IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA

CASE NUMBER: CCT 320/17

In the matter between:

FREEDOM OF RELIGION SOUTH AFRICA Applicant and

MINISTER OF JUSTICE AND CONSTITUTIONAL DEVELOPMENT First Respondent MINISTER OF SOCIAL DEVELOPMENT Second Respondent NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS Third Respondent YG Fourth Respondent THE CHILDREN’S INSTITUTE Fifth Respondent THE QUAKER PEACE CENTRE Sixth Respondent

SONKE GENDER JUSTICE Seventh Respondent

APPLICANT’S HEADS OF ARGUMENT

TABLE OF CONTENTS

INTRODUCTION ...... 2

APPLICATION FOR STANDING AND LEAVE TO APPEAL ...... 3

REASONABLE AND MODERATE PHYSICAL CHASTISEMENT ...... 7

WHETHER THE COURT A QUO SHOULD HAVE ENGAGED THE CONSTUTIONAL

ISSUE? ...... 13

WHETHER THE DEFENCE CONTRAVENES INTERNATIONAL OBLIGATIONS? ...... 19 - 2 - WHETHER THE DEFENCE VIOLATES THE CONSTITUTION? ...... 22

RELEVANT CASE LAW ...... 28

UNREASONABLE AND UNJUSTIFIABLE LIMITATION OF PARENTAL RIGHTS ...... 33

UNINTENDED CONSEQUENCES ...... 37

CONCLUSION ...... 40

COSTS ...... 41

INTRODUCTION

1. This is an application first for standing and secondly for leave to appeal. Assuming that

standing and leave to appeal will be granted, the applicant, relying on the grounds of

appeal as expounded in its application1, contends for the setting aside, alternatively

variation of the part of the judgment and order of the High Court, Gauteng Local

Division, Johannesburg (“the Court a quo”) on 19 October 2017 in the appeal of YG vs

The State under case number A263/2016 (“the matter for appeal”), in terms whereof it

was found inter alia that the common law defence of reasonable and moderate

chastisement (“the common law defence”) is unconstitutional and “prospectively” no

longer applies in South African law.2

2. In particular, it will be contended that the Court a quo ought not to have abolished the

1 Record, pp 98 – 116. 2 Record, pp 87(a)-(c). The respondents have responded as follows to the application: the first respondent delivered a Notice of Intention to Oppose the application, but no Answering Affidavit. The second respondent delivered a Notice of Intention to Oppose the application and thereafter an Answering Affidavit. The second respondent does not contest the applicant’s standing to bring the application, and opposes only the application for leave to appeal. The third respondent does not oppose the application, and delivered a Notice to Abide the decision of the Court. No response was received from the fourth respondent. The fifth to seventh respondents adopted the following position: they abide on the issue of - 3 - common law defence but to have left its retention or not to parliamentary process,

alternatively, instead of abolishing the common law defence, the Court a quo ought to

have developed the common law by introducing further parameters of “reasonable” and

“moderate” chastisement to what already exists in common law (“a calibrated

approach”)3 as in, for example, Canada and the United Kingdom.

APPLICATION FOR STANDING AND LEAVE TO APPEAL

3. The applicant4 was invited by the Court a quo to make submissions, and was admitted as

fourth amicus curiae with regard to the constitutionality of the common law defence of

reasonable and moderate chastisement (“the constitutional issue”) which was raised mero

motu by the Court a quo.5

4. The applicant contended6 as it does in this honourable court. The fifth to seventh

respondents (herein after referred to as “the CCL amici” by reason of their joint

representation by the Child Law Centre) appeared as the first to third amici curiae in the

Court a quo, and argued for the abolition of the common law defence.

the applicant’s standing; they requested leave to intervene alternatively to be joined as parties, on the same basis as the applicant; and they oppose the application for leave to appeal. 3 Record, p 117 at para 42. 4 Freedom of Religion South Africa NPC (FOR SA) is a non-profit organisation, working to protect and promote the constitutional right to religious freedom in South Africa. The applicant currently has an endorsement base of religious leaders representing 6 million+ people in South Africa. Its constituency spans across denominations, churches and faith groups in South Africa. (Record, p 89 at para 5 and pp 93-94, paras 21.1 – 21.2). 5 Record, p 90 at para 11. We specifically point out that the applicant did not in its amicus submissions to the Court a quo, make any submissions with regard to the factual inquiry, which it submitted was for the Court to decide on consideration of the evidence before it. Instead, the applicant’s submissions were confined to legal submissions on the constitutionality of the defence of moderate and reasonable chastisement, in principle and removed from any particular set of facts - i.e. the constitutional enquiry, only in the event of and to the extent that this enquiry may become necessary after consideration of the factual enquiry. 6 Record, p 91 at para 12. - 4 - 5. Following judgment by the Court a quo, neither the fourth respondent herein (Mr YG),

nor the State showed an intention to appeal, leaving the applicant as the only other party

to apply for leave to appeal against the judgment7, as it duly did – first to the Supreme

Court of Appeal (“the SCA”) which directed the applicant to approach the above Court

for leave to appeal.8 This left the applicant with no other reasonable and effective manner

in which to challenge the judgment of the Court a quo than its application.

