YG v S (A263/2016) [2017] ZAGPJHC 290; 2018 (1) SACR 64 (GJ) (19 October 2017)

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[2017] ZAGPJHC 290
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YG v S (A263/2016) [2017] ZAGPJHC 290; 2018 (1) SACR 64 (GJ) (19 October 2017)

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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: A263/2016
REPORTABLE
OF
INTEREST TO OTHER JUDGES
REVISED
19/20/2017
In
the matter between:
YG
Appellant
and
THE
STATE
Respondent
together
with
THE
CHILDREN'S
INSTITUTE
First

Amicus Curiae
THE
QUAKER PEACE
CENTRE
Second

Amicus Curiae
SONKE
GENDER
JUSTICE
Third

Amicus Curiae
FREEDOM
OF RELIGION SOUTH AFRICA
Fourth

Amicus Curiae
J
U D G M E N T
KEIGHTLEY,
J:
INTRODUCTION
[1]
The appellant in this matter was tried in the Regional Court,
Johannesburg, on two charges of assault with intent to do grievous

bodily harm. The first charge related to his alleged assault of his
13-year old son, M, and the second charge related to his alleged

assault of his wife. The two assaults were alleged to have occurred
at the family home on the same day, although they occurred
at
different times.
[2]
The trial court found the appellant guilty on both charges on the
competent verdict of common assault. The court invoked
section
297(1)(a)(ii)
of the
Criminal Procedure Act 51 of 1977
, and postponed
the passing of sentence against the appellant for a period of five
years. The magistrate granted the appellant leave
to appeal against
his convictions.
[3]
As far as the facts relating to the first charge are concerned, it is
common cause that on the day of the incident M was sitting
on his
parents' bed in their bedroom using one of the family's iPads. The
appellant entered the room and accused M of watching
pornographic
material on the iPad. M denied this, but the appellant persisted with
the accusation. There was a verbal exchange
between them, with the
appellant insisting that M should tell him the truth. When M repeated
his denial the appellant hit him.
He told M that he was lying, and he
said that he was giving him another opportunity to tell the truth.
When M refused to admit
he was lying, the appellant hit him again.
This pattern repeated itself a number of times.
[4]
The appellant's defence at the trial was that he had done nothing
more than to exercise his right as a parent to chastise M
by meting
out reasonable corporal punishment for M's indiscipline. He told the
court that they are a Muslim family and that M knew
that pornography
is strictly forbidden.
[5]
Certain important details of the incident are disputed. M testified
that the appellant punched him with his fists on M's thighs.
He also
punched him on the chest. At this point M lost his balance and fell
off the bed onto the floor and hit his back against
the security
gate, but his back was not really injured by the fall. While he was
on the floor, the appellant kicked him three or
four times with his
bare foot. M was very sore. He was crying and he was emotional. He
also testified that the appellant was very
angry during the incident.
[6]
The appellant's version was that he had only slapped M with an open
hand on his buttocks. He did not dispute that this happened
a number
of times after M repeatedly denied that he was lying. He testified
that on one occasion he might have hit M on the back
of the thighs
but this happened when M tried to twist away from the appellant's
blows to his buttocks. As the appellant described
his conduct, he had
given M a spanking on the buttocks. He had done this because he was
disappointed in M's conduct in watching
pornographic material, which
is forbidden in their religion, and for lying to the appellant about
this. The appellant claimed that
he did not intend to assault M. He
said that:
"I just intended(ed) to
discipline him (M) out of concern to show him in the future what is
right and what is wrong."
[7]
M was examined by a medical doctor 4 days after the incident took
place. Dr van der Poel's clinical findings were recorded on
the J88
form, and confirmed by him at the trial. He found a tender, slight
swelling on the left side of the chest, and a tender
left scapular.
There were two blue bruises on the upper lateral part of the right
leg, and several blue bruises on the upper lateral
part of the left
leg. The J88 form indicates that the leg bruises were in the thigh
region. Dr van der Poel testified that the
injuries were consistent
with an assault. However, he did not hesitate under cross-examination
to confirm that the tenderness and
swelling on the chest area could
have been caused by something else, such as a soccer ball. He
described the amount of force required
to cause the injuries as
medium, rather then severe or slight. He was asked under
cross-examination whether the injuries could
have been caused by a
hiding with an open hand. To this Dr van der Poe! responded as
follows:
"Your worship, no. I do not think
... not the legs, not the bruises. ... Because then we would have
bigger areas of bruises
and it would be bigger areas and it was not
that big areas. It was more (round) areas."
[1]
[8]
According to Dr van der Poel, swellings usually take between 5-7 days
to go down, but discolouration usually takes longer.
[9]
The trial court found that the probabilities favoured the appellant's
version on the question of whether or not his son, M,
had been
viewing pornographic material on the iPad. However, the court went on
to find that M's untruthfulness on this aspect of
his evidence should
not be overemphasised, and that it did not taint the remainder of M's
evidence. The trial court went on to
accept M's version of the
assault on M, and to reject that of the appellant.
[10]
As regards the assault on his wife, Ms G, the trial court also
rejected the appellant's version. I will deal with the merits
of the
appeal against the appellant's convictions in respect of both counts
in due course. First, however, it is necessary to deal
with an issue
raised by this court when it considered the appeal. That issue
concerns the question of whether the defence of moderate
chastisement
to a charge of assault, which is based on the common-law right of a
parent to inflict corporal punishment on his or
her children, is
compatible with the Constitution. As I have already indicated, this
was the defence raised by the appellant against
the charge of assault
in respect of M.
[11]
This court requested counsel for both the appellant and the State to
make submissions on the issue. In addition, we issued
directions
inviting any interested parties to be joined as
amici
of the
court and to make submissions. In particular, we invited submissions
from the Minister of Justice and Correctional Services,
and the
Minister of Social Development. The former Minister did not respond
to the invitation, but we received written submissions
on behalf of
the Minister of Social Development, for which we are grateful.
[12]
Apart from the Minister of Social Development, we admitted four
amici
curiae
to the proceedings. They made both written and oral
submissions. The first three
amici
were represented by the
Centre for Child Law, and made joint submissions. They were the
Children's Institute, the Quaker Peace Centre,
and Sonke Gender
Justice. For simplicity's sake, I refer to them collectively as "the
CCL
amici" .
The fourth
amicus
was Freedom of
Religion South Africa ("FORSA").
THE
AMICI CURIAE
[13]
The Children's Institute was established at the University of Cape
Town in 2001. It's mission is to contribute to the development
of
policies, laws and services that promote equality and realise the
rights and improve the conditions of all children in South
Africa,
through research, advocacy, education and technical support. One of
the focuses of its work is the high rate of violence
and abuse of
children in South Africa.
[14]
The Quaker Peace Centre ("the QPC") was founded in 1987 by
the Western Cape Religious Society of Friends (Quakers)
in response
to the repressive policies of apartheid and the need for developing
non-violent methods of problem-solving, interaction
and conflict
resolution in South African society. Among other things, the QPC
works with young parents providing support to, information
on and
skills for implementing positive and non-violent discipline of
children.
[15]
Sonke Gender Justice supports the development of just and democratic
societies through equitable, healthy and happy relationships
between
men, women and children. It works to promote gender equality and to
prevent domestic and sexual violence. One of Sonke's
portfolios is
entitled Child Rights and Positive Parenting, which is aimed at
working to end violence against children and to promote
child-rights
and gender-equitable, non-violent and positive parenting. Among other
things, Sonke has worked with the Positive Discipline
Working Group
towards achieving an amendment to the Children's Act to establish a
full ban on corporal punishment of children,
including in the home.
[16]
Not surprisingly, the CCL
amici
submitted that the common-law
defence of reasonable chastisement is inconsistent with the
Constitution. They submitted that this
court should develop the
common law by declaring that this defence is no longer applicable. In
addition to their legal submissions,
the CCL filed an expert opinion
in the form of an affidavit by the Director of the Children's
Institute, Prof Shanaaz Mathews,
covering the linkages between
corporal punishment and violence against children.
[17]
FORSA is a non-profit company with the objective of engaging in
advancing freedom of religion in South Africa through public

