The South African spanking case
S vs YG was a sad and all too common criminal case in the Regional Court, Johannesburg in 2016, and would, in the ordinary course, have gone unnoticed by the public; but it became a cause célèbre – due to the involvement of public interest groups.
A father was charged with assault (the unlawful and intentional application of force to the person of another) of his 13-year old son. The father caught the son sitting on his parents’ bed in their bedroom using one of the family’s iPads to watch pornographic material. The son denied guilt, and the father insisted that he should tell him the truth. When the repeated his denial, the father punched and kicked him. This pattern repeated itself a number of times.
The father admitted the intentional application of force, but relied on the specific common law 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. He bolstered the reasonable corporal punishment argument with the fact that they were a Muslim family, and that the son knew that pornography was strictly forbidden.
The Magistrate held that the father had exceeded the bounds of reasonable chastisement and found guilty him guilty. The Magistrate postponed the passing of sentence against the father for a period of five years, and granted the father leave to appeal against the conviction.
That appeal was heard in the Johannesburg High Court in 2017. The appeal failed; and in addition, the High Court held that: “The common law defence of reasonable chastisement is unconstitutional and no longer applies in our law.” One of the religious public interest groups applied for direct access to appeal to the Constitutional Court against the abolishment of the defence of reasonable chastisement.
The Constitutional Court delivered a unanimous judgment (10 Judges) on 18 September 2019, dismissing the application for leave to appeal, primarily on the constitutional values of (1) human dignity and (2) the right to be free from all forms of violence from either public or private sources:
The unreasonable and immoderate chastisement which constitutes assault proper, maltreatment or child abuse has always been a criminal offence which all sound-minded parents agree must be punishable. It is an aberration that has inexplicably been left to permeate society with consequences that somehow militate against or undermine the retention of moderate and reasonable chastisement.
As to the consequences of the judgment, the Constitutional Court held:
The invalidation of the defence of moderate and reasonable chastisement … thus means that the chastisement aspect of [parent’s] religiously or culturally ordained way of raising, guiding and disciplining their children is no longer available to them. To discipline them in terms of the prescripts of their faith or culture would expose them to criminal prosecution, possible conviction and possible imprisonment. And the only safety valve available to them is the … de minimis rule (the law does not concern itself with trifles). Although this rule has acute shortcomings in terms of its inability to prevent the abolition of the defence from possibly imposing a strain on the family structure by allowing parents to be prosecuted for even the minutest of well-intentioned infractions, it is at least of some benefit in that it could save parents from being needlessly imprisoned. It does, barring diversion, not necessarily exclude the unlawfulness of the chastisement and a criminal conviction of assault, but only allows the assault to go unpunished on account of its triviality.
The Constitutional Court did not mention any foreign case law or the numerous relevant international agreements and treaties to which South Africa is a party, and did not have the benefit of any expert evidence. This case (not the judgment) is another example of the limitations inherent in the judiciary being required to function as a proxy for the suboptimal functioning legislator.
In Canada, in Canadian Foundation for Children, Youth and the Law v Canada (AG) in 2004, their apex court, in a six to three Judges majority, upheld the defence of reasonable chastisement. That Court considered essentially the same constitutional values as in the South African case, but concluded:
Children need to be protected from abusive treatment. They are vulnerable members of Canadian society and Parliament and the Executive act admirably when they shield children from psychological and physical harm. In so acting, the government responds to the critical need of all children for a safe environment. Yet this is not the only need of children. Children also depend on parents and teachers for guidance and discipline, to protect them from harm and to promote their healthy development within society. A stable and secure family and school setting is essential to this growth process.