consequence.

Dr Martalas added that with parenting coordination it is an expected outcome. She said one of the roles of the parent coordinator plays is to make things better, they are not only there to resolve disputes. She pointed out that the ‘anti-therapeutic effect’ refers to a harmful or undesired outcome. She explained why there is a concern with regard to therapeutic outcomes in family law disputes, adding that research shows that ongoing levels of conflict, post-divorce, harms children. She noted that if one reads any research by American researcher, Dr Joan Kelly one can come to the conclusion about the fact that the ongoing acrimony is the more potent predictor of child maladjustment.

Dr Martalas said that family law disputes require speedy outcomes and if one read s 4(b) of the Children’s Act 38 of 2005 it states that a speedy outcome is what is best for the child. She added that courts are discouraged from considering emotional context of the judgment, but the emotional consequences are not part of the judgment. She pointed out that the court is not concerned with the immediate concern of the parties involved and that legal processes are anti-therapeutic for parents and children.

Among other topics that were discussed at the conference were –

  • effective listening;
  • the proper role of an expert witness;
  • contending with secondary trauma suffered by the profession; and
  • is parenting coordination a 21st century possibility?

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