awareness and research. They aver that they have an endorsement base
of religious leaders representing more than 6 million people
in South
Africa, spanning various denominations, churches and faith groups.
FORSA explains that its interest in the matter lies
in that millions
of believers believe that the scriptures command reasonable and
appropriate correction of their children. Thus,
for millions of
believers, child correction, including physical chastisement at
times, is a central to their faith. They submit
that the court has a
duty to respect and protect the religious convictions and beliefs of
those believers who follow this tenet.
FORSA advocates for the
retention of the common-law defence of reasonable chastisement on the
basis that it is compatible with
the Constitution.
[18]
The Minister of Social Development supports the view that the
reasonable chastisement defence is incompatible with the
Constitution,
and submits that it should be declared
unconstitutional.
[19]
I will deal with the submissions made by the Minister of Social
Development, the
amici,
the appellant and the State on this
issue in more detail in due course.
SHOULD
THIS COURT DECIDE THE CONSTITUTIONAL ISSUE?
[20]
As indicated earlier, the constitutional issue of whether the
common-law defence of reasonable chastisement is compatible with
the
Bill of Rights was raised by this court on appeal. The Constitutional
Court has held that a court may, of its own accord, raise
and decide
a constitutional issue. This is so in circumstances where it is
necessary for purposes of disposing of the case before
it. It may
also be so where it is otherwise necessary in the interests of
justice.
[2]
The Court refrained from cataloguing the circumstances in which it
would be in the interests of justice for a court to raise and
decide
a constitutional issue. However, it noted that there should be
compelling reasons for doing so. Much would be dependent
on the
circumstances of each case. The Court expressly pointed out that even
in cases where a matter has become moot, it may be
in the interests
of justice to decide a constitutional issue where this would be in
the public interest and where the matter has
been fully and fairly
aired before the court.
[3]
[21]
The three CCL
amici
submitted that this was a
matter where the court could properly raise and decide the
constitutional issue posed. They added an important
rider to this
submission. The CCL
amici
submitted that the
principle of legality required that even if this court were to decide
that the common-law rule was unconstitutional,
the effect of a
declaration to this effect should be prospective and should not
affect the appellant's rights in this matter. This
is in accordance
with the principle laid down in
Masiya
v
Director
of Public Prosecutions (Pretoria) and Another (Centre for Applied
Legal Studies and Another, Amici Curiae).
[4]
In that case the Constitutional Court held that:
"... a development that is
necessary to clarify the law should not be to the detriment of the
accused person concerned unless
he was aware of the nature of the
criminality of his act."
[5]
[22]
None of the parties before this court suggested that there was any
scope for the retrospective application of any declaration
of
constitutional invalidity in this case. Indeed, to make such an order
retrospectively plainly would be contrary to the appellant's
rights
under section 35 of the Constitution. Strictly speaking, this means
that the determination of the constitutional issue is
not necessary
to dispose of the appeal.
[23]
The question that then arises is whether it is in the interests of
justice for this court to do so in this case. FORSA submitted
that
unless it was found on appeal that the appellant had acted
within
the bounds of the common
law defence, the constitutional issue was moot, and should not be
considered any further. FORSA pointed
to the Supreme Court of Appeal
decision in
Minister of
Justice and Others v Estate Stransham-Ford
[6]
on this point. In that
case
the SCA found that it was
not open to courts of first instance to make orders on causes of
action that have been extinguished merely
because they think that
their decision will have broader societal implications.
[7]
The
court
found
that:
"There must be many areas of the
law of public interest where a judge may think that it would be
helpful to have clarification
but, unless the occasion arises in
litigation that is properly before the court, it is not open to a
judge to undertake that task.
The courts have no plenary power to
raise legal issues and make and shape the common law."
[8]
[24]
It must be borne in mind that these statements were made in the
context of the facts of the
Stransham-Ford
case. The SCA noted that
the relief sought by the applicant had been personal to him, and had
been deliberately cast in those terms.
Thus, when the applicant died
before the court had made its ruling (although his death was unknown
to the court), the entire cause
of action died with him. In those
circumstances, the SCA found that there was no longer a triable issue
for determination by the
court. The SCA noted, however, that there
are cases in which a court may have a discretion to determine an
issue even though it
has become moot subsequent to a trial court's
decision. The discretion exists where the interests of justice are
implicated, and
where the order may have a practical impact on the
future conduct of one or both of the parties.
[9]
[25]
I am mindful of the SCA's injunction against courts sallying forth to
decide constitutional issues where it is not necessary
or in the
interests of justice to do so. However, in my view, the present case
is one where the interests of justice require a
consideration of the
constitutionality of the common-law defence of reasonable
chastisement.
[26]
Critically, a determination of this issue will have important
practical implications for how the State deals with charges of

assault involving parents and their children in other cases. It is
important for the State, and for parents who may be implicated
in the
future, to know whether the common-law defence is still available to
an accused person. The situation is similar to that
existing in the
Mayisa
case, where what was in issue was the common-law
definition of rape. In that case, the Constitutional Court found that
it was important
to rule on the constitutionality of the definition,
albeit that, because of the prospective nature of the declaration, it
would
have no impact on the conviction of the appellant.
[27]
It is also important to bear in mind that courts are enjoined to
apply the rights contained in the Constitution.
[10]
Courts have a constitutional obligation to develop the common law to
bring it in line with the values that underlie our Constitution.
[11]
This is expressly recognised in section 39(2) of the Constitution.
The Constitutional Court has held that the need to develop the
common
law arises where an existing common-law rule is inconsistent with a
constitutional provision, or where the common law rule
falls short of
the spirit, purport or objects of the Bill of Rights.
[12]
[28]
In the present case, the constitutional rights implicated are the
rights of children, who are afforded particular protection
under the
Bill of Rights.
[13]
Because of the application of the principle of legality, it will
always be the case that any order declaring the common-law defence
of
reasonable chastisement to be unconstitutional will be prospective,
rather than retrospective in effect. This means that, as
a matter of
course, the issue will always be moot when it arises for
consideration in the sense that it will not determine the
rights of
the particular accused before the court. If this mootness were reason
enough for a court like this one to refuse to consider
the
constitutional issue, it would mean that children's rights would
continue to be placed in potential jeopardy unless and until
the
Legislature took action. This would be contrary to section 28(2) of
the Constitution, which provides that a child's best interests
are
paramount in every matter concerning a child. It would also place the
courts in the invidious position of having to ignore
the potential
unconstitutionality of the common-law rule, and thus bringing them
into conflict with their duty under section 8(1)
to apply the Bill of
Rights, and their duty under section 39(2) to develop the common law
in line with the Bill of Rights.
[29]
It is also important to record that in this case this court took
steps to invite submissions from all interested parties beyond
the
parties directly involved in the appeal. This court has had the
benefit of extensive submissions by the parties and the
amici
on
the issues involved. It has also had the benefit of submissions on
behalf of the Minister for Social Development, who had no
difficulty
with the court determining the constitutionality of the common-law
defence, and supported a declaration of unconstitutionality.

Furthermore, in the affidavit supporting the Minister of Social
Development's position, reference is made to a draft policy put
out
by the Department that promotes a ban on corporal and humiliating
punishment in all spheres of children's lives, together with
the
promotion of parenting skills and positive disciplinary methods.
There is no indication from the Department whether and when
it will
proceed to draft legislation to give effect to this policy. It seems,
therefore, that any legislative intervention is still
a long way off.
In my view, the public interest would not be served by this court
declining to take steps to determine this important
constitutional
issue in the interim.
[30]
For all of these reasons, I am of the view that in this case it is in
the interests of justice for this court to determine
the issue of
whether the common-law defence of reasonable chastisement is
constitutional.
ASSAULT
AND THE DEFENCE OF REASONABLE CHASTISEMENT
[31]
The common law crime of assault is defined as the unlawful and
intentional application of force to the person of another.
[14]
Our existing common law also recognises a specific defence to a
charge of assault for parents who use the application of physical

force to discipline their children, provided this falls within the
bounds of what is called moderate or reasonable chastisement.
This is
the so-called reasonable chastisement defence, which is also
sometimes referred to as the moderate chastisement defence
or the
disciplinary chastisement defence.
[15]
[32]
Most authorities ascribe the origins of this defence to the
common-law rights and duties of parents: on the one hand, parents