6. The applicant brings this application in the public interest9 as well as that of its

constituency.10 The persons affected are not limited to Christian believers who view

reasonable and moderate physical correction as a central tenet of their faith11, but also

persons of other faiths – or indeed no faith at all – who believe and practice same.12 The

range of persons or groups directly affected by the order made by the Court a quo is

significant. The opportunity that those persons or groups had to present evidence and

7 Record, p 95 at para 24. 8 Record, p 92 at paras 17-18. 9 Record, p 98 at para 31. 10 The applicant’s interest in the matter lies therein that millions of religious believers in South Africa (across different denominations, churches and faith groups), believe that their scriptures and other holy writings permit (if not command) reasonable and moderate correction of their children. For millions of religious believers, child correction (including physical chastisement at times, where needed, always in love) is a central tenet of their faith. This is not to suggest that for all religious believers, child correction is a central tenet of their faith. Some people believe that their scriptures command reasonable and moderate correction; others do not, interpreting those scriptures differently. (Record, p 94 at paras 21.3 – 21.4) 11 In regard to the Judaic and Christian faiths, Mishlei/Proverbs 13v24, 19v18 and 22v15 find application. The Complete Jewish Bible (Tanakh) commentary by Rashi reads as follows: 13v24: “He who holds back his rod hates his son, but he who loves him disciplines him early.” 19v18: “Chastise your son for there is hope, but do not set your heart on his destruction.” 22v15: “Foolishness is bound in a child’s heart; the rod of discipline will drive it far from him.” The various Christian bible translations accord with these translations. In the Christian Bible and New Testament, Hebrews 12v7 and 12v11 also find application. These in the New International Version are: 12v7: “Endure hardship as discipline; God is treating as his children. For what children are not disciplined by their father?” 12v11: “No discipline seems pleasant at the time, but painful. Later on, however, it produces a harvest of righteousness and peace for those who have been trained by it.” 12 Record, p 247 at para 20.1 - 5 - argument to the Court a quo was limited to the applicant, and we submit that the above

court’s oversight is necessary.

7. In University of Witwatersrand Law Clinic v Minister of Home Affairs and Another13, this

Court stated as follows:

“This court made it clear in Campus Law Clinic14 that an amicus curiae would ordinarily be permitted to appeal against an order of another court only where the actual parties to that litigation were not seeking to pursue an appeal and there was a clear public interest requiring it to be permitted to lodge the appeal” (emphasis added).

8. Given the nature of the rights involved, the order of the Court a quo holds real and

potentially dire consequences for parents, children and society. The judgment raises

gravely important constitutional issues with regard to parental rights and authority, as

well as the constitutional right of parents to raise their children in accordance with their

religious, moral or philosophical convictions and beliefs per s 15 of the Constitution.15

The needs of children to be raised with effective discipline are implicated. The most

vulnerable in South African society, namely children and the impoverished who do not

appreciate or do not have the means of other positive parenting discipline methods, are

affected.

13 2008 (1) SA 447 (CC) at para [6]. 14 In the case of The Campus Law Clinic (University of Kwa-Zulu Natal Durban) v Standard Bank of South Africa Ltd and Another 2006 (6) SA 103 (CC) at para [21], the Court stated as follows with regard to proceedings brought in the public interest: “The factors that would be relevant would be: whether there is another reasonable and effective manner in which the challenge may be brought; the nature of the relief sought and the extent to which it is of general and prospective application; the range of persons or groups who may be directly or indirectly affected by any order made by the Court and the opportunity that those persons or groups have had to present evidence and argument to the Court; the degree of - 6 - 9. While an order (of the High Court or SCA) declaring an Act of Parliament

constitutionally invalid, has no force in terms of s 172(2)(a) of the Constitution unless it

is confirmed by the above Court, the same does not apply in terms of the common law.

The common law defence has been part of South African law for decades and throughout

its constitutional existence, and it is not merely appropriate but necessary that the matter

be considered by a higher court. Furthermore the judgment and order of the Court a quo

is not binding on all High Courts, and the possibility that conflicting decisions may arise

in the future cannot be excluded.16

10. We submit finally that the judgment also raises the question of the development of the

common law by the courts, as provided for in s 39(2) of the Constitution, having regard

particularly to the principle of separation of powers, in terms whereof the major engine

for law reform should be the legislature and not the judiciary.17 (We return to this later

herein).

