By Freedomof Religion South Africa
On 18 September 2019, theConstitutional Court declared the common law defence of reasonable and moderatechastisement to be unconstitutional. This defence has historically assisted parentsagainst a charge of assault of their own child/ren, provided of course that thediscipline was both reasonable and moderate. (Abuse of, or violence against,children has always been illegal in South Africa).
The practical implication of the Court’s judgment is that all spanking (which here is used to mean any form of physical discipline) - whether on the hand or on the bottom, and regardless of how light or well-intended – and even the threat thereof, is now a criminal offence with criminal consequences for the parent/s involved. (For an article on the practical implications of the judgment, see here). The Court’s judgment is final and cannot be appealed.
This article provides a legal analysis of the Court’s 27-pagejudgment (written by Chief Justice Mogoeng Mogoeng, with the other judgesconcurring) in coming to the conclusions, and order, that it did.
Backgroundto the judgment
The judgment was made in the context of an appeal by Freedom ofReligion South Africa (FOR SA) against an earlier decision by the Gauteng HighCourt, involving a Muslim father who had severely beaten his teenage son forwatching pornographic material. FOR SA was invited by the High Court be a“Friend of the Court” in the matter and argued that, on the facts, this was a clearcase of abuse - which has always been illegal in South African law. As such,the Court should deal with the matter on the facts and in terms of establishedlaw, and not use it as a “test case” to decide whether all spanking – no matterhow light or well-intentioned – should be made illegal. The High Court, however,disagreed and declared the defence of reasonable and moderate chastisement tobe unconstitutional.
Neither the Muslim father nor the State appealed the decision,and thus it was left to FOR SA to appeal to the Supreme Court of Appeal (SCA)in Bloemfontein, which we did. The SCA referred FOR SA to the ConstitutionalCourt, as a result of which we then applied to the Constitutional Court forstanding and leave to appeal the judgment of the Gauteng High Court.
Legal Standing, and Leave to Appeal
Against this background, the first question before the Constitutional Court was whether FOR SA – who acted as a “Friend of the Court” (rather than as an actual party) in the High Court – had standing to bring an application for leave to appeal to the Constitutional Court (paras 13 – 80 of the judgment). On this question, the Court agreed with FOR SA that the matter was in the public interest (because it involved the best interests of children), and that it was also in the interests of justice for the matter to be resolved (because it affected the general body of parents and children in the country). What weighed heavily with the Court, was the fact that FOR SA was not seeking to be involved in the matter for the first time. The Court thus granted FOR SA standing to intervene and to bring an application for leave to appeal.
Turning then to the question of leave to appeal (paras 21 – 28 of the judgment), the Court agreed with FOR SA that the application raised an arguable point of law of general public importance which could only be dealt with by the Constitutional Court. The Court also thought that FOR SA had reasonable prospects of success “particularly because some comparable democracies retain the common law defence of reasonable and moderate chastisement”. For these reasons, the Court found that “the interests of justice thus point to the granting of leave to appeal” and also specifically confirmed that “this Court has jurisdiction in this matter” even though, ordinarily, litigants must first go through the SCA in matters involving the application of interpretation of the common law.
In light of these (solely positive) findings by theConstitutional Court on the question of leave to appeal, the Court’s findingthat FOR SA’s “application for leave toappeal is dismissed” (as part of the final order made by the Court) is,with respect, non-sensical. Further reading of the judgment makes it clear thatit is FOR SA’s actual appeal that was dismissed, rather than its applicationfor leave to appeal.
The actual appeal
The Court’s decision to effectively outlaw spanking, was primarily based on s 12(1)(c) of the Constitution 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.” [Own emphasis.] Having found that spanking amounts to violence and is therefore unconstitutional (s 12(1)(c)), the Court found that it also amounted to a violation of human dignity (s 10)).
The Court did not, in its judgment, consider or deal with any of the other fundamental rights which the other side argued were being violated by the defence of reasonable and moderate chastisement, including the right to equal protection under the law (s 9(3)); the right not to be treated in a cruel, inhuman or degrading way (s 12(1)(e)); the right to bodily and psychological integrity (s 12(2)); or the right of children to be protected from maltreatment, neglect, abuse of degradation (s 28(1)(d)). The Court did however in its judgment reference the right to, and the constitutional principle that, a child’s best interests are of paramount importance in every matter concerning the child (s 28(2)).
Spankingis violence (paras 36 – 44)
In finding that spanking (and even the threat thereof) amount to “violence” from a “private source” (s 12 (1)(c)), the Court relied on a single dictionary definition of “violence” as meaning “behaviour involving physical force intended to hurt, damage or kill someone or something” (and said that assault has the same meaning). In the Court’s opinion, “violence is not so much about the manner and extent of the application of the force as it is about the mere exertion of some force or the threat thereof” – and for which, the Court found, there is no place in our “painful and shameful history of widespread and institutionalised violence”. (This, despite the Court’s acknowledgment a few paragraphs later, that “parental chastisement is significantly different from the institutionalised administration of corporal punishment [in prisons and schools] that has since been abolished”).