have a right to demand that their children pay due reverence and
obedience to their orders, and on the other, the parents have
a duty
to discipline their children in order to correct their behaviour.
[16]
Burchell and Hunt
[17]
describe the origins of the defence in the following terms:
"Consistent with the social
importance attributed to the family unit in western society, the law
has traditionally conceded
to parents a uniquely independent
authority in rearing children. This meant that the State did not
interfere in the exercise of
the rights, duties and responsibilities
of the parent in rearing children."
[33]
Being a common-law rule, there are no hard and fast rules as to what
constitutes reasonable or moderate chastisement. The physical
force
employed must have been meted out
bona
fide
for disciplinary
purposes, but the method and extent of the force falls to the
discretion of the parent, provided, of course, that
it is not
excessive. In fact our courts have held, albeit more than one hundred
years ago, that they will not lightly interfere
with this parental
discretion as there is a presumption that moderate chastisement has
not been meted out
mala
fides.
[18]
[34]
In determining what is reasonable or moderate, much will depend on
the facts of each case. Our courts have indicated that regard
must be
had to factors such as:
[34.1] the nature of the child's
disciplinary infraction;
[34.2]  the motive of the person
administering the punishment;
[34.3]  the degree of force
applied;
[34.4]  the object that was used
to administer the punishment; and
[34.5]  the age, sex and build of
the child.
[19]
[35]
The effect of the common-law defence is simple: provided that the
person who applies the moderate physical force in question
is the
parent, and the victim is his or her child who is being disciplined,
conduct that would otherwise be an unlawful assault,
if meted out by
and to anyone else, is rendered lawful. Is this constitutional in our
democratic era?
THE
CONSTITUTIONAL RIGHTS IMPLICATED
[36]
There was general agreement among the parties as to the range of
constitutional rights implicated. As far as the child is concerned,

they include
[36.1]  the right to human
dignity (section 10);
[36.2]  the right to equal
protection under the law (section 9(3));
[36.3] the right to be free from all
forms of violence from either public or private sources (section
12(1)(c));
[36.4] the right not be treated or
punished in a cruel, inhuman or degrading way (section 12(1)(e));
[36.5] the right of children to be
protected from maltreatment, neglect, abuse or degradation (section
28(1)(d));
[36.6] the right to and the
constitutional principle that a child's best interests are of
paramount importance in every matter concerning
the child (section
28(2)).
[37]
FORSA submits that as far as parents are concerned a number of their
constitutional rights are also implicated. These are the
right to
freedom of religion, belief and opinion (section 15); the right to
human dignity (section 1O); and the rights of cultural
and religious
communities (section 31). In addition, FORSA submits that the
Constitutional Court has given implicit recognition
to the importance
of the protection of family life through South Africa's ratification
of international human rights treaties that
protect families as the
natural unit of society.
[20]
The Court held in this regard that:
"The importance of the family
unit for society is recognised in the international human rights
instruments referred to above
when they state that the family is the
natural and fundamental unit of our society.
However,
families come in many shapes and sizes. The definition of the family
also changes as social practices and traditions change.
In
recognising the importance of the family, we must take care not to
entrench particular forms of family at the expense of other

forms."
[21]
[38]
The Court also pointed out that there was sufficient protection of
marriage and family life through the recognition in our
Constitution
of the rights to dignity, equality and freedom of the person. For
purposes of the present case, it seems to me that
one should not lose
focus on the actual constitutional rights implicated, albeit that the
issue plays out in the context of the
family. In other words, it must
be recognised that there is no protection of a self-standing right to
family life
per se
in our Constitution. However, in this case
the family is a critical component of the constitutional inquiry
involved in in weighing
and balancing the rights that are directly
implicated. It is also important to bear in mind, as the Court noted
in
Dawood,
that families come in all shapes and sizes, and
that the notion of what is family is dynamic and changeable, in line
with societal
developments.
JURISPRUDENTIAL
AND LEGISLATIVE BACKGROUND
[39]
To date our courts have considered and pronounced on the
constitutionality of corporal punishment
vis-a-vis
children in
two contexts, neither of which directly involves the family
environment.
[40]
In S
v Williams
[22]
the Constitutional Court found that juvenile whipping as a sentence
under
section 294
of the
Criminal Procedure Act 51 of 1977
was
unconstitutional on the grounds that it violated the right to dignity
and constituted cruel, inhuman and degrading treatment.
The Court
noted international trend towards moving away from punishments
placing undue emphasis on retribution and vengeance, rather
than on
correction, prevention and the recognition of human rights.
[23]
It also noted the unacceptable levels of violence in South Africa,
and found that the legitimisation of the institutionalised use
of
violence by the state was incompatible with the Constitution.
[24]
FORSA correctly point out that the constitutional inquiry in
Williams
was on the
institutionalised meting out of corporal punishment by impersonal
state authorities as a form of judicially sanctioned
punishment. It
is so that physical chastisement in the home by a parent differs from
corporal punishment in this institutionalised
context. Whether or not
this difference is sufficient to render the practice (and the defence
of reasonable chastisement) constitutional
is a question that will be
considered in due course. What is important about the
Williams
judgment for purposes of
the present inquiry is the recognition given by the Court to the
vulnerability of children and the fundamental
importance of the duty
on the State to protect them. The Court held, in this regard, that:
"One would have thought that it
is precisely because a juvenile is of a more impressionable and
sensitive nature that he should
be protected from experiences which
may cause him to be coarsened and hardened.
If
the State, as role model par excellence, treats the weakest and the
most vulnerable among us in a manner which diminishes rather
than
enhances their self-esteem and human dignity, the danger increases
that their regard for a culture of decency and respect
for the rights
of others will be diminished.
"
[25]
(my emphasis)
[41]
In
Christian Education South
Africa v Minister of Education
[26]
the Constitutional Court dealt with the constitutionality of the
prohibition on corporal punishment in schools under the Schools
Act.
In that case the constitutional challenge was based squarely on the
rights to freedom of religion under sections 15 and 31
of the
Constitution. The applicants argued that their rights were infringed
in that the Act prevented them from consenting to teachers
dispensing
corporal punishment in schools in line with their parental religious
beliefs. They sought an exemption from the application
of the
relevant provisions of the Act to accommodate their beliefs.
[42]
The Court proceeded on the assumption that the Schools Act limited
the applicants' rights as alleged. It was sensitive to the
fact that
it was not being called upon to consider the constitutionality of the
meting out of reasonable chastisement in the family
home.
[27]
The Court noted in this regard that there was a difference between
the two situations in that parental discipline involved
"the
intimate and spontaneous atmosphere of the home"
rather
than
"the detached and
institutional environment of the school'.
However,
the Court recognised the significance of existing social factors such
as the extent of traumatic child abuse and the painful
events of
South Africa's past when
"the
claims of protesting youth were met with force rather than reason".
In this regard, the Court
recognised that these issues necessarily invoked legitimate concerns
on the part of the state:
"...such broad considerations
taken from past and present are highly relevant to the degree of
legitimate concern that the
state may have in an area loaded with
social pain.
They also indicate the real difficulties the State
may have when asked to make exemptions even for the most honourable
of persons.
" (my emphasis)
[43]
The Court specifically stated that the State is under a
constitutional duty to take steps to help diminish the amount of
public
and private violence in society generally, and to protect all
people and especially children from maltreatment, abuse or
degradation.
By ratifying the United Nations Convention on the Rights
of the Child, the State undertook to take all appropriate measures to
protect the child from violence, injury or abuse.
[28]
The Court also reiterated the importance of the constitutional
recognition of the best interests of the child being of paramount

importance, and the need for children to be protected from the
potentially injurious consequences of their parents' religious
practices.
[29]
The Court was persuaded by the arguments presented by the Minister of
Education to the
effect
that
the State had a duty to protect children from the degradation and
indignity inherent in corporal punishment at schools. It
accepted
that any infringement of the applicants' rights was constitutionally
justified.
[44]
Neither of these two judgments speak directly to the question of
parental chastisement in the home and the reasonable chastisement

