MOGOENG CJ
ultimately eradicate that widespread challenge. “All forms” is so all-encompassing that
its reach or purpose seems to leave no form of violence or application of force to the
body of another person out of the equation. To drive the point home quite conclusively,
the Constitution extends the prohibition to violence from “either public or private
sources”.
[43]
It is necessary to emphasise that in terms of our law, the application of force,
including a touch depending on its location and deductible meaning, or a threat thereof
constitutes assault.
And parental authority or entitlement to chastise children
moderately and reasonably has been an escape route from prosecution or conviction.
This means that the violence proscribed by section 12(1)(c) could still be committed
with justification if that parental right is retained. But, if it is accepted that what would
ordinarily be criminally punishable, but for the common law defence of moderate and
reasonable chastisement, is indeed what section 12(1)(c) seeks to prevent, then children
would be protected by that section like everyone else. One would be hard-pressed to
suggest that assault, which chastisement however moderate or reasonable is, does not
fall within the catchment area of section 12(1)(c). “All forms of violence” means
moderate, reasonable and extreme forms of violence. Besides – “a culture of authority
which legitimates the use of violence is inconsistent with the values for which the
Constitution stands.”36
[44]
This proscription does put an end to any argument, however sound, that might
be raised on any ground in support of the retention of the defence of reasonable and
moderate parental chastisement. For there are indeed sound and wisdom-laden, faithbased and cultural considerations behind the application of the rod. That said, parental
chastisement of a child, however moderate or reasonable does, in my view, meet the
threshold requirement of violence proscribed by this constitutional provision and,
therefore, limits the right in section 12(1)(c). The conclusion that it cannot escape the
reach of section 12(1)(c) is inevitable.
36
S v Williams [1995] ZACC 6; 1995 (3) SA 632 (CC); 1995 (7) BCLR 861 (CC) at para 52.
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