The Constitutionality of the ‘Reasonable Chastisement’ Defence
Recently, the controversial issue of the defence of reasonable chastisement arose before the High Court in the matter of YG v S 2018 (1) SACR 64 (GJ). Briefly, the appellant in this matter was found guilty of assaulting his 13-year old son who was allegedly watching pornographic material on his family’s iPad. The appellants defence at trial, was simply that as a parent, he had a right to chastise his son by administering corporal punishment for his son’s indiscipline.
This defence is known as the ‘reasonable chastisement defence’, a recognised common law rule that provides parents with a legal justification for applying physical force in order to discipline their children. However, this defence can only operate if such force can be categorised as being ‘moderate’ or ‘reasonable’.
Essentially, the constitutionality of this defence was profoundly condemned by Judge Keightly for numerous reasons. This article will focus one of the constitutional deficiencies raised by the learned Judge.
The common law crime of assault against an adult, generally, involves the unlawful and intentional application of force on another. This offence requires no unreasonable levels of force to be applied in order for it to be criminal in nature. It simply requires unlawful and intentional conduct. Conversely, in respect of force being applied by parents towards a child, the defence of reasonable chastisement necessitates that the application of force needs to be of an unreasonable degree in order for it to be criminal in nature.
Evidently, the law treats a general assault victim more favourably than it does a child being assaulted by its parents in a disciplinary context. This defence effectively places an undue obstacle in the way of an already vulnerable group in society (children), from being afforded full and equal protection by the law.
Section 9 (1) of the Constitution provides that children are to be afforded equal protection of the law. Further, section 9 (3) of the Constitution prohibits the discrimination against children on the basis of their age. Lastly, this defence stands in stark contrast to the notion that the best interests of the child is of paramount importance under section 9 of the Children’s Act.
To conclude, the above mentioned case set the precedent for the de-legitimisation of the reasonable chastisement defence, the effect of which is that prospectively, the reasonable chastisement defence does not form part of South African Law.