defence to a charge of assault against a parent. As Sachs J noted in
Christian Education,
the
issue of religious freedom in a secular world is one fraught with
complexity.
[30]
It is important to bear in mind that unlike the situation pertaining
in
Christian Education,
the
right to freedom of religion is not the focal point of the present
case. It is raised by FORSA as one of many reasons why it
says that,
insofar as children's constitutional rights may be held to be
infringed by the reasonable chastisement defence, such
infringement
is constitutionally justifiable.
[45]
There is well-established jurisprudence on the rights of the child
under the Constitution facilitated by the inclusion of section
28,
and South Africa's ratification of the United Nations Convention on
the Rights of the Child ("the CRC"). In
S
v M (Centre for Child Law as Amicus Curiae)
[31]
the Constitutional Court noted the significance of the CRC in that it
had
"become the
international standard against which to measure legislation and
policies, and has established
a
new structure, modelled on
children's right”.
This
involved the need for "a
change
in mindset, one that takes appropriately equivalent account of the
new constitutional vision".
[32]
Although the Court made these remarks in the context of juvenile
justice, they are important principles of general application.
The
Court reiterated that section 28(1) and section 28(2) establish a set
of children's rights that the courts are bound to enforce:
"The ambit of the provisions is
undoubtedly wide. The comprehensive and emphatic language of section
28 indicates that just
as law enforcement must always be
gender-sensitive, so must it always be child-sensitive; that statutes
must be interpreted and
the common law developed in a manner which
favours protecting and advancing the interests of children; and that
courts must function
in a manner which at all times shows due respect
for children's rights."
[46]
The Court in
S v M
laid down a fundamental principle pointing
to a critical mind-shift in the relationship between parents,
children and the protection
of the law. In a passage that is often
cited as identifying the essence of what children's rights mean under
the Constitution,
the Court held as follows:
"Every child has his or her
own dignity. If a child is to be constitutionally imagined as an
individual with a distinctive
personality, and not merely as a
miniature adult waiting to reach full size, he or she cannot be
treated as a mere extension of
his or her parents. umbilically
destined to sink or swim with them
.
... Individually and collectively all children have the right to
express themselves as independent social beings, to have their
own
laughter as well as sorrow, to play, imagine and explore in their own
way, to themselves get to understand their bodies, minds
and
emotions, and above all to learn as they grow how they should conduct
themselves and make choices in the wide social and moral
world of
adulthood.
And foundational
to the enjoyment of the right to childhood is the promotion of the
right as far as possible to live in a secure
and nurturing
environment free from violence. fear, want and avoidable trauma.
"
[33]
(my emphasis)
[47]
For reasons I will expand on in more detail later, this dictum is
critical to how the constitutional issue raised in the present
case
should be approached.
[48]
The Constitutional protection of the rights of the child and South
Africa's ratification of the CRC have spawned specific legislation

establishing a detailed framework for the protection of children. The
Children's Act 38 of 2005
is the primary legislation in this regard.
It lists as some of its objectives the following:
[48.1] to give effect to the
constitutional rights of children, including the right to be
protected from maltreatment, neglect,
abuse or degradation;
[48.2] to give effect to South
Africa's obligations concerning the well- being of children in terms
of international instruments
binding on it;
[48.3] to provide care and protection
to children who are in need of care and protection.
[34]
[49]
The Act places a duty of care on parents in respect of their
children. This includes:
[49.1] the duty to protect the child
from among other things, maltreatment, abuse, neglect, degradation,
and any physical, emotional
or moral harm or hazards;
[35]
[49.2] the duty to protect, respect,
promote and secure the fulfillment of, and guarding against any
infringement of the child's
rights set out in the Bill of Rights;
[36]
[49.3] the duty to guide the behaviour
of the child in "a human manner";
[37]
[49.4] guiding, directing and securing
the child's education and upbringing, including religious and
cultural upbringing and education,
in a manner appropriate to the
child's age, maturity and stage of development.
[38]
[50]
The definition of abuse in the
Children's Act is
broad.  It
means any form of harm or ill-treatment deliberately inflicted on a
child including, among others:
"(a) assaulting a child or
inflicting any other form of deliberate injury to a child; ... or
(e) exposing or subjecting a child to
behaviour that may harm the child psychologically or
emotionally."
[39]
[51]
The Act further establishes a regime to deal with cases of abuse, as
defined. Acts of abuse may be reported to a designated
social worker
or the police for investigation. The matter may be brought before a
children's court and the court may determine
if a child is in need of
care and protection.
[40]
The powers of the court in terms of remedial action in this regard
are broad. It may, among many other things, issue orders invoking

intervention and family preservation programmes. These may relate to
appropriate parenting skills and the promotion of positive,

non-violent forms of discipline.
[41]
In terms of section 305(3), parents who abuse their children will be
guilty of an offence.
[52]
In addition to the
Children's Act, as
with other members of the
household, children may claim the protections afforded under the
Domestic Violence Act 116 of 1998. The
definition of "complainant"
in the Act includes any child in a domestic relationship with the
respondent. Domestic violence
is defined broadly and includes
physical abuse, emotional and psychological abuse, intimidation, and
any other form of abusive
conduct causing harm or the imminent threat
of harm to the health, safety or wellbeing of the complainant.
[42]
[53]
By ratifying the CRC, South Africa bound itself to comply with the
following protections afforded to children:
[53.1] to take all legislative,
administrative, social and educational measures to protect the child
from all forms of physical
or mental violence, injury or abuse,
neglect or negligent treatment, or maltreatment while in the care of
parents;
[43]
[53.2] to take all appropriate measure
to ensure that school discipline is administered in a manner
consistent with the child's
human dignity and in conformity with the
Convention;
[44]
[53.3] to ensure that no child shall
be subjected to torture or other cruel, inhuman or degrading
treatment or punishment.
[45]
[54]
While the CRC does not expressly deal with parental physical
chastisement, the CRC Committee has over the years issued General

Comments laying down guiding principles for contracting states. In
General Comment 8, in 2006, the Committee stated that corporal

punishment is incompatible with the CRC. It constitutes cruel and
degrading treatment. All children have the right to be free from
all
forms of cruel and degrading treatment.
[46]
It stated further that state parties were expected to include in
their periodical reports information on the measure and steps
taken
to eradicate corporal punishment.
[55]
General Comment 13 was issued by the Committee in 2011 to address the
extent and intensity of violence exerted on children.
[47]
Its recommendations included the following:
[55.1] No violence against children is
justifiable, and is preventable.
[55.2] A child rights-based approach
to child caregiving and protection requires a paradigm shift towards
respecting and promoting
the human dignity and physical and
psychological integrity of children as rights-bearing individuals.
[55.3] The concept of dignity requires
that every child is recognised, respected and protected as a rights
holder and as a unique
and valuable human being with individual
personality, distinct needs and privacy.
[48]
[55.4] The Committee recognised the
primary position of families in caregiving and protection and in the
prevention of violence,
but the Committee also recognised that the
majority of violence takes place in the context of families and
therefore intervention
and support is required when children become
victims.
[49]
[55.5] Critically, the Committee noted
that
national laws should
"in no way erode
the child's absolute right to human dignity and physical
and psychological
integrity by describing some forms of violence as legally
or
socially
acceptable''
.
[50]
(my emphasis)
[56]
As recently as October 2016, the Committee had cause to comment on
South Africa's second report on the implementation of its
obligations
under the CRC.
[51]
The Committee made the following pertinent remarks:
[56.1] It was
"concerned that
corporal punishment in the home has not been prohibited and is widely
practiced''.
[56.2] With reference to the
Committee's General Comment No 8, it recommended that South Africa:
"Expedite the adoption of legislation
to prohibit
all forms of corporal punishment in the home, including 'reasonable
chastisemenf
''.
(my emphasis)
[57]
Similarly, the African Committee of Experts on the Rights and Welfare
of the Child in 2014 called on South Africa to ban corporal

punishment in the home and to promote and provide information and
training on positive disciplining. It also urged South Africa
to
harmonise its national laws which currently permit parents to
reasonably chastise their children.
[52]
[58]
It is in light of comments like these that the Department of Social
Development supports the view that the reasonable chastisement

defence is inconsistent with the Constitution. Rather strangely, the
Department states in its Draft Policy quoted in its written