11. In all the premises, we submit there are no procedural or substantive reasons why the

applicant should not be given standing. We further submit that, having regard to the

reasons for and grounds of appeal as set out below (under the heading “MERITS OF

THE APPLICATION”), the applicant has reasonable prospects that this Court would

come to a different conclusion on appeal.18

vulnerability of the people affected; the nature of the rights said to be infringed; as well as the consequences of the infringement. The list of factors is not closed.” 15 Record, p 97 at para 27. 16 Record, p 97 at para 29. 17 Record, p 97 at para 28. 18 Record, p 98 at para 30. - 7 - REASONABLE AND MODERATE PHYSICAL CHASTISEMENT

12. As an organisation, the applicant is neither for, nor against, physical chastisement. The

applicant is however for the right of parents to decide for themselves, in accordance with

their moral or scriptural convictions, what is in the best interest of their children.

13. That said, the applicant, and indeed the constituency it represents, are 100% against any

form of physical violence or abuse of children and fully supports the prosecution of, and

enforcement of existing laws against child abuse against, any person – including any

parent – who make themselves guilty of reprehensible conduct.19

14. There is however – as borne out by accepted social and psychological science – a

fundamental and obvious difference (with regard to the act involved, intent, attitude and

effect) between violence, aggression and abuse on the one hand (which is already

prohibited in terms of the common law offence of assault and laws of general application,

e.g. Children’s Act, 2005; Domestic Violence Act, 2008) and reasonable and moderate

physical correction, at times, where necessary, always in love, for the sole purpose of

correction / discipline and in the best interest of the child. 20

15. In this regard and in particular, we emphasise (and it is conceded by the CCL amici21)

that the social science is divided on the effects of physical correction on children22 with

19 Record, p 94 at para 21.5, and p 243 at para 9. 20 Record, p 106 at paras 36.1 – 36.2, and p 243 at paras 10 – 11. 21 Record, p 216 at para 98. 22 Record, p 253 at para 34. - 8 - some studies showing it to be beneficial for children23, and therefore in their best interest.

16. While it is not contested that the deponent to the CCL amici’s Affidavit is an expert on

studies of violence against women and children, her lack of independence and objective

assistance to the court is evident in that her evidence deals only with extreme cases of

violence24 against / abuse of children, rather than reasonable and moderate chastisement –

a concern that was also raised by the Honourable Justice Francis during argument before

the Court a quo. Her evidence regarding the situation in South Africa is therefore, with

respect, of little to no value in the circumstances25.

17. In the circumstances, it cannot be accepted as a fact – as we submit the Court a quo has

done in this instance - that physical correction, reasonably and moderately applied, is

indeed “harmful” to children26 and therefore not in their best interest, and also

amounting27 to a violation of their physical integrity and dignity.

18. We submit, with respect, that it is on this very point that the Court a quo went wrong, i.e.:

the Court a quo confused or conflated reasonable and moderate chastisement with

physical violence or abuse. They are not comparable, not on the law as it stands nor

conceptually.

19. The Court a quo seems to have erroneously assumed - without any substantiation therefor

in social or psychological science, or in law (as we will show hereunder) - that physical

23 Record, p 244 at para 13. 24 See for e.g. record, p 192 at para 3. 25 Record, p 246 at paras 18 – 19. 26 See for e.g. Record, p 55 at para [50], p 56 at para [52]. 27 Record, p 64 at para [69] – p 65 at para [70]. - 9 - correction, no matter how light or well-intended, amounts to physical violence or abuse.

Having adopted this (erroneous) stance as its starting point, the Court a quo arrived at the

conclusions which it did.

20. Furthermore there was no evidence placed before the Court a quo, as not the above court,

that the common law defence contributes in any way to child abuse in South Africa.

There is not even any case made out that the boni mores of South African society has

changed such as to necessitate a reconsideration of the common law defence.

21. In so far as the CCL amici and the second respondent advocate for “positive parenting”

methods (only), we point out that as a philosophy, “positive parenting” limits parental

influence to warm and support guidance devoid of any punitive measures (i.e.

punishment for misbehaviour) and therefore also limits disciplinary consequences. It

asserts that children never benefit from punitive correction, and as asserted also by the

CCL amici, that misbehaviour should always only be addressed through “more talking,

explaining, encouraging, expressing disapproval, setting boundaries, being consistent

and leading by example”.28

22. The problem with this philosophy and approach, as warm and loving as it sounds, is that

social and psychological science have shown that although effective in bolstering the

self-esteem of the child, “positive parenting” in fact does very little to curb misbehaviour,

let alone rebelliousness. It is also completely out of step with, and does not prepare

children, for the (harsh) reality that in life, there are negative (and in many instances,

28 Record, p 249 at para 23. - 10 - punitive) consequences for non-compliant (i.e. wrongful and/or illegal) behaviour.29

23. More training and disciplining tools are needed, not fewer: reasonable and moderate

chastisement, as well as the “positive parenting” methods advocated for by the CCL

amici and the “parenting skills development programmes” espoused by the second

respondent.30 The judgment by the Court a quo however:

23.1. disempowers all parents who practise reasonable and moderate physical

correction, especially those who live in poorer areas in overcrowded

accommodation who do not have the luxury of sending children to “naughty

corners” and where there are very few, if any privileges, to take away31; and

23.2. will, by abolishing the common law defence of reasonable and moderate

chastisement, potentially criminalise responsible parents who love their children

and only want what is best for them. For example, a parent who gives their three-

year-old a light smack to impress upon them the importance of not running out

into the road should not be treated as a child abuser. (We return to this later

herein).

