Authored By: Siphelele Nyovane
University of Fort Hare
ABSTRACT
Historically rooted in the apartheid-era legal framework, corporal punishment was widely endorsed and practiced across judicial, educational, and domestic settings. The transition to constitutional democracy in 1993 was articulated with the enactment of the Interim Constitution, marking a shift towards the recognition and protection of human rights, as exemplified by the Constitutional Court’s seminal judgment in S v Williams 1995 (3) SA 632 (CC), where section 294 of the Criminal Procedure Act1 was declared inconsistent with the Constitution, and judicial corporal punishment was regarded as unconstitutional.2 This judicial precedent was further consolidated in Christian Education South Africa v Minister of Education 2000 (4) SA 757 (CC), where the Court upheld the statutory ban on corporal punishment in schools, rejecting religious freedom arguments in favour of the constitutional rights to dignity, equality, and protection from cruel, inhuman, or degrading treatment. The court did not find any violation of freedom of religion and upheld the ban on corporal punishment in schools as lawful. And thus dismissed the Appellant’s appeal with no cost.3
The legal culmination of these developments is reflected in the decision of Freedom of Religion South Africa v Minister of Justice and Constitutional Development and Others (CCT320/17) [2019] ZACC 344, wherein the Constitutional Court declared the common law defence of reasonable chastisement to be inconsistent with the Constitution and thus invalid. This judgment constitutes a significant advancement in the protection of children’s rights, effectively abolishing all forms of corporal punishment within the home. Moreover, it affirms South Africa’s commitment to its international obligations under instruments such as the United Nations Convention on the Rights of the Child and the African Charter on the Rights and Welfare of the Child.
Key Words: Corporal punishment, Common law defence, reasonable chastisement, Human rights.
INTODUCTION
The international community has increasingly condemned corporal punishment as a violation of children’s rights, as reflected in international human rights instruments such as the United Nations Convention on the Rights of the Child (UNCRC)5. The Convention defines corporal punishment as any form of physical force intended to cause pain or discomfort, regardless of its severity. This stance is reinforced by General Comment No. 8 of the UN Committee on the Rights of the Child6, which highlights the harmful physical and psychological effects of corporal punishment and outlines the obligations of States Parties to prohibit and eliminate all forms of such violence.
The General Comment establishes a comprehensive framework for understanding corporal punishment as a violation of fundamental human rights, requiring states to adopt legislative, administrative, and educational measures to ensure children’s protection. In South Africa, the child protection framework is grounded in both domestic and international legal obligations. The Constitution of the Republic of South Africa enshrines the principle that the best interests of the child are of paramount importance in every matter concerning the child.7Internationally, South Africa is a State Party to the UNCRC, which mandates the protection of children from all forms of abuse, neglect, and exploitation. Additionally, the African Charter on the Rights and Welfare of the Child8complements these protections by emphasizing the need for humane and dignified treatment of children, particularly in disciplinary contexts.
2 The legal framework of corporal punishment in South Africa prior 1996.
Before 1994, corporal punishment was widely used as a primary method of maintaining discipline in South African schools. It was deeply embedded in the educational system and perceived by many teachers and school authorities as a necessary and effective means of controlling learner behaviour and reinforcing classroom authority. This practice reflected broader societal norms of the time, where physical discipline was considered both acceptable and essential in child-rearing and education. The use of corporal punishment was institutionalised and supported by official education policies until democratic reforms began to challenge its legitimacy and ethical implications. 9
The Education Affairs Act 10 permitted the use of corporal punishment in schools under specific guidelines. It allowed male teachers to administer physical punishment to male learners, typically using a cane, while female students were often subjected to punishment by female staff. While there were some regulations regarding the number of strokes or how punishment was to be administered, enforcement and monitoring were weak.
In addition to education laws, the common law principle of in loco parentis, meaning that teachers stood “in the place of the parent,” was frequently used to justify corporal punishment in schools. Under this doctrine, teachers were granted broad discretionary powers to discipline learners as a parent would, including through physical means
3 The Legal Framework of Corporal Punishment in South Africa since 1996.
It was only with the advent of democracy in 1993, with the articulation of the interim Constitution and the adoption of the South African final Constitution in 1996, particularly the inclusion of the Bill of Rights, that the legal tide began to turn against corporal punishment.
Section 12 of the Constitution11 guarantees the right to freedom and security of the person, including the right “not to be treated or punished in a cruel, inhuman or degrading way,” setting the stage for later legal reforms, Moreover, Section 10 affirms and protect the fundamental rights of individuals to dignity and bodily integrity Also, section 28 of the Constitution, which guarantees the best interest of the child.
