ABOLISHMENT OF COMMON LAW DEFENCE OF MODERATE  CHASTISEMENT: SOUTH AFRICA’S COMPLIANCE WITH INTERNATIONAL  HUMAN RIGHTS STANDARDS.

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.