24. The above Court is respectfully cautioned against taking a Euro-centric approach (which

has shown itself as ineffective even in those very countries32) to an African context.

29 Record, p 249 at para 24. 30 Record, p 95 at para 21.6 and p 244, para 13. 31 Record, p 95 at para 21.6. 32 Those in favour of a ban often cite Sweden as a role model. It banned smacking in 1979 and as the first country to do so is a useful case study because there is more data available to assess the claims of anti- smacking campaigners. They argue that reasonable chastisement teaches children that violence is - 11 - 25. By removing the defence of reasonable and moderate chastisement (which has always

been a legal defence to a charge of assault because our society has not viewed reasonable

and moderate chastisement as “assault”), it is effectively being said that the boni mores of

South African society has changed to such an extent that we now regard even a “tap on

the wrist” or a “smack on the bum” in the case of a very young child, or any non-

injurious act in respect of an older child, done in love for the sole purpose of correcting a

child’s misbehaviour, as assault.33

26. Again, it is not the applicant’s contention that there is not a need to educate and make

South African parents aware regarding the need for, and benefits of, “positive discipline”

(as envisaged by DSD’s draft policy34).

27. What the applicant is however contending, is that punishment that is not moderate,

unreasonable or excessive, is already against the law. Parents found guilty of assault can

be imprisoned and/or face a fine and even have their children removed from them.

Current law (including the Children’s Act, 2005 and the Domestic Violence Act, 1998,

both of which cover punishment which is not moderate, unreasonable or excessive and

protect children against such instances) should be enforced.35

acceptable. On this basis, we might expect the figures to show lower levels of violence among children after the ban. In fact, figures from Sweden show the opposite to be true: According to the Akron Law Review, results which have been noted are that a) Sweden’s teen violence skyrocketed in the early 1990s when the children who had grown up entirely with being completely illegal, became teenagers; b) the number of youth criminal assaults had increased by six (6) times in the illegal era when compared to the legal spanking era; and c) children under 15 year were more violent toward their peers. (See FOR SA’s written submissions to the Court a quo, paras 80 – 81, citing Akron Law Review, Volume 43, Issue 2, 2010 or online at http://www.uakron.edu/dotAsset/1820605.pdf). 33 Record, p 258 at para 48. 34 Record, p 169 at para 25. 35 Record, p 106 para 35.4 - 12 - 28. In the judgment by the Court a quo, much was made of the fact that the origins of the

defence of reasonable and moderate chastisement, lie in the common-law rights, duties

and responsibilities of parents. According to the Court a quo, same “are clearly at odds

with the child-focused model of rights envisaged under our Constitution”.36 We submit

with respect that this view is erroneous.

29. Those very rights, duties and responsibilities of parents which the Court a quo

erroneously regarded as archaic and out of step with the Constitution, are enshrined by

current international and regional treaties to which South Africa (including its

Constitution37) are subject. So, for example, all of the United Nations Convention on the

Rights of the Child (hereinafter referred to as the CRC), the International Covenant on

Civil and Political Rights (hereinafter referred to as the ICCPR), the African Charter on

Human and People’s Rights (hereinafter referred to as the Banjul Charter), and the

African Charter on the Rights and Welfare of the Child (hereinafter referred to as the

ACRWC) provide that the State must ensure that recognition is given to the principle that

the primary responsibility (and by implication, right) for the upbringing and development

of children, lie with the parents38. In addition, both the Banjul Charter and the ACRWC,

both of which South Africa has ratified, provide that children have a duty to respect their

parents39 (and parents therefore have a reciprocal right to demand respect, including

obedience, from their children).

36 Record, p 46 para [32] and p 62 at para [64]. 37 S 39(2)(b). - 13 - WHETHER THE COURT A QUO SHOULD HAVE ENGAGED THE CONSTUTIONAL

ISSUE?

30. The Court a quo recognised that there should be “compelling reasons” for a court to, in

the interests of justice, mero motu raise and decide a constitutional issue.40

31. Having regard to the Court a quo’s judgment, it appears that the “compelling reasons”

that moved the Court in this instance to raise and decide the constitutionality of the

common law defence of reasonable and moderate chastisement, were as follows:

31.1. the Court’s opinion that “a determination of the issue will have important

practical implications for how the State deals with charges of assault involving

parents and their children in other cases. It is important for the State, and for

parents who may be implicated in the future, to know whether the common-law

defence is still available to an accused person”41 (“the first reason”);

31.2. the Court’s “constitutional obligation to develop the common law to bring it in

line with the values that underlie our Constitution”42, and the Court’s opinion that