submissions to this court that:
"Hitting a child is assault, but
previously, parents who hit their children had a special defence of
'reasonable chastisement'.
That defence is not part of South
African law anymore
. This puts hitting of children on the same
footing as hitting an adult." (my emphasis)
[59]
It is not clear what the legal basis is for the Department's view
that the defence is no longer part of our law. Unfortunately,
as the
Department did not appear before this court to make oral submissions,
this court was unable to pursue the matter with them.
However,
whatever the basis for the view is, it is clearly incorrect. Until
the Department has put in place legislation outlawing
the defence, or
unless the courts develop the common law to render it no longer
applicable in our law, the defence remains a part
of our law.
[60]
I turn now to consider the constitutional issue.
IS
THE REASONABLE CHASTISEMENT DEFENCE CONSTITUTIONALLY COMPATIBLE?
[61]
The authorities discussed earlier provide the necessary roadmap to
guide the process of considering whether the reasonable
chastisement
defence is compatible with our Constitution. It seems to me to be
clear that the starting point is the recognition
by the
Constitutional Court in
S v
M
that our Constitution
imagines children as their own constitutional beings. They hold
constitutional rights in their own respect,
not through their
parents. Children are entitled under the Constitution and legislation
like the
Children's Act to
require their parents to protect their
rights. If their parents fail in this regard, the state bears the
overarching obligation
to ensure that children's rights are
respected, protected and enforced.
[53]
[62]
As the Court stressed in
S v M,
what our Constitution requires
is a mind-set change, towards a child-focused and child-sensitive
model of child justice. The origins
of the reasonable chastisement
defence lie in our Roman and Roman-Dutch law. They are based on the
notion of the parental power
and the view that children owe a duty of
obedience to their parents. This has been described as follows:
"(the parental power) gives the
parents the right of demanding from their children due reverence and
obedience to their orders,
and also, in cases of improper behaviour,
to inflict such moderate chastisement as may tend to
improvement."
[54]
[63]
Over the years our courts have reiterated the parent-centered nature
of the defence. For example, in
Germani
v Hetf,
[55]
the Appellant Division held that:
"it is well-recognised that a
parent of a child, ...
is entitled
to use reasonable and
moderate force to procure the child's obedience to
his legitimate
directions and requests
''. (my emphasis)
The
existing case law and authorities are littered with reference to the
parental
right
to
use reasonable and moderate chastisement on their children.
[56]
Following from this, if a parent raises the defence to a charge of
assault, the onus lies on the State to prove that he or she
exceeded
the bounds of the defence and thus did not have the authority to
carry out what would otherwise be an unlawful assault.
[57]
[64]
The parental power, or rights based origins of the defence are
clearly at odds with the child-focused model of rights envisaged

under our Constitution. However, it would be too simplistic to
consider this on its own to be sufficient to condemn the defence
to
the constitutional litterbin. It is important to bear in mind that
there are aspects of the defence that implicitly at least
give some
recognition to the protection and wellbeing of the child.
[65]
FORSA point out in their submissions that parental discipline is an
important part of the parent's duty to ensure that the
child is
brought up in a socially acceptable manner. This forms part and
parcel of what the Constitution recognises to be the parental
care
which parents are obliged to provide.
[58]
It is also an important element of the duty on parents under the
Children's Act to
guide and direct the child's upbringing. Thus,
parental discipline is something that is aimed at ultimately inuring
to the benefit
of the child and contributing to his or her best
interests. FORSA submits that to place restrictions on the parental
power of discipline
by removing the reasonable chastisement defence
would not be in the best interests of the child.
[66]
In addition, it is also important to bear in mind that the defence of
reasonable chastisement does not permit untrammelled
levels of
physical punishment to be meted out to children. As FORSA points out,
the defence limits a parent to reasonable or moderate
levels of
physical discipline. FORSA submits that this should not be equated
with violence or physical abuse. Implicit in FORSA's
submissions is
the notion that the defence of reasonable chastisement permits, at
worst for the child, only minimal levels of physical
punishment.
Developing this notion further, the submission is that, when balanced
with the disciplinary benefits achieved, the
defence cannot be
regarded to constitute an unjustifiable breach of the child's rights.
[67]
In my view, there are a number of difficulties with this submission.
In the first place, as both counsel for the appellant
and the State
acknowledged in their submissions, the common law does not lay down
strict guidelines as to what constitutes reasonable
chastisement.
Snyman,
[59]
suggests that it is constituted by an occasional slap on the thigh or
the buttocks. However, in the old case of
R
v Janke
&
Janke,
[60]
the court noted that while a highly sensitive child may be seriously
affected by a whipping, the same punishment may be harmless
(and
hence entirely justified) for a more robust child.
[68]
The most the common law does is to identify factors that should be
taken into consideration in each case in order to determine
what is
reasonable. This is deeply problematic as it introduces a level of
arbitrariness to the infliction of physical punishment
on children.
In both
Williams
and
Christian Education
the
Constitutional Court identified the arbitrary nature of the
infliction of corporal punishment as being factors contributing
to
the constitutionality inquiry. In my view, the same applies to
physical chastisement administered in the home environment. Under
the
common law, it is for the parent to decide in the first instance on
the level of physical force his or her child deserves,
and can
withstand, as punishment. Many parents may behave, or believe they
are behaving, "reasonably" in this regard.
However, given
the levels of child abuse and domestic violence in our country, as
noted in numerous decisions, it is likely that
many a child is
subjected to levels of physical punishment that, regardless of their
parent's belief, they are unable to withstand
without harm to their
physical and/or emotional states. This element of arbitrariness,
which is inherent in the common law defence
of reasonable
chastisement is out of line with the child-centered model of rights
demanded by our Constitution.
[69]
There are further fundamental difficulties with the submissions made
by FORSA in support of the retention of the common-law
defence. The
Constitution is very explicit in its exposition of rights. It gives
protection from "
all
forms of violence", whether
from public "or
private
sources" (my emphasis) in
section 12(1)(c). It also protects the right to bodily and
psychological integrity in section 12(2).
This is a clear indication
that the same level of protection is to be afforded to those who are
victims of violence in the home
as to those who are the victims of
violence from public sources. In other words, if a child experiences
any
form of violence in the home from a parental source, that
child is entitled to the same protection from the State as she would
be
entitled to if the violence came from a non-parental source.
Similarly, it should make no difference whether a child's bodily
integrity
or psychological integrity is interfered with through
conduct on the part of a parent that, but for the defence, would be
an assault.
[70]
One of the obvious difficulties with the reasonable chastisement
defence in this regard is that it permits a parent to inflict
some
level of violence on a child, and to breach their right to bodily and
psychological integrity for disciplinary purposes. Even
if the level
of chastisement is adjudged to be "reasonable" under the
defence, physical chastisement inevitably involves
a measure of
violence. It undoubtedly also breaches the physical integrity of the
child. The offence of assault under the common
law is aimed at
protecting bodily integrity. Yet the reasonable chastisement defence
decrees that it is lawful for a parent to
breach that integrity. This
is clearly a violation of the rights guaranteed under section 12.
[71]
The same holds true for a child's right to dignity. Under the
Constitution a child enjoys the general right to dignity under

section 10. In addition, children enjoy special protection under
section 28(1)(d) to be protected from, among other things,
degradation.
Human dignity lies at the heart of this latter
protection.
[61]
In turn, the right to dignity is foundational to our constitutional
dispensation. It is one of the factors expressly identified
in the
Constitution to be taken into account in the process of determining
whether a limitation of a right is justified under section
36.
[72]
The child's right to dignity is implicated in the present inquiry in
two related respects. In the first place, it seems to
me that where
conduct breaches a child's right to physical integrity, it must
inevitably involve a measure of degradation or loss
of dignity for
the child. At the very least it has the potential to do so. So, where
a child is subjected to conduct that would
otherwise be an assault,
but for the reasonable chastisement defence, there is an inherent
breach of that child's dignity. This
brings into play the second
respect in which the child's right to dignity is impaired. If an
adult is subjected to an assault,
the law will take its course to
protect his or her rights. However, in the case of a child, the
defence of reasonable chastisement
permits (and obliges) the State to
treat him or her with a lesser level of concern and gives the State
less power to protect her
or his rights. This is inherently degrading
for children who are effectively treated as second-class citizens by
the law in this
regard.
[73]
The effect of the defence is fundamentally to undermine the critical
concept of children having their own dignity, as noted
in
S v M.
Contrary to this constitutional principle, it subsumes the
child's right to dignity under that of their parents. It assumes that

