MOGOENG CJ
unconstitutionality of all common law principles would justify a departure from normal
practice, the nature or importance of the constitutional issues raised, the seriousness and
far-reaching implications of the unconstitutionality in this matter justify a departure
from the normal appeal route, via the Supreme Court of Appeal. Certainty and finality
is needed urgently. A delay that would be caused by that appeal process trajectory
would not be in the public interest or in the interests of justice.24 This is so because
parents discipline their children daily.
The sooner they know what is legally
permissible, the better.
Issues
[29]
The constitutional validity of a parent’s defence to carry out reasonable and
moderate chastisement has been attacked on several fronts.25
[30]
But, I hasten to state that there is merit in the approach that recognises that
prolixity must be avoided where that can be achieved without watering down the quality
of reasoning or the soundness of a judgment. Where one or more key constitutional
rights or principles could help to properly dispose of an issue, very little purpose is
hardly ever served by the long-windedness that takes the form of trolling down all the
rights, principles or issues implicated or raised in order to arrive at the same conclusion.
That is not to make light of the educational value of, where appropriate or necessary,
dealing with every right, principle or issue raised. But readability, due regard to the
scarcity of judicial resources and time, and the need for precision or tight reasoning
often call for a sharper focus and brevity.
[31]
For these reasons, the constitutionality of moderate and reasonable chastisement
will primarily be resolved on the provision of section 12(1)(c) of the Constitution. The
right to dignity will also receive attention in the discussion.26
24
Id. This Court listed a range of factors that it would consider in determining whether it is in the interests of
justice to grant direct access under section 167(6)(a) of the Constitution.
25
On the bases of sections 9-10, 12 and 28 of the Constitution.
26
Section 10 of the Constitution.
11
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