“children’s rights would continue to be placed in potential jeopardy unless and

until the Legislature took action” which would be contrary to section 28(2) of the

38 See for e.g. CRC Preamble and articles 2, 5, 14 and 18; ACRWC articles 18, 20 and 31; ICCPR article 18(4); Banjul Charter article 18. 39 ACRWC article 31; Banjul Charter article 29. 40 Director of Public Prosecutions, Transvaal v Minister of Justice 2009 (2) SA 2222 (CC) at [40], referred to by the Court a quo in its judgment. See Record, p 40 at footnote 2. 41 Record, p 43 at para [26]. 42 Record, p 43 at para [27]. - 14 - Constitution43 (“the second reason”); and

31.3. the Court’s impression, in the absence of any “indication from the Department [of

Social Development] whether and when it will proceed to draft legislation to give

effect to the [draft National Child Care and Protection Policy] … that any

legislative intervention is still a long way off”44 (“the third reason”).

32. Regarding the first reason, we submit that the Court a quo’s apparent concern for a lack

of legal certainty on the part of the State and parents is, with respect, misplaced. Up and

until the Court’s judgment, the legal position which has applied for decades, was very

clear: parents charged with the crime of assaulting their children, would be able to rely on

the defence of reasonable and moderate chastisement to avert criminal conviction,

provided that they can prove to the court that the chastisement was indeed both

reasonable and moderate in the circumstances. Our law is very clear that where

chastisement exceeds the bounds of reasonableness and moderation, the defence does not

come to parents’ assistance who will be found guilty of assault and convicted accordingly

(as indeed happened in the case of the fourth respondent).

33. Regarding the second reason, the power of the Court a quo, in terms of s 39(2) of the

Constitution, to develop the common law, is not challenged. What is challenged however,

is the way in which the Court a quo went about doing so45 on the assumption it was

necessary to do so.

43 Record, p 44 at para [28]. 44 Record, p 45 at para [29]. 45 Record, p 249 at para 25. - 15 - 34. In Masiya v Director of Public Prosecutions (Pretoria) and Another (Centre for Applied

Legal Studies and Another, Amici Curiae)46, this honourable court held that the common

law should be developed in an incremental fashion as the facts of each case require.

35. We submit, in the first instance, that having found that “the determination of the

constitutional issue is not necessary to dispose of the appeal”47 (in circumstances where

any declaration of constitutional invalidity of the defence would in any event only apply

prospectively), the Court ought to have disposed of the appeal without determining the

constitutional issue and erred in undertaking this task nonetheless.48

36. Secondly, having found that the trial court was correct in finding the appellant guilty of

assaulting his minor son (and dismissing his purported reliance on the defence of

reasonable and moderate chastisement, in circumstances where his actions were neither

reasonable nor moderate), it was not necessary nor justifiable for the Court to venture

into the constitutional question.49

37. Further, in Carmichele v Minister of Safety and Security50, this honourable Court held

that where it is necessary, having regard to the objectives in s 39(2) of the Constitution, to

develop the common law, it has to be done in the most appropriate way that least

infringes on other constitutional rights, and with a view to finding the best solution.

38. We submit that, to the extent necessary, and given that the Court a quo was dealing with

46 2007 (5) SA 30 (CC) at paras [31] and [32]. 47 Record, p 41 at para [22]. 48 Record, p 99 at para 32.1.1 49 Record, p 99 at para 32.1.2 50 2001 (4) SA 938 (CC) at para [40]. - 16 - a defence as opposed to a common law test for instance, the most appropriate way to

have dealt with the issue and developed the common law (as opposed to a radical change)

and with least infringement on other constitutional rights, would have been to (direct

Parliament to) develop clearer definitions of what “reasonable” and “moderate” means

(i.e. a “calibration approach”), rather than abolishing the age old common law defence of

reasonable and moderate chastisement altogether which has also stood through the

approximately 24 year period of the Constitution.51

39. Regarding the Court a quo’s third reason, we submit that absent “any indication from the

Department of Social Development whether and when it will proceed to give effect to [the

draft policy put up by the Department]”52, the Court erred in jumping to the conclusion

that that necessarily meant that “any legislative intervention is still a long way off”. Time

and fact have shown this error manifest.

40. As has been addressed in submissions to this honourable Court prior to these

proceedings, less than a year later, a draft Bill53 has since been issued by the Department

of Social Development (DSD) for comment, and will after Cabinet approval be tabled

before Parliament.

41. We submit that the issue of reasonable and moderate chastisement, like other engaging

issues which have the potential to fundamentally change the fabric of the common law54,

should ideally be decided by Parliament, as the democratically elected representatives of

51 Record, p 100 at para 32.1.3.2 52 Record, p 45 at para [29]. 53 The Draft Children’s Third Amendment Bill. - 17 - the people of the country as a whole, and the Court erred in not applying judicial

restraint55 instead straying into the domain of Parliament, as the major engine for law

reform56, in this regard – particularly in the prevailing circumstances where the Ministry

of Social Development, as explained in its affidavit placed before court, had already put

out a draft policy in this regard, and the issue was making its way to Parliament.57

42. We submit that the criminalisation of reasonable and moderate chastisement, will have a

severe impact on the (volume of) work of: the Police, social workers, the courts and

others involved in child protection, and inevitably divert their valuable but overstretched

time and resources away from those children who are genuinely at risk of abuse. This is

an important aspect which Parliament will no doubt (have to) consider when the Bill –

including the proposed abolition of the defence of reasonable and moderate chastisement

- comes before it.

