The administration of corporal punishment to children is an archaic practice that has become obsolete, not only in the post-modern era, but within the current constitutional dispensation of South Africa. The Constitution seeks to protect the right to human dignity, bodily integrity, equality, freedom and security of all South African citizens. The administration of corporal punishment on any person clearly would amount to a violation of these fundamental constitutional values, which begs the question as to why corporal punishment to children is permitted. Corporal punishment in South African public life was officially abolished in 1997 by the commencement of the South African Schools Act 84 of 1996 (SA Schools Act), the Correctional Services Second Amendment Act 79 of 1996 and the Abolition of Corporal Punishment Act 33 of 1997. The catalyst for this change in position through legislation was the case of S v Williams in 1995, where the court was called upon to judge on the administration of corporal punishment as a punishment for a crime. The Constitutional Court declared it unconstitutional to administer corporal punishment as the human rights to bodily integrity, human dignity and equality were infringed. This essay will strive to evaluate the future of the common-law defence of reasonable chastisement in light of the influence the Constitution may have for further development
2. Nature of the defence
Section 10 of the SA Schools Act was the provision under review in the case of Christian Education South Africa (SA) v Minister of Education. This provision stipulated that no person may administer corporal punishment at a school to a learner, applicable to both State funded and private schools. The court rejected the appellants claim, stating that even if it were assumed that the provision in the Act limited parents’ religious rights, it was a reasonable and justifiable limit in an open and democratic society based on human dignity, freedom and equality. With regard to corporal punishment in private homes, the court held that even if teachers were unable to administer corporal punishment in the parents name the Act did not deprive parents of their general right and capacity to bring up their children according to their Christian beliefs.
3. The future of the common-law defence
The courts ensure to take into consideration all the relevant factors in context when making a decision. In S v JB , reliance on this defence was not successful. On the evidence provided by the complainant and others, the court found that there was no reason for the accused to chastise the complainant as she did not deserve it. The future of this defence currently seems to hang in the balance between the traditional ideals of parental authority – represented by the common law defence – and the human rights of children as defined and protected by the Constitution. In S v Kunene and Another court was tempted to speak on the constitutionality of...