in meting out reasonable chastisement the parent is acting in the
child's best interests, and that the parent knows what is best
for
the child. However, this assumption is made without any regard to the
child's own, self-standing right to dignity, or to the
child's right
to require the State to protect it.
[74]
My analysis of the reasonable chastisement defence in relation to the
child's right to dignity points to a further constitutional

deficiency in the defence. The defence treats child victims of
assault by their parents differently to adult victims of assault.
I
earlier referred to the definition of assault under the common law.
In general, the offence
[62]
does not require unreasonable levels of violence to be perpetrated
against the victim. All it requires is the unlawful and intentional

application of force to the person of another. Pushing, or slaps on
the buttocks would fall within the definition, as would striking

someone with a slipper or other object, regardless of how benign the
instrument might appear to be. However, where a parent carries
out
such conduct for disciplinary purposes, our law accepts that the
parent may claim to have been acting lawfully. In that case,
the
State bears the onus of proving that the parent exceeded his or her
lawful bounds of authority to discipline his or her child.
[75]
Children are entitled under section 9(1) of the Constitution to equal
protection of the law. They also have the right under
section 9(3)
not to be discriminated against because of their age. The reasonable
chastisement defence does not give children equal
protection under
the law in that it does not protect children from assault in
circumstances where adults who are subjected to the
same level of
force are protected.
[76]
Moreover, this is not a rational differentiation that would fall
within the bounds of different treatment permissible under
section 9
of the Constitution. The defence legitimises the infliction of some
level of violence, and breaches of bodily integrity,
by parents
against their children. This is antithetical to the constitutional
right prioritising the best interests of the child.
It is also
undermines the special duty owned by the State to protect children
from all forms of violence and degradation, and to
protect their best
interests. The existence of the defence obstructs the state in its
duty to prosecute parents who assault their
children. Its effect is
to render more vulnerable a group of rights-holders that has been
singled out by the Constitution to be
deserving of special
protection, and whose best interests are expressed to be of paramount
importance. For these reasons, I agree
with the submissions made by
the CCL
amici
to the effect that the reasonable chastisement
defence breaches the rights of children under section 9(1) and 9(3)
of the Constitution.
[77]
Is there any basis upon which it can be found that these
infringements of children's rights are justifiable under section 36

of the Constitution? That section provides that:
"The rights in the Bill of Rights
may be limited only in terms of a law of general application to the
extent that the limitation
is reasonable and justifiable in an open
and democratic society based on human dignity, equality and freedom,
taking into account
all relevant factors, including-
(a)
the nature of the right;
(b)
the importance of the purpose of the limitation;
(c)
the nature and extent of the limitation;
(d)
the relation between the limitation and its purpose; and
(e)
less restrictive means to achieve the purpose".
[78]
As the Court held in
Williams,
limitations can only pass
constitutional muster if a court concludes that, considering the
nature and importance of the right and
the extent to which it is
limited, such limitation is justified in relation to the purpose,
importance and effect of the provision
which results in its
limitation, taking into account the availability of less restrictive
means to achieve this purpose.
[79]
I have already outlined why, in my view, the rights in question are
very important. In short, they involve the rights of children
to be
protected, equally with adults, from assaults that constitute an
affront to their dignity and bodily integrity. They are
particularly
important rights in the context of the high levels of child abuse and
violence that pervade our society. It is important
that the State is
empowered, rather than shackled, by the arsenal at its disposal to
investigate, prevent and protect children
from harmful and
potentially harmful situations. The defence creates an "off-limits"
zone for State involvement, which
is not conducive to facilitating a
child-focused justice and protection system for children. The
existence of the defence, which
legitimises assault only in relation
to children, is fundamentally at odds with the best interests of the
child.
[80]
The limitation has its origins in a pre-constitutional era, when
children were not viewed as being the holders of their own
set of
rights. Discipline remains an important part of the responsibilities
of parents. No-one is suggesting that parents should
not be permitted
to discipline their children. However, it is worth repeating a point
I have made before: even reasonable chastisement
may fall within the
bounds of what our law defines to be an assault. Thus, the question
is whether the severe limitations imposed
by the defence on the
rights of children can be justified by the need to continue to permit
parents to assault their children for
disciplinary purposes.
[81]
I can find no justifiable reason to permit this. In saying so I take
into account the fears expressed by FORSA, viz. that in
doing away
with the defence many well-meaning parents who genuinely believe they
are doing their best for their children may become
criminalised, as
they will now be vulnerable to criminal convictions for assault.
FORSA also fear that these parents may end up
losing their children.
However, these are fears that are out of step with the underlying
objectives of the
Children's Act, which
is to promote positive
parenting and positive discipline, rather than to criminalise errant
parental behaviour. I detailed earlier
how the Act makes provision
for the diversion of cases to the children's court, which has broad
powers to make orders to facilitate
positive parenting in families.
In the draft policy discussed on behalf of the Minister in the
Department of Social Development's
submissions to this court, the
same point is made: the Department does not envisage that doing away
with the reasonable chastisement
defence will lead to the
over-criminalisation of parenting behaviours. Instead, the draft
policy states that:
"as far as possible, parents
should not be criminalised and, if reported for inappropriate
punishment (including corporal punishment),
should be referred to
prevention and early intervention services."
As
I have already indicated, these intervention and prevention services
are already in place under the Act. In line with these legislative

objectives, it seems clear that criminal sanctions are not intended
to be imposed willy-nilly in respect of any parent who chastises

their child.
[82]
FORSA relies on the right to freedom of religion and belief under
section 15
, and on the rights of religious communities under
section
31
to advocate for the retention of the defence of reasonable
chastisement. FORSA submits that it would be unconscionable and
unconstitutional
to undermine these rights by doing away with the
defence. They submit that this would place many believers who believe
that they
are acting in the best interests of the children with the
choice of obeying the law or obeying the reasonable tenets of their
faith
and facing criminal sanction.
[83]
Unlike the applicants in
Christian Education,
FORSA does not
submit that the common law defence ought to be retained specifically
to provide for a religious exemption. Had they
done so, this might
have provided a stronger basis to argue against the wholesale doing
away with the defence. As things stand,
it is necessary to balance
any limitations on the right to religious freedom involved in doing
away with the defence against the
limitations on the rights of the
child in retaining it.
[84]
I will assume, as the court did in
Christian Education,
that
doing away with the defence may involve some limitation of rights
under
section 15
, and perhaps
section 31
(although I make no decision
in either regard). Even if this were the case, it seems to me that
these limitations are not such
as to warrant retaining a defence that
fundamentally undermines the rights of children. As I indicated
earlier, it is accepted
in our jurisprudence that children's rights
are not subordinated to the religious views of their parents. The
removal of the defence
will not prevent religious believers from
disciplining their children. It is so that they may have to consider
changing their mode
of discipline, but in view of the importance of
the principle of the best interests of the child, this is a
justifiable limitation
on the rights of parents. In addition, to
reiterate a point I made earlier, the removal of the defence will not
open up religious
parents to a greater threat of criminalisation and
removal of their children. This is a case where I am satisfied that
it is permissible
to require religious parents who believe in
corporal punishment to be expected to obey the secular laws, rather
than permitting
them to place their religious beliefs above the best
interests of their children.
[85]
For all of these reasons, I find that the limitations imposed by the
reasonable chastisement defence are not constitutionally
justifiable
under
section 36.
It is time for our country to march in step with
its international obligations under the CRC by recognising that the
reasonable
chastisement defence is no longer legally acceptable under
our constitutional dispensation. In doing so we will hardly be at the

forefront of legal developments in the international community.
Almost half of African states have either committed to abolishing

corporal punishment in full (i.e. including in the home) or have
expressed a clear commitment to doing so.
[63]
South Africa is one of those that has made the commitment although,
as I indicated earlier, the process of doing so through legislation

is not well advanced. The courts have a duty to take the necessary
steps to develop the common law where it infringes constitutional

