MOGOENG CJ
limit the rights in the Bill of Rights. This defence is available to all parents, regardless
of their religious, cultural or other persuasions, when charged with assault of their
children. And it limits a child’s constitutional rights to dignity and to be protected from
all forms of violence. What remains to be determined is whether that limitation is
reasonable and justifiable, regard being had to some of the factors listed in section 36.
The nature, purpose and importance of the limitation
[51]
The reality is that parental chastisement is significantly different from the
institutionalised administration of corporal punishment that has since been abolished.40
The one is intimate and administered by a loving parent whereas the other is somewhat
cold, detached and implemented by a stranger of sorts. Parents have the inherent
obligation to raise their child to become a responsible member of society whose
delinquency they stand to be blamed for, whereas strangers like teachers only had an
official and possibly less-caring duty to punish. The primary responsibility to mould or
discipline a child into a future responsible citizen is that of parents. For example
Christian parents have a “general right and capacity to bring up their children according
to Christian beliefs”.41 The abolition of the defence forces them ––
“to make an absolute and strenuous choice between obeying a law of the land or
following their conscience . . . to fulfil what they regard as their conscientious and
biblically-ordained responsibilities for the guidance of their children.”42
[52]
The invalidation of the defence of moderate and reasonable chastisement in
Gauteng thus means that the chastisement aspect of their religiously or culturally
ordained way of raising, guiding and disciplining their children is no longer available
to them. To discipline them in terms of the prescripts of their faith or culture would
expose them to criminal prosecution, possible conviction and possible imprisonment.
40
Christian Education South Africa v Minister of Education [2000] ZACC 11; 2000 (4) SA 757 (CC); 2000 (10)
BCLR 1051 (CC) at para 51.
41
Id at para 38.
42
Id at para 51.
19
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