While the Court acknowledged that “there are indeed sound and wisdom-laden, faith-based and cultural considerations behind the application of the rod”, it nevertheless found that any “parental chastisement of a child, however moderate or reasonable does … meet the threshold requirement of violence” and is therefore prohibited by s 12(1)(c) of the Constitution.
Spankingviolates human dignity (paras45 – 48):
Having found that all spanking –no matter how light or well-intentioned - amounts to violence, the Court had noissue finding that it also violates the human dignity of children. Again, it isstriking that the Court recognises “thereality that being held accountable for actually wrongdoing generally has thesame effect”, but specifically finds that spanking should beunconstitutional also for violating human dignity (s 10 of the Constitution).
Justificationanalysis (paras 49 – 71):
The Court next consideredwhether there is any justification (in terms of s 36 of the Constitution) forkeeping the defence of reasonable and moderate chastisement intact, and therebylimit the constitutional guarantee of “no violence” (s 12(1)(c)) and humandignity (s 10). In this regard, it found as follows:
While the Court correctly found that our Constitution does not expresslyrecognise “the right to parenting” or the right to discipline, it is neverthelessdisappointing that the Court failed to consider, or properly deal with,international treaties that it is constitutionally bound to consider wheninterpreting any right in the Bill of Rights (s 39(1)(b)), which treaties are bindingon South Africa and that recognise the primary role of parents in theupbringing and education of their children. None of these treaties expresslyprohibit parental spanking.
For all these reasons, the Courtfound that there was no reasonable and justifiable reason to retain the commonlaw defence of reasonable and moderate chastisement, which was thereforedeclared to be unconstitutional with prospective effect. Practically, thismeans that from 18 September 2019 going forward, all spanking – no matter howlight or well-intentioned – will amount to “violence”or criminal assault with criminal consequences for the parent/s involved. As afurther result, Parliament is now expected to amend the Children’s Act of 2005so as to bring it in line with the judgment.
Court’sreliance on research for and against spanking:
It is also important to understand that, ultimately, the Court’s decision on whether or not (the legal defence of) reasonable and moderate chastisement should be retained or abolished was a legal question (i.e. whether spanking violates any fundamental human rights) rather than a scientific one (i.e. whether or not the research shows that spanking is good or bad). As such, it would probably not make any difference, even if more evidence were to come to light that could support the case for spanking.
Of course, the social science has some bearing on the legalquestion that the Court ultimately has to decide, but it is not the (sole orprimary) determining factor. Because of the way in which the matter came beforethe Court (i.e. on application rather than through action proceedings), no oralevidence was led in Court. However, the parties on both sides did submit, aspart of the papers and arguments before the Court, the best research on bothsides of the spectrum.
While the judgment contains some observations regarding thesocial science research, it is unfortunate that these observations are of ageneral rather than a specific nature (referring to specific authors or work). In particular, the judgment fails to explainwhy – from a legal or evidentiary point of view - the research against spankingand in favour of “positive parenting”,was preferable over the research that supports reasonable and moderatechastisement.
So, for example, the Court on the one hand acknowledged thatit is “debatable” whether spanking “invariably produces negative consequences”(para 53), and accepted that “properlymanaged reasonable and moderate chastisement could arguably yield positiveresults and accommodate the love-inspired consequence management contended forby FOR SA. And that would explain why so many other civilisations andcomparable democracies have kept this defence alive and relatively few haveabolished it” (para 54).
However, later in its judgment (para 64), and without any substantiationtherefore (particularly in light of the voluminous evidence put up by FOR SA insupport of the benefits of reasonable and moderate chastisement, includingcomprehensive and most recent research by Prof Robert Larzelere), the Court statedthat there was a “paucity of clear orsatisfactory empirical evidence that supports chastisement as a beneficialmeans of instilling discipline. Though not conclusive, there are, however somepointers to the potentially harmful effect of chastisement.” The Courtacknowledges that “some of that research”(referring to research citing the harmful effects of chastisement) “is open to criticism in that very littleeffort seems to have been made to distinguish between moderate and excessive orabusive application of force to the body of a child”, yet in the very nextsentence – and again, without reference to any particular authority - findsthat “that said, positive parentingreduces the need to enforce discipline by resorting to potentially violentmethods.”
While it may be so that, on the day in Court, not much timewas devoted to questions or argument regarding the benefits and disadvantages(according to social science) of spanking, it is simply not correct – in lightof the voluminous research that was submitted to the court as part of thewritten submissions - to say that “notmuch was said to help us appreciate that the benefits of that chastisementindeed outweigh its disadvantages.” (para 65).
Ultimately, and again without any proper substantiation forfinding as it did, the Court found that “positive parenting” is a disciplinarymechanism or measure that is “moreconsistent with love [and] care”(para 66) and therefore an “effectivenon-violent option” that “benefits [the child] most with no or minimum harm” (para 67).
Could the Court have found differently?