rights. In my view, that duty will be served in this case by an order
declaring, with prospective effect, that the common-law defence
of
reasonable chastisement is no longer applicable in our law.
[86]
I accordingly propose an order in these terms at the end of this
judgment.
THE
MERITS OF THE APPEAL
[87]
I dealt earlier with the pertinent details of the appellants appeal
against his conviction on the charge of assault in relation
to his
son, M. The essential question is whether the trial court was correct
in finding that the State had proved that the appellant
had exceeded
the bounds of reasonable chastisement when he disciplined M for
allegedly watching pornography on the iPad.
[88]
Although M denied in court that he had been watching pornography, the
trial court accepted the appellant's version in this
regard and found
that in all probability M had been doing so. The relevance of this
finding is that it points to M not being truthful
in his testimony in
all respects. The appellant submits on appeal that the trial court
was faced with the evidence of a single
child witness on the events
that took place during the alleged assault. The court ought to have
approached M's evidence with due
caution, and, so the appellant
submits, the fact that M was untruthful about the pornography means
that his evidence was not satisfactory
in all material respects.
Accordingly, the trial court ought properly to have rejected M's
version of events. The appellant also
pointed out various aspects of
M's evidence that differed from that of the other witnesses.
[89]
There is some commonalilty between the versions of M and the
appellant. It is common cause that the appellant accused M of

watching pornography and of circumventing the internet password to
access the internet. The appellant warned M that if he did not
tell
the truth he would give him a hiding. There are some differences in
their versions as to how many warnings the appellant gave
M before he
hit him, but those differences are not material. What is common cause
is that the appellant applied physical force
to M more than once.
After the first warning he applied physical force, and then he gave M
a chance once again to come clean and
admit what he had done. When M
did not do so, he applied physical force to M again. It is common
cause that this pattern repeated
itself a number of times over a
period of over an hour, with the appellant warning M to confess and
when he refused to do so, applying
force to M again.
[90]
Where M and the appellant's version differ materially is on the
nature of the physical force applied to M. M's version was
that his
father punched him with his fist and kicked him with his bare feet on
the thighs and also on his chest. He denied the
appellant's version,
which is that he slapped M with his flat hand on his buttocks. The
appellant testified that he lifted up M's
legs and "gave him a
shot" on the buttocks. His version was that he did hit M on the
thighs but that this was unintentional
and it occurred when M twisted
away from him as he tried to hit him on the buttocks on one occasion.
M testified that he had been
given hidings before by his father, but
that he had reported it to the police this time because his father
had
"beaten him up".
[91]
The trial court was mindful of the cautionary rule to be applied to M
as a single witness as to what had transpired between
him and his
father. It noted that M's untruthfulness as regards the pornography
should not be overemphasised or regarded as an
indication that he was
an untruthful witness on the whole. I agree with the trial court's
assessment in this regard. As was stated
in the judgment of the trial
court, if a 13-year old boy is caught watching pornography by his
father it is likely that through
embarrassment, the child will deny
it. I accordingly agree with the trial court's finding that being
untruthful in this regard
did not affect the credibility of M as a
witness.
[92]
As the trial court stated, M's version of events, and particularly
his version of the nature of the physical force applied
by his
father, was corroborated by Dr van der Poel, who examined M some days
after the incident. At that stage, M still had bruises
on his thighs
which, according to Dr Poel's evidence, were not injuries inflicted
with a flat hand. Although Dr Poel did not exclude
the possibility
that a soccer ball could have caused bruises of this nature, in my
view, on the evidence it is highly unlikely
that this was the case
here. M was adamant under cross-examination that the ball that he had
played with while on holiday before
the incident was a soft soccer
ball, not a hard one, and that he had not been injured from the
soccer. He was not shaken under
cross­ examination on this score.
Reading the record of his evidence as a whole confirms the trial
court's assessment that
M was a good witness, and there is no reason
to fault the court's assessment that he made a good impression. On
the appellant's
own version, he admitted that at least one of his
"slaps"
connected with M's thigh. It is
overwhelmingly likely that it was the physical force that the
appellant applied rather than a soccer
ball that caused the bruising
to M's thighs.
[93]
In my view, the trial court correctly rejected the appellant's
version that he only smacked M with a flat hand on his buttocks,
and
correctly accepted M's version.
[94]
I am also of the view that the trial court was correct in its finding
that the appellant had exceeded the bounds of moderate
or reasonable
chastisement in acting as he did. He certainly did more than deliver
a few slaps. Even if one were to accept that
moderate chastisement
can exceed an occasional slap on the buttocks, what the appellant did
fell well outside of those bounds.
He repeatedly punched and kicked M
over a period of time. At one point M even fell on the floor from the
bed where he had been
sitting. M's bruising was still visible some
days later. This was, without any doubt at all, an assault on M.
[95]
For these reasons, I find that there is no merit in the appeal
against the charge of assault in respect of M.
[96]
As regards the charge of assault against Mrs G, the appellant pleaded
self­ defence. It is common cause that the incident
involving the
second charge of assault occurred later on the same day as the first
assault on M. The appellant admits that he pushed
Mrs G during an
altercation. He also admits that what triggered the incident was his
suspicion that Mrs G was having an affair.
He took possession of her
cell phone at home and was checking her messages for evidence of an
affair when she walked into the room.
While Mrs G denies that she was
having an affair, her version is consistent with the appellants to
the extent that what transpired
between them started when he was
checking her cell phone. Mrs G was upset by this and asked him what
he was doing. The appellant's
version is that when he told her that
he was checking for messages Mrs G was furious. She screamed at him
and attacked him by grabbing
his beard and punching him on his chest,
and by pulling on and scratching his ears. According to the
appellant, this was an extremely
violent assault. He reacted by
trying to keep Mrs G at bay. He pushed her on the chest away from him
onto a bed. The children came
into the room and he told them to
leave. Thereafter, Mrs G punched him in the nose. The appellant
testified that he suffered injuries
as a result of Mrs G's attack on
him. His nose and his ears were bleeding. He consulted a doctor a
couple of days later who completed
a medical report detailing certain
injuries.
[97]
Mrs G's version was that when the appellant took her phone she asked
him what he was doing and he said he was deleting things
from it. She
tried to take her phone from him, but he kicked her and pushed her on
the bed. This was in the master bedroom. She
was not visibly injured
by the kick. She started screaming and the children ran into the
room. M was one of the children who came
into the room. M started
crying. The appellant took the phone again and when Mrs G tried to
take it from him he lifted her and
pushed her against the cupboard.
He was swearing at her during this incident. She grabbed onto the
appellant's ear as she was falling
down. She phoned her father to
report what had happened. Her father later spoke to the appellant on
the phone. That night she and
the children slept in one of the
children's bedrooms. According to Mrs G the appellant came into the
room and apologised for his
behaviour. Mrs G testified that she did
not consult a doctor after the attack on her.
[98]
It is common cause that Mrs G and the children left the matrimonial
home a day or two after these incidents and that they are
in the
process of divorcing.
[99]
The appellant laid an assault charge against Mrs G. He was advised by
the police that he had to undergo a medical examination.
Dr Futcher,
who examined the appellant, gave evidence at the trial. He testified
that he had noted an abrasion or scratching on
the appellant's
collarbone, and fine, speckled bruising below the collar bone, as
well as abrasions to his ears. He also had a
contusion (tenderness
but no visible bruising) to the nose. The injuries were relatively
superficial.
[100]
M testified that he saw his father punch his mother with a fist in
the chest and that she had gone backwards into the cupboard.
He also
saw his mother pulling his father's ear. He denied that Mrs G had
started the fight. According to him, his father had punched
his
mother first.
[101]
On the appellant's own admission he pushed Mrs G onto the bed.
However, on his version, Mrs G was the aggressor who committed
a very
aggressive and violent assault on him. By pushing her he was doing no
more than acting with the necessary self-defence to
ward off her
attack.
[102]
The trial court rejected the appellant's version. The appellant
contends that it erred in doing so. He points to certain aspects
of
the evidence for the State that he says are contradictory. For
example, he points out the Mrs G testified that the appellant
lifted
and pushed her against the cupboard, and pressed her there, whereas M
testified that the appellant punched her in the chest
so that she
fell against the cupboard. He also points out that Mrs G only
referred to her grabbing the appellant's ear in cross-examination,

