South Africa: Spare the Rod... and Spare the Child - Landmark Concourt Ruling Overturns Psalm 137:9


If you smack your child, you may end up in prison - the Constitutional Court has held that the common law defence of the reasonable and moderate chastisement of a child is an unjustifiable violation of the rights to freedom and security of person and human dignity.

Many parents see fit to discipline their children with mild chastisement; a pat on the bottom of a screaming toddler by a desperate parent is something many of us have witnessed in the aisles of a grocery store. It may even be something many have done. But take heed parents - since the landmark Constitutional Court judgment on 18 September 2019, the common law defence of the reasonable and moderate parental chastisement of a child is no longer available and you could end up with a criminal conviction for assault.

In Freedom of Religion South Africa v Minister of Justice & Constitutional Development [2019] ZACC 34, a unanimous Constitutional Court found this common law defence, which has historically exempted parents from criminal prosecution and conviction, to be unconstitutional. The finding is prospective in its operation, meaning that past cases cannot now be prosecuted, however Chief Justice Mogoeng Mogoeng did caution; "a proliferation of...

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