Corporal punishment is the unlawful intentional act of causing harm by physically inflicting punishment on the body of an offender or severely criticising the offender. There is a distinction in common-law between corporal punishment in the public sphere and in the private sphere.
Corporal punishment on children in the private sphere is administered by parents. It is legally accepted in South Africa, provided that the requirements are met.
The public sphere’s position is much different in the sense that the government along with all schools have no authority to physically discipline school children anymore. Authority to exercise corporal punishment often leads to abuse of power, child abuse and feelings of superiority. All of the above mentioned factors will contribute to the future for a common-law defence of reasonable disciplinary chastisement in South African law
2 General implications of corporal punishment
In most cases, punishment is given to clarify the authority and status over the offender. Irrespective of the harm the child or the offender caused, physically punishing the offender violates many of that person’s fundamental human rights. Punishment is given in the form of slapping, whipping, verbally reprimanding or violently acting towards the child or the offender which contributes to the current violence in South Africa. These punishments violate constitutional rights. Consequently, section 10 of the Constitution of the Republic of South Africa, 1996 (the ‘Constitution’) provides that everyone has the right to have their dignity respected and protected. Section 12 of the Constitution states that all citizens have: “The right to freedom and security of the person” and section 12(d): “The right not to be treated or punished in a cruel, inhumane or degrading way”. Violence is never the solution, it only does good temporarily, yet the scars it leaves behind, are permanent.
3 Corporal punishment in the private sphere
Parents have the authority to physically punish their children as South Africa’s common-law consists of a ground of justification for unlawfulness, known as corporal punishment. Rex v Janke & Janke (‘Janke’) clarifies the rights parents have when corporally punishing their children with the intention of teaching them a valuable lesson. The requirements for this defence are for it to be moderate and reasonable. The reasonable requirement refers to the child having to wrongfully do something or threaten to do so. The moderate requirement states that the punishment must be in proportion to the age, build, health and gender of the child. Corporal punishment by parental authority can only succeed as a defence if it meets these requirements, as well as having the intention to discipline or educate the child.
3 1 Arguments against parent’s right of chastisement
The harm inflicted on a child when punishing him/her, violates the human rights of the child, which states that every child should be protected from...