Date: February 2002

South African Law Commission advocates removal of "reasonable chastisement" defence

The South African Law Commission has recommended that the common law defence of "reasonable chastisement" should no longer be available for parents and other care-givers who are charged with assault and similar offences.

The recommendation comes in a very detailed review of child care law, carried out by the Commission in order to make recommendations for reform to the Minister for Social Development. Following initial consultations, the Commission has published a detailed discussion paper with preliminary recommendations. The consultation period on the paper ended on February 28 2002. The next stage will be the preparation of draft legislation.

In a section on corporal punishment by parents the report states: "The Commission recommends that an educative and awareness-raising approach be followed, in order to influence public opinion on the issue of corporal punishment. However, the Commission is further of the opinion that the common law defence that a parent may raise that physical punishment was justified on the grounds of the rights of parents to impose reasonable chastisement upon their children is overly broad, and that the common law in this regard should be revisited in order to protect children from serious breaches of physical integrity". The full report and an executive summary are at http://wwwserver.law.wits.ac.za/salc/discussn/discussn.html

South Africa has already abolished corporal punishment of children in all schools, the penal system, care institutions and foster care. South Africa's Constitutional Court condemned corporal punishment in the penal system and upheld abolition of school corporal punishment against a challenge by a group of Christian Schools.

In 2000 the Committee on the Rights of the Child recommended "that the State party reinforce measures to raise awareness on the negative effects of corporal punishment and change cultural attitudes to ensure that discipline is administered in a manner consistent with the child's dignity and in conformity with the Convention. It is also recommended that the State party take effective measures to prohibit by law the use of corporal punishment in the family and, in this context, examine the experience of other countries that have already enacted similar legislation".

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