and not in his evidence in chief.
[103]
In order to determine whether the trial court erred in rejecting the
appellant's version, it is necessary to consider the
evidence as a
whole. At the very least, the appellant pushed Mrs G onto the bed.
That in itself is conduct that may, depending
on the lawfulness and
intention involved, constitute an assault. The question then is
whether the appellant was acting in self­
defence or not. For his
defence to succeed, his version that Mrs G was the aggressor of a
violent assault on him must be accepted.
I cannot fault the trial
court for its finding in this regard. The appellant suspected his
wife of having an affair. In fact, in
his evidence he remained
adamant that she was having an affair. For this reason, he went into
her private cell phone. It is reasonable
to assume that he was not in
a happy state of mind at this time. Furthermore, he had already had
an altercation with his son earlier
in the day when he felt that his
position as father and head of the family was being thwarted by M's
conduct. It is difficult to
avoid the inference that he must have
been in a state of some agitation when Mrs G walked into the room and
found him with her
phone. In these circumstances, it is highly
unlikely, in my view, that it was Mrs G, rather than the appellant
who was the aggressor.
It is also highly unlikely that Mrs G
perpetrated a very violent and vicious attack on the appellant, as he
claims. As the magistrate
noted, Mrs G is not a big woman, weighing
only between 40 and 50kgs. The injuries noted by the doctor were
superficial abrasions
and contusions. They are not the kind of
injuries one would expect to find on the victim of a violent or
vicious attack.
[104]
In addition, both Mrs G and Mtestified that the appellant had pushed
Mrs G into the cupboard. M did not talk about him pushing
her onto
the bed. That makes sense as it seems to be common cause that the
children entered the room after the incident started,
and after he
had pushed her onto the bed. If the incident had involved only a push
onto the bed, as the appellant contends, then
both Mrs G and M would
have to have completely made up the story that he pushed her against
the cupboard. There is further evidence
to corroborate Mrs G's
version. She phoned her father after the incident, who then spoke to
the appellant. She and the children
all slept in one room that night,
away from the appellant, and they left the home two days later. It is
highly unlikely that Mrs
G would have gone to these lengths to get
away from the appellant if she was the aggressor in an assault and
all he had done was
to push her away from him in an act of
self-defence.
[105]
For all of these reasons I am of the view that the trial court did
not err in rejecting the appellant's version as regards
the second
assault. While there was clearly an incident involving physical
contact between the two of them, and which may have
resulted in the
appellant's superficial injuries, I find that the trial court was
correct in rejecting, as not being reasonably
possibly true, the
appellant's version that he was the victim of an assault who acted in
self­ defence. I accordingly find
that the trial court cannot be
faulted for finding that the State had proved its case of assault
against the appellant in respect
of count 2.
[106]
In my view, therefore, there is no merit in the appeal on the second
charge either.
ORDERS
[107]
I propose the following orders:
Order
in respect of the constitutional issue
1. The common law defence of
reasonable chastisement is unconstitutional and no longer applies in
our law.
2. The development of the common law
referred to in paragraph 1 above is only applicable to conduct that
takes place after the date
of judgment.
Order
in respect of the merits of the appeal.
1. The appellant's appeals in respect
of both counts 1 and 2 are dismissed.
R
M KEIGHTLEY
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
I
agree, and it is so ordered
E
FRANCIS
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
Date
Heard: 21 August 2017
Date
of Judgment: 19 October 2017
Counsel
for the Appellant: Adv. R Gissing
Instructed
by: Y Bhamjee Attorneys
Counsel
for State: Adv. PP Ranchhod
Instructed
by: The State Attorney
Counsel
for Amicus 1 - 3: Adv. Prof A Skelton
Counsel
for Amicus 4: Adv. R Willis
[1]
Record, pg 112, lines 10-14
[2]
OPP, Transvaal v Minister of Justice
2009 (2) SA 222
(CC) at [40]
[3]
Above, [41]
[4]
2007 (5) SA 30
(CC) at [55]
[5]
Above at [56]
[6]
2017 (3) SA 152 (SCA)
[7]
Above, [24]
[8]
Op cit
[9]
At [22]
[10]
In terms of
section 8(1)
, which states that the Bill of Rights binds
the judiciary.
[11]
Barkhuizen v Napier
[2007] ZACC 5
at
[35]
[12]
Thebus and Another v
S 2003
(6) SA 505 (CC)
[13]
Under
section 28
, and in addition to the rights they enjoy in common
with everyone else.
[14]
Milton South African Criminal Law and Procedure II Common Law Crimes
(3e, 1996) at page 406
[15]
See CR Snyman Criminal Law (5th ed) (LexisNexis) p141-2; S v
Lekgathe
1982 (3) SA 104
(B) at 109A
[16]
Van Heerden et al, Boberg's Law of Persons and the Family (2nd ed)
(Juta) p668-9; Snyman, op cit; Germani v Hert and Another
1975 (4)
SA 887(A).
[17]
South African Criminal Law and Procedure (3rd ed) (Juta) at p117
[18]
Rex v Janke and Janke 1913 TPD 382
[19]
Lekgathe, above, at 1098-C
[20]
Dawood & Another v Minister of Home Affairs & Others;
Shalabi & Another v Minister of Home Affairs & Others;

Thomas & Another v Minister of Home Affairs & Others
[2000] ZACC 8
;
2000
(3) SA 936
(CC) at
[28]
- [33]
[21]
At [31]
[22]
1995 (3) SA 332 (CC)
[23]
At [50]
[24]
At [52]
[25]
At [47]
[26]
2000 (4) SA 757 (CC)
[27]
At [48]
[28]
At [40]
[29]
At [41]
[30]
At [43]
[31]
2008 (3) SA 232 (CC)
[32]
At [16]
[33]
At [18]-[19]
[34]
Sections 2(b)
; (c) & (g)
[35]
Section 1(c)
, under the definition of "care"
[36]
Section 1(d)
, under the definition of "care"
[37]
Section 1(g)
, under the definition of "care"
[38]
Section 1(e)
, under the definition of "care"
[39]
Section 1
[40]
Section 150
[41]
Section 46(g)
, see also
section 46(h)
, dealing with child protection
orders, and what these may entail.
[42]
Section 1
[43]
Article 19(1)
[44]
Article 28(2)
[45]
Article 37
[46]
General Comment No 8: The Right of the Child to Protection from
Corporal
Punishment
and other Cruel or Degrading Forms of Punishment (article 19, 29(2)
and 37 inter alia; 15 May - 2 June 2006, Paragraphs
7, 12 and 18
[47]
General Comment No 13 (2011): The Right of the Child to Freedom from
all forms of violence; 18 April 2011
[48]
Paragraph 3
[49]
Paragraph 14
[50]
Paragraph 17
[51]
27 October 2016, CRCIC/ZAF/C0/2, Concluding Observations on second
report
[52]
The African Committee of Experts on the Rights and Welfare of the
Child
Concluding
recommendations by the African Committee of Experts on the Rights
and Welfare of the Child on the Republic of South
Africa Initial
Report on the Status of Implementation of the African Charter on the
Rights and Welfare of the Child
at para 35
[53]
Under section 7(2) of the Constitution
[54]
Van der Linden, 1.4.1, Juta's translation, cited in Van Heerden et
al, Boberg's Law of Persons and the Family (2nd ed) at p668
[55]
1975 (4) SA 887
(AD) at 9028
[56]
See in this regard the very full and helpful discussion of the
authorities in Van Heerden at al, Boberg's Law of Persons and
the
Family, above, p668-680
[57]
Milton South African Criminal Law and Procedure II Common Law Crimes
at 414, cited in Boberg, above, p670
[58]
Section 28(1)(b)
[59]
Above, at p142
[60]
Above, at 386
[61]
Williams, above, at [35]
[62]
I do not refer here to the offence of assault with intent to do
grievous bodily harm.
[63]
Kenya, South Sudan, Tunisia, Benin, Cabo Verde, the Republic of
Congo and Togo have abolished it, while the following states
have
committed to doing so: Angola, Comoros, Mauritius, Mozambique,
Namibia, Rwanda, Seychelles, South Africa, Uganda, Zambia,
Zimbabwe,
Algeria, Burkina Faso, Guinea Bissau, Niger, Sao Tome and Principe,
Sierra Leone.