43. The Court a quo’s judgment has effectively hijacked the legislative process, and

compromises the ability of Parliament as the elected representatives of the people of

South Africa, and the major engine for law reform, to debate and determine the issue. It

presents Parliament (and ultimately, the 55 million people of South Africa, many of

whom hold to a very different worldview to that espoused by the judgment of the Court a

quo) with a potential fait accompli on the issue instead.58

54 Mighty Solutions CC t/a Orlando Service Station v Engen Petroleum Ltd & Another 2016 (1) BCLR 28 (CC) at paras [39] – [44]; 2007 (5) SA 30 (CC); Masiya at paras [31] and [33]. 55 2007 (5) SA 30 (CC); Masiya at para [33], referring to Carmichele and R v Salituro, wherein it was found that “there are significant constraints on the power of the judiciary to change the law”. 56 2001 (4) SA 938 (CC); Carmichele at para [36]; 2007 (5) SA 30 (CC); Masiya at paras [31] and [33]. 57 Record, p 100 at para 32.1.4. 58 Record, p 246 at para 16. - 18 - 44. It is no good to argue, as the CCL amici do, that “Parliament will always have the last

word on law reform, and if the legislature is unsatisfied with the way that any court

develops the common law, it is able to pass any law it deems fit, provided such law is

constitutionally compliant”59 (our emphasis). Quite clearly, in terms of the Court a quo’s

judgment, the only “constitutionally compliant” option is the complete abolition of the

common law defence. This leaves Parliament’s hands effectively influenced if not tied to

consider any other options.60

45. Judicial overreach cannot be justified by the argument that South Africa has an

international “obligation” to abolish reasonable and moderate chastisement. As we will

show below, and by the CCL amici’s own admission61, while certain international

agencies of the United Nations may be in favour of abolition, there is in fact no legal

obligation on South Africa to do so.

46. There was no compelling reason on the facts of the case, or put up by the CCL amici or

the Court a quo, that the court could not delay in dealing with the issue.

47. Finally, we submit that the Court a quo misdirected itself in its application of the case of

Minister of Justice and Others v Estate Stransham-Ford62. It is correct, as noted by the

Court, that the relief sought by the applicant in that case, was personal to him, that the

entire cause of action died with him when he died and that in those circumstances, the

59 Record, p 208 at para 68, and p 215 at para 94. 60 Record, p 252 at para 31.3 61 Record, p 211 at para 77. 62 2017 (3) SA 152 (SCA). - 19 - SCA found that there was no longer a triable issue for determination by the court.63 The

Court a quo appears to have dealt here with paragraphs 20 to 22 of the SCA judgment.

However, the point that FOR SA made before the Court a quo, and which the Court a

quo appears to have disregarded, is a more general point made by the SCA at paragraph

101 in that case, namely that it is desirable to “give effect to the proper role of Parliament

in a society where the doctrine of the separation of powers has application. Lobby groups

could then make their voices heard and a proper debate and process of reflection could

occur. In general, whilst recognising the role that the Constitution confers upon the

courts, it is desirable in my opinion that issues engaging profound moral questions

beyond the remit of judges to determine, should be decided by the representatives of the

people of the country as a whole.”64 (our emphasis).

48. In all the circumstances, we submit that there were no “compelling reasons” for the Court

a quo – in the interest of justice – to raise and decide the issue, and that the judgment

should be set aside for this reason alone.

WHETHER THE DEFENCE CONTRAVENES INTERNATIONAL OBLIGATIONS?

49. The Court a quo found that “it is time for our country to march in step with its

international obligations under the CRC by recognising that the reasonable chastisement

defence is no longer legally acceptable under our constitutional dispensation”.65 (our

emphasis)

63 Record, p 42 at para [24]. 64 Judgment, para [101]. (See FOR SA’s submissions to the Court a quo, para 24). 65 Record, p 72 at para [85]. - 20 - 50. While it is correct that South Africa has ratified and is therefore bound by the provisions

of the UN Convention on the Rights of the Child (CRC), we highlight that the CRC is

silent on the issue of physical correction. (The same is true for the African Charter on the

Rights and Welfare of the Child (ACRWC), which is also referred to by the Court a quo.)

