The South African Law and corporal punishment of children: Are children equal before the law?

1. The South African Law and corporal punishment of children: Are children equal before the law?

2. Equality • Formal equality: any inequality is irrational and arbitrary. • Substantive equality: difference is not a problem, but rather the harm that may flow from this. • Section 9 of the Constitution- aimed at substantive equality as it recognises that discrimination can be fair and allows for a purposive approach. • A limitation of the right to equality will have to be justified in line with section 36 of the Constitution.

3. Values underlying the equality right: • Dignity is a core value of the right to equality. • Equality value linked to the achievement of social and economic equality and dismantling structural inequalities. • What does section 9 require: • Distinction between differentiation and discrimination; and • Rationality.

4. Other relevant rights applicable to children • The right to dignity-section 10 of the Constitution • Section 28 of the Constitution, in particular • Section 28(1)(d); • Section 28(2).

5. Jurisprudence on Corporal punishment • The first Constitutional Court case concerning children’s rights in South Africa was on the issue of the use of corporal punishment for child offenders. • This was in the case of S v Williams 1995(3) SA 632 (CC), where the Constitutional Court found that whipping of young offenders, as was provided for under section 294 of the Criminal Procedure Act, as a sentence for their offences was unconstitutional.

6. The main grounds on which the court reached its decision were that corporal punishment as a sentence were that: • a)children had the right not be subject to cruel inhuman or degrading treatment; • b) children’s right to be protected from maltreatment, neglect, abuse or degradation; and • c)punishment for criminal offences must respect the standards and values underpinning the constitution, one of which is that punishment must respect and protect human dignity and be consistent with the Constitution

7. In Christian Education South Africa v Minister of Education of the Republic of South Africa 2000 (4) SA 757 section 10 of the Schools Act was challenged by the applicants and they argued that section 12, which protects the right to freedom and security of the person, is in conflict with their right to practice their religion, as provided for in section 31 of the Constitution. • The applicants were arguing that Christian communities should be allowed to administer corporal punishment in their independent schools and this is in accordance with their religion.

8. The High Court found a against the applicants. • The court referred to the judgement in S v Williams and stated that • “ ….a logical and realistic approach to the matter does not allow the conclusion that there is material difference between whipping of juveniles and the administration of corporal punishment in schools and it must therefore follow that the finding of the constitutional court in S v Williams……..that the former is unconstitutional, must be equally applicable to the latter.”

9. The Constitutional Court found that section 10 of the Schools Act was constitutional, however this was done not with the focus on whether corporal punishment was a practice in violation of the Bill of Rights. • The Constitutional Court focused on the right to freedom of religion, as had been argued by the applicants, and subjected the right to a limitations analysis as provided for in section 36 of the Constitution. • The court found that although parents’ rights to freedom of religion were violated by section 10 of the Schools Act which banned corporal punishment, that the limitation the right to freedom of religion was justifiable.

10. The Constitutional Court referred to the state’s obligation to protect all people and especially children from maltreatment, abuse or degradation. • The Constitutional Court made reference to the UNCRC obligation to “take all appropriate measures to protect the child from violence, injury or abuse.” • Observation • The two aforementioned cases are positive and it is clear that the Constitutional Court will not allow corporal punishment for human rights reasons and will also limit the right to freedom of religion if that is what is needed to uphold children’s rights and also to comply with international obligations.

11. How to achieve equality for children in the context of corporal punishment in the home? • The abolishment of the common law defense of reasonable chastisement on ground that it infringes children’s constitutional rights. • Outright ban on corporal punishment. • To achieve any of the aforementioned the right to equality and the protection of dignity are central

12. Counter arguments • Privacy of family • Religion • Culture

13. Constitutional jurisprudence on dignity and best interests • S v M (Centre for Child Law as Amicus Curiae) 2008(3) SA 232 (CC)- court made it clear that a child has his or her own dignity and is not a mere extension of his or her parents. • Van der Burg v NDPP 2012(2) SACR 331 (CC)

14. Can equality be achieved for children in the context of corporal punishment in the home? • S v Williams 1995(3) SA 632 (CC) and Christian Education South Africa v Minister of Education of the Republic of South Africa 2000 (4) SA 757 have laid a foundation for us, • however • We must that legislation alone is not enough.

15. Thank you!