A question that has been asked,is whether – given that the Constitution is the supreme law of the land – theCourt (or indeed any of the judges) could have found differently? The answer tothis is, “yes, absolutely yes!”.
Firstly, FOR SA’s first and main argument in the case, was that this was not a matter for the Court – but for Parliament as the major engine for law reform - to decide, particularly in circumstances where a draft Bill was already making its way to Parliament. It is thus disappointing that the judgment nowhere refers to, let alone deals with, this argument. Referring it to Parliament as the elected representatives of the people of South Africa would nevertheless have been an option to the Court.
Secondly, it is open to anyjudge to write a dissenting judgment (if he/she does not agree with the rest ofthe judges), or a separate but concurring judgment (if he/she comes to the sameconclusion as the other judges but for different reasons). It would, therefore,have been entirely possible for any one or more of the judges to, if he/sheholds to a different interpretation of the Constitution, disagree with theothers and write a dissenting judgment as often happens in constitutionalmatters.
Thirdly, nowhere does the Constitution say that spanking is unconstitutional – this is an interpretation by the judges of what they believe a certain provision of the Constitution (namely s 12(1)(c) that prohibits “all forms of violence”) to imply. In interpreting “violence” for example, the Court relied on a single dictionary definition of “violence” as being “behaviour involving physical force intended to hurt, damage or kill someone or something” (para 38). When regard is had to other dictionaries however, “violence” could well have been interpreted very differently or more narrowly.
Fourthly, because ultimately what the Court is asked to do (particularly in the context of s 36 of the Constitution), is to balance or weigh up certain rights against each other, much depends – once again – on the interpretation and importance that the judges give to the competing rights in each particular context. So, for example, it could have been open to the Court to balance the competing rights in such a way that recognise the binding international law rights of parents to raise their children in accordance with their religious or moral convictions. In this regard, it is important to remember that the same Constitution which, as many are quick to point out, is “the supreme law of the land”, protects the right to religious freedom as a fundamental human right (s 15). This right, our Constitutional Court has time and time again said, includes the right not only to believe in our hearts, but to say and to live out our beliefs -freely and without fear of punishment or persecution by the State. As such, the Constitution and the Bible (including the Scriptures on disciplining of children) are not at odds with one another as one might presume – rather, the former guarantees the latter!
Again, it is important toremember that abuse of, and violence against, children have always beenillegal. All that the Court was asked to protect (keep intact), was the legaldefence of reasonable and moderate chastisement that historically has assistedparents when faced with a charge of assault of their own children – provided,of course, that the discipline was reasonable and moderate! If the Court feltthat the boundaries of what is “reasonable” and “moderate” were unclear,another option open to the Court would have been to refer the matter toParliament to define same more clearly in legislation (e.g. no bruises, no redmarks, no implements, etc). This “calibrated approach” is the approach thatstill applies in parts of the United Kingdom.
Finally, and as alreadyindicated above, the Constitutional Court itself acknowledges that “many other civilisations and comparabledemocracies have kept this defence [of reasonable and moderate chastisement]alive and relatively few have abolished it” (para 54). The reality is thatphysical chastisement remains legal in most countries in the world, includingwell-developed democracies such as Australia, Canada, the UK and the USA.
With regard to Canadaspecifically, whose human rights framework is not much different from ours andwhose Canadian Charter jurisprudence continues to have great influence on SouthAfrican constitutional law, the Supreme Court specifically found that completeabolition of physical chastisement was an unwarranted intrusion into familylife that would “expose the family to theincursion of state law enforcement for every trivial slap or spanking”,with the concomitant harm to the child resulting from his/her parents beingcharged and pulled into the criminal justice system (Canadian Foundation for Children,Youth and the Law v Canada (Attorney-General) (2004)).
In all these circumstances, itwas very much open to the South African Constitutional Court (or indeed any ofits judges) to interpret the Constitution differently to the way in which ithad, and to make a judgment that would have protected the constitutional rightof parents – as those who have the primary responsibility for the upbringingand education of their children – to raise (including to discipline) theirchildren in accordance with their religious or moral convictions. Where suchdiscipline exceeds the bounds of reasonableness and moderation, the State hasalways – in terms of existing laws - had every right to step in to protect thechildren from “violence” or abuse and would, in fact, be remiss in its duty todo so, if it does not.
Unfortunately, because of theCourt’s narrow interpretation of “violence”in s 12(1)(c) of the Constitution (relying on a single unique dictionarydefinition, that differs from other dictionary definitions), well-meaningparents who love their children and only want what is best for them, are nowpotential criminals who will be prosecuted “foreven the minutest of well-intentioned infractions” (paragraph 52).
Time will tell if this judgmentwill be effective in addressing actual child abuse in South Africa. Criminalstatistics in other countries (including Sweden and New Zealand) wherereasonable and moderate chastisement has been banned, show that it does not. Instead,it opens the floodgates to criminal investigation against and prosecution ofparents for minor acts of physical discipline, with the possibility that manyparents will have their children removed from their care.
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