51. In so far as the Committee on the Rights of the Child (who has been charged with

oversight of the CRC) has expressed the opinion66 that physical chastisement is a “cruel”

or “degrading” form of punishment, and recommended the abolition of physical

chastisement in the home, it is trite law that comments issued by treaty committees are

just that – comments, and are not legally binding on State parties to the CRC, including

South Africa. This is not disputed by the CCL amici.67

52. For this reason, physical chastisement remains legal in well-developed democracies such

as Australia, Canada and the UK68 (all of whom are also parties to the CRC) as well as

the USA (who is not a State party).69

53. With regard to Canada specifically, whose “framework of … rights legislation is not

much different from ours”70 and whose Canadian Charter jurisprudence continues to have

great influence on South African constitutional law, it is insightful to have regard to the

majority decision in Canadian Foundation for Children, Youth and the Law v Canada

66 General Comment 8, 2006. See Record, p 57 at paras [54]. 67 Record, p 211 at para 77. 68 In the UK (a State party to the CRC), smacking is legal provided it does not leave a mark that is more than temporary reddening of the skin on the body. 69 Record, p 105 at para 34.1 and 34.4 70 S v Williams 1995 (3) SA 632 (CC) at para 30. - 21 - (Attorney General)71. In this case:

53.1. the applicants challenged a provision of the Canadian Criminal Code that justified

the reasonable use of force by parents for purposes of correcting their children;

53.2. the Supreme Court refused to issue a declaration of constitutional invalidity, and

held that the impugned provision did not infringe the right to life, liberty and

security of person because it did not offend a principle of fundamental justice;

53.3. the Supreme Court considered the CRC and concluded that it did not explicitly

require State parties to ban all physical chastisement of children; and

53.4. the Supreme Court appears found weighty the view that complete abolition of

physical chastisement was an unwarranted intrusion into family life and that it

would “expose the family to the incursion of state law enforcement for every

trivial slap or spanking”72, with the concomitant harm to the child resulting from

his / her parents being charged and pulled into the criminal justice system. (We

return to this later herein).

54. We submit that the fact that the Canadian judgment was “handed down in 2004, prior to

the Committee on the Rights of the Child’s General Comments”, as contended for by the

CCL amici73, is immaterial. Despite various efforts over the years to change Canadian

71 2004 SCC 4. 72 Judgment, para 60. 73 Record, p 207 at para 62. - 22 - law in this regard74, the judgment – and the defence – stand to this day.75

55. Reasonable and moderate chastisement remains legal in most of the world, including

most countries in Africa. At most only six African countries have banned physical

correction. Six out of 54 countries can hardly be described as an international / regional

trend.76

56. In view of the a foregoing, we submit that the Court a quo erred by effectively finding

that South Africa has an “international obligation” in terms of the CRC77, to abolish

physical correction in the home. While, as a State party, South Africa has an obligation to

take measures (including legislative measures) to protect children from “violence, injury

or abuse”78 - and has done so inter alia by adopting the Children’s Act, 2005 and the

Domestic Violence Act, 1998, both of which make child abuse or violence against

children illegal, and protect children against such instances – the CRC does not oblige

South Africa to abolish physical correction in the home.

WHETHER THE DEFENCE VIOLATES THE CONSTITUTION?

57. The Constitution, likewise, is silent on the issue of physical correction.

58. In terms of the judgment of the Court a quo however, the common law defence of

reasonable and moderate chastisement is now found to be incompatible with the

74 There have been various legislative attempts to have section 43 of the Canadian Criminal Code repealed or amended, with at least 17 private member’s bills being tabled in Parliament since 1994, the latest one in 2017. None have yet succeeded. See https://www.lawnow.org/the-law-of-spanking/ 75 Record, p 251 at para 30. 76 Record, p 251 at para 29. 77 Record, p 72 at para [85]. - 23 - Constitution, and more particularly:

58.1. the right to human dignity (s 10);79

58.2. the right to equal protection under the law (s 9(3));80

58.3. the “section 12 rights”, including the right to be free from all forms of violence

from either public or private sources (s 12(1)(c));81 the right not to be treated in a

cruel, inhuman or degrading way (s 12(1)(e));82 and the right to bodily and

psychological integrity (s 12(2))83;

58.4. the “section 28 rights”, including the right of children to be protected from

maltreatment, neglect, abuse or degradation (s 28(1)(d));84 and the right to and the

constitutional principle that a child’s best interests are of paramount importance in

every matter concerning the child (s 28(2)).85

59. We submit that the Court’s findings in this regard all stem from its erroneous equating, or

conflating, of reasonable and moderate correction with physical violence or abuse. Once

it is assumed that all physical correction – no matter how light or well-intended – is

“harmful”86, it follows that it is also assumed to be an infringement of dignity, and all the

other rights mentioned above. If however physical correction, reasonably and moderately

78 Article 19(1). 79 Record, p 65 at para [71] – p 66, at para [73]. 80 Record, p 66 at para [74] – p 67, at para [76]. 81 Record, p 52 at para [43], and p 64 at para [69]. 82 Record, p 52 at para [43]. 83 Record, p 64 at para [69] – p 65 at para [70]. 84 Record, p 52 at para [43]. 85 Record, p 44 at para [28], p 53 at para [45]. - 24 - applied, is not “harmful” per se, the entire judgment unravels.

