Freedom of Religion South Africa v Minister of Justice and Constitutional Development and Others [2019] ZACC 34 is a landmark decision of the Constitutional Court of South Africa, handed down on 18 September 2019. The unanimous judgment, written by Chief Justice Mogoeng Mogoeng, declared that the common law defence of "moderate and reasonable chastisement" is unconstitutional, thereby rendering corporal punishment of children in the home illegal.
Background
The case originated from an appeal against a decision of the High Court of South Africa, Gauteng Local Division, Johannesburg (prior action: YG v S [2017] ZAGPJHC 290). The applicant, Freedom of Religion South Africa (FOR SA), a Christian lobbying group, challenged the High Court's ruling that the common law defence of reasonable chastisement was inconsistent with the Constitution.
Judgment
The Constitutional Court confirmed the High Court's decision, holding that the common law defence violated several constitutional rights of children, including the right to be protected from violence (section 12(1)(c) of the Constitution), the right to dignity (section 10), and the right to be free from all forms of violence (section 28(1)(d)). The court found that the constitutional prohibition on violence extends to the private sphere of the home and family relationships, and that no exception exists for parents who use corporal punishment as a disciplinary measure.
The full bench consisted of Mogoeng CJ, Basson AJ, Cameron J, Dlodlo AJ, Froneman J, Goliath AJ, Khampepe J, Mhlantla J, Petse AJ, and Theron J.
Impact
The decision abolished the centuries-old common law defence that had previously exempted parents from prosecution for assault when disciplining their children through physical punishment. As a result, parents in South Africa are no longer immune from criminal liability for striking their children, and any form of corporal punishment in the home is now illegal.
Reactions
The ruling generated mixed responses. Freedom of Religion South Africa described the decision as "dangerous" and "destructive." Children's rights organisations, including Save the Children South Africa and the Children's Institute at the University of Cape Town, welcomed the judgment, as did the Department of Social Development.
Citation
Full citation: Freedom of Religion South Africa v Minister of Justice and Constitutional Development and Others [2019] ZACC 34; 2019 (11) BCLR 1321 (CC); 2020 (1) SA 1 (CC); 2020 (1) SACR 113 (CC).