However, the 1995 Constitutional Court case of S v Williams marks an important moment in South Africa’s legal history, as it declared judicial corporal punishment unconstitutional, signalling a broader shift toward a human rights-based child justice system. Following this landmark ruling, a series of legislative reforms further dismantled the legal foundations of corporal punishment in various settings.
In 1996, the Correctional Services Second Amendment Act12 abolished the use of corporal punishment in prisons. That same year, the South African Schools Act13 formally banned corporal punishment in schools, a position also reflected in the National Education Policy Act14. The prohibition was further entrenched with the enactment of the Abolition of Corporal Punishment Act15, which outlawed whipping as a criminal sentence. Additionally, the Child Justice Act made no provision for corporal punishment within its framework, reinforcing the rights-based approach to juvenile justice.
The ban in educational settings was reiterated in the Further Education and Training Colleges Act16, while regulations under the Children’s Act extended the prohibition to foster care and child and youth care centres. However, in the case of Christian Education South Africa v Minister of Education, the Constitutional Court upheld the ban on corporal punishment in schools, rejecting claims that religious beliefs justified its continued use.
The 2002 draft Children’s Bill included a clear prohibition of corporal punishment. It also proposed the abolition of the common-law defence of “reasonable and moderate chastisement”, which had traditionally been used to justify physical discipline of children. In its place, the Bill advocated for an educational and awareness-based approach aimed at shifting societal attitudes toward more positive and non-violent forms of discipline.
Following the division of the Children’s Bill, the Children’s Act was enacted in 2005. However, it did not address the issue of corporal punishment directly, leaving it to be dealt with under the Children’s Amendment Bill.
However, clause 139 of the Amendment Bill explicitly stated that “no child may be subjected to corporal punishment or be punished in a cruel, inhuman, or degrading way.”17 In addition, the clause declared that “the common law defence of reasonable chastisement available to persons referred to in subsection (1) in any court proceeding is hereby abolished.” This marked a significant legislative step towards the full legal prohibition of corporal punishment in all settings.
The Basic Education Laws Amendment (BELA) Bill, first introduced in 2022 as Bill [B2- 2022], proposed a number of reforms to the South African Schools Act 84 of 1996, including the strengthening of protections against corporal punishment in schools. This provision was carried through the legislative process and ultimately confirmed in the final Basic Education Laws Amendment Act 15 of 2024, which was signed into law on 13 September 2024.
Section 10 of the amended Act now expressly abolishes corporal punishment and prohibits any person from inflicting or imposing it upon a learner, not only within a school, but also during any school activity or in hostels accommodating learners. The amended subsection (2) criminalises such conduct, providing that any person who contravenes the provision is guilty of an offence and, upon conviction, may be sentenced to a fine, imprisonment for up to 12 months, or both.18
4 South Africa’s compliance with International Human Rights standards
South Africa’s stance on corporal punishment is firmly aligned with international human rights standards. Pursuant to Section 39(1) (c) of the Constitution, which requires the courts to consider international law when interpreting the Bill of Rights, domestic legislation is construed to give effect to the values and principles of international human rights law. Furthermore, Sections 232 and 233 of the Constitution affirm the application of international law within the domestic legal framework, thereby reinforcing South Africa’s commitment to upholding its international obligations, only if the application of international law is consistent with the Constitution.
The prohibition of corporal punishment, both in schools and within the home, reflects this commitment and aligns with binding international instruments such as the African Charter on the Rights and Welfare of the Child (1990), which prohibits abuse and harmful practices against children and similarly the United Nations Convention on the Rights of the Child (UNCRC), which explicitly condemns all forms of violence against children, including corporal punishment. This is in line with the provision Article 19 of the UN Convention on the Rights of the Child (UNCRC), which states that :
“Parties shall take all appropriate 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, maltreatment or exploitation, including sexual abuse while in the care of parent(s), legal guardian(s) or any other person who has the care of the child…19
In addition, the constitutional protection of individual dignity and bodily integrity, as enshrined in Section 10,20 and the principle that the best interests of the child are of paramount importance in all matters concerning the child, as provided in Section 28(2)21, further strengthen the legal and moral basis for prohibiting corporal punishment. These provisions serve as an illustration of the State’s duty to respect, protect, promote, and fulfil the rights of all persons, particularly children, by ensuring their rights are protected.
However, taken together, South Africa’s constitutional and international law obligations reflect a clear and coherent legal position that all forms of corporal punishment are inconsistent with the rights to dignity, bodily integrity, and the best interests of the child, and are therefore impermissible under South African law.
5 Conclusion
Conclusively, the evolution of South Africa’s legal stance on corporal punishment reflects a profound shift from an apartheid-era system that condoned physical discipline to a constitutional democracy committed to the protection of human rights and the dignity of all individuals, especially children. South Africa’s judicial precedents, such as the landmark Constitutional Court judgments of S v Williams, Christian Education South Africa v Minister of Education, and Freedom of Religion South Africa v Minister of Justice and Constitutional Development, have progressively dismantled the legal foundations of corporal punishment, culminating in its complete prohibition in judicial, educational, and domestic contexts.
