MOGOENG CJ
[66]
To properly locate the best interests of the child, it is necessary to come to grips
with the nature of those interests in relation to chastisement. Chastisement is meant to
discipline and help a child appreciate consequence management. In other words, the
purpose of moderate and reasonable chastisement is to mould a child into a responsible
member of society. What then is in her contextual best interests? It is, in my view, to
achieve the same laudable objective without causing harm or unduly undermining the
fundamental rights of the child. In other words, if there exists a disciplinary mechanism
or measure that is more consistent with love, care, the more balanced protection of the
rights and advancement of the well-being of a child and another that is less so, the
former must be preferred for it gives expression to what is in the best interests of the
child. It recognises, in a practical way, the paramount importance of a child’s best
interests.
[67]
The application of force or a resort to violence, which could be harmful or
abused, cannot in circumstances where there is an effective non-violent option available
be said to be consonant with the best interests of a child. For indeed the best interests
of a child is about what is best for her in the circumstances – what benefits her most
with no or minimum harm. But the absence of any form of discipline can never be in
the best interests of a child. That said, moderate and reasonable chastisement as a tool
for discipline, cannot be retained at the expense of a child’s fundamental right to dignity.
And the limitation of that right has not been properly explained.
Less restrictive means to achieve purpose
[68]
What undermines the justification for retaining chastisement, more revealingly,
is the availability of less restrictive means to achieve discipline. Chastisement is, after
all, traditionally supposed to be the option of last resort, employed only when all else
fails. Besides, the experience-borne traditional approach generally adopted by South
African parents over the years has been to teach, guide and admonish their children,
resorting to chastisement only as a measure of last resort. No research is required to
verify this reality. It is as obvious as the side of the road on which South Africans drive
their vehicles. The unreasonable and immoderate chastisement which constitutes
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