MOGOENG CJ
MOGOENG CJ (Basson AJ, Cameron J, Dlodlo AJ, Froneman J, Goliath AJ,
Khampepe J, Mhlantla J, Petse AJ and Theron J concurring):
Introduction
[1]
The adage “spare the rod, spoil the child” stares us in the face here.1 It challenges
our foresight and capacity to bring Solomonic wisdom to bear on a sensitive, complex
and controversial matter of national importance – child discipline.
[2]
Many parents contend that they bear the primary duty to lovingly raise their
children in terms of their religious, cultural and other “non-harmful” beliefs, which
entail the administration of moderate and reasonable chastisement, without being
exposed to the risk of criminal charges or a criminal record.
[3]
The entitlement of parents to administer that chastisement without attracting
adverse legal consequences was declared unconstitutional by the High of South Africa,
Gauteng Local Division, Johannesburg (High Court). This declaration was based on
the infringement of several constitutional rights that a child enjoys.2
[4]
This then is an application for leave to challenge the declaration of constitutional
invalidity of a parent’s right to administer reasonable and moderate chastisement to her
child. It remains a valid defence against a charge of common assault throughout
South Africa, except for Gauteng.
Background
[5]
This matter began as a trial of assault with intent to do grievous bodily harm in
the Johannesburg Magistrates’ Court. The father abused his 13 year old son for
watching pornographic material. The violence meted out to the son also took the form
of vicious kicking and punching. The father could not, therefore, have justifiably raised
the defence of reasonable and moderate chastisement or relied on any religious or
1
Proverbs 13:24 Holy Bible New King James Version (Thomas Nelson Publishers, 1982).
2
S v YG 2018 (1) SACR 64 (GJ).
3