This jurisprudential development affirms South Africa’s constitutional obligations, particularly the right to dignity as outlined in Section 10 of the Constitution, the paramountcy of the child’s best interests as enshrined in Section 28 of the Constitution, and the broader duty to interpret all laws in light of the Bill of Rights. It must consider international law when interpreting, as contemplated in section 39 of the Constitution. It also reinforces the country’s commitment to its international obligations under the United Nations Convention on the Rights of the Child and the African Charter on the Rights and Welfare of the Child, both of which mandate the protection of children from all forms of physical or mental violence.
In recognising the harmful effects of corporal punishment and rejecting its justification under the guise of discipline or religious belief, South African law now stands in alignment with global human rights standards. The constitutional and international legal framework not only prohibits corporal punishment but also imposes a positive obligation on the state to adopt preventative and educational measures to safeguard children’s rights.
Bibliography
Primary Sources
Legislation and Constitutional Instruments
- Abolition of Corporal Punishment Act 33 of 1997.
- Correctional Services Second Amendment Act 79 of 1996.
- Education Affairs Act (House of Assembly) No. 70 of 1988.
- Further Education and Training Colleges Act 16 of 2006.
- National Education Policy Act 27 of 1996.
- South African Schools Act 84 of 1996.
- The Constitution of the Republic of South Africa, 1996.
International and Regional Instruments
- Organization of African Unity (OAU), African Charter on the Rights and Welfare of the Child (adopted 11 July 1990, entered into force 29 November 1999) CAB/LEG/24.9/49.
- UN Committee on the Rights of the Child, General Comment No. 8 (2006): The right of the child to protection from corporal punishment and other cruel or degrading forms of punishment (arts. 19; 28(2); and 37, inter alia), CRC/C/GC/8, 2 March 2007.
- UN General Assembly, Convention on the Rights of the Child (adopted 20 November 1989, entered into force 2 September 1990) UNTS vol 1577, p 3.
Case Law
- Christian Education South Africa v Minister of Education 2000 (4) SA 757 (CC).
- Freedom of Religion South Africa v Minister of Justice and Constitutional Development 2020 (1) SA 1 (CC).
- S v Williams and Others 1995 (3) SA 632 (CC).
Secondary Sources
- Robert Morrell, ‘Corporal Punishment in South African Schools: A Neglected Explanation for its Persistence’ (2001) 21(4) South African Journal of Education 292.
- Lizelle Ramaccio Calvino, ‘Protecting the vulnerable in South Africa: prohibition of corporal punishment in the private sphere’ (2021) 42(3) Obiter Port Elizabeth.
1 Criminal Procedure Act No. 51 of 1977.
2 S v Williams 1995 (3) SA 632 (CC), para 96(1).
3 Christian Education South Africa v Minister of Education 2000 (4) SA 757 (CC), para 52.
4 Freedom of Religion South Africa v Minister of Justice and Constitutional Development and Others (CCT 320/17) [2019] ZACC 34, para 76(4).
5 UN General Assembly, Convention on the Rights of the Child (20 November 1989) UNTS vol 1577, 3.
6 UN Committee on the Rights of the Child, General Comment No 8 (2006): The right of the child to protection from corporal punishment and other cruel or degrading forms of punishment (arts 19; 28(2); and 37, inter alia), UN Doc CRC/C/GC/8 (2 March 2007).
7 See s28 of the Constitution.
8 Organization of African Unity (OAU), African Charter on the Rights and Welfare of the Child (11 July 1990) CAB/LEG/24.9/49 (1990).
9 Morrell, R. (2001). Corporal punishment in South African schools: A neglected explanation for its persistence. South African Journal of Education, 21(4), p-292.
10 Education Affairs Act (House of Assembly) No. 70 of 1988.
11 Constitution of the Republic of South Africa, 1996.
12 Correctional Services Second Amendment Act 79 of 1996.
13 South African Schools Act 84 of 1996.
14 National Education Policy Act 27 of 1996.
15 Abolition of Corporal Punishment Act 33 of 1997.
16 Further Education and Training Colleges Act 16 of 2006.
17 Children’s Amendment Bill B19B of 2006, cl 139(3).
18 Basic Education Laws Amendment Act 15 of 2024, s 10 (substituting s 10 of the South African Schools Act 84 of 1996).
19 UN General Assembly, Convention on the Rights of the Child (20 November 1989) UNTS vol 1577, p 3, art 19.
20 See s10 of the Constitution of the Republic of South Africa, 1996.
21 See s28 of the Republic of South Africa,1996.