60. First in regard to dignity (s 10):

60.1. The contention is not that children don’t have this right or that it should not be

protected. Neither is the contention that parents have greater dignity than children.

60.2. What is contended, is that the Court a quo erred in finding that chastisement in the

home, always and in all circumstances, violates (or has the potential to violate)

the dignity of a child87. In fact, quite the opposite is true: loving parental

chastisement applied for the benefit of the child and in his/her best interest, gives

dignity to the child.88

61. Secondly in regard to equality (s 9):

61.1. We submit that the Court a quo erred in finding that adults and children should be

treated alike, and that for that reason physical chastisement of children in the

home should be abolished.

61.2. Equality does not mean equal treatment, and the law differentiates between

children and adults in a number of circumstances in order to protect children

(often from themselves).89

86 For e.g. Record, p 55 at para [50], and p 56 at para [52]. 87 Record, p 65 at para [72]. 88 Record, p 111 at para 37.7 to p 112 at para 37.8; and p 255 at paras 38 – 39. 89 Record, p 111 at para 37.6 - 25 - 61.3. The Court erred in finding, effectively, that it is problematic that the common law

defence treats child “victims” of “assault” by their parents differently to adult

victims of assault.90 Firstly, where reasonable and moderate chastisement for the

purpose of discipline is applied, it is not “assault”. Secondly, the comparison is

misplaced, because while parents (adults) are not responsible for other adults,

they are responsible for their children and for raising children who are responsible

citizens who know the difference between right and wrong and appreciate the

consequences of their actions.91

62. Third in regard to the “section 12 rights”:

62.1. we refer the Court to the international and foreign jurisprudence mentioned above

in terms whereof reasonable and moderate chastisement per se has been held not

to be “cruel, inhuman or degrading”;

62.2. we distinguish the factors that present in the context of juvenile offenders (S v

Williams) and the school (Christian Education), from the home. (We return to this

hereunder);

62.3. we submit that while it is correct that the Children’s Act, 2005 defines “abuse” as

“any form of harm or ill-treatment deliberately inflicted on a child”, the Act stops

short of specifically equating physical correction with “abuse” or “violence” and

that the Court a quo in this instance – without any substantiation therefor in social

or psychological science, or in law – stretched the definition of “abuse” so as to

90 Record, p 66 at para [74]. - 26 - include reasonable and moderate correction.92 (Where correction falls outside the

bounds of what is reasonable and moderate, it would be “abuse” as contemplated

by the Act). Likewise, the Court erred in interpreting and effectively re-defining

the definition of “domestic violence” in the Domestic Violence Act, 1998 to

specifically include reasonable and moderate correction.93

63. Lastly, in regard to “section 28 rights”, and in particular the Court a quo’s application of

the “best interest of the child” standard (s 28(2)), we submit that while it is correct that

children hold constitutional rights of their own (i.e. not through their parents), this does

not mean that children’s rights cannot be limited and the Court erred in finding

alternatively implying this to be the case.94 In this regard and in particular, we submit

that:

63.1. the Court erred in applying the principles of S v M95 automatically to the present

case.96 The context is entirely different and presents factors that are completely

different to the home context. Also, S v M is only authority for the proposition

that South Africa, having ratified the CRC, is bound by the provisions of the CRC

itself – not the General Comments on the CRC;

63.2. the Court erred in treating the concept of “best interests of the child”, which s

28(2) the Constitution provides to be “of paramount importance in every matter

concerning the child”, to mean that the rights/interests of the child are absolute,

91 Record, p 111 at para 37.7 92 Record, p 55 at para [50]. 93 Record, p 56 at para [52]. 94 Record, p 109 at para 37.2 95 2008 (3) SA 232 (CC). - 27 - overarching other rights and not capable of limitation. S v M97 confirms that this

is not so. Like all other rights in the Bill of Rights, children’s rights have to be

considered in relationship to other rights, which might require that their ambit be

limited98 (completely or to some extent); and

63.3. the Court erred in treating the concept of “best interests of the child” as if it is an

inflexible and pre-determined formula that applies generally, and exactly the

same, to all children. In S v M, the Court confirmed that the standard should be

flexible as individual circumstances will determine which factors secure the best

interests of the child. A truly principled child-centered approach requires a close

and individualised examination of the precise real-life situation of the particular

child involved. To apply a pre-determined formula for the sake of certainty,

irrespective of the circumstances, would in fact be contrary to the best interests of

the child concerned.99 In other words, while reasonable and moderate correction

may not be in the best interest of one child, it may very well be in the best interest

of another. A balancing exercise has to be undertaken on a case-by-case basis. It

becomes a matter of context and proportionality.100

64. In so far as the Court a quo is of the opinion that the common law defence introduces a

level of arbitrariness,101 we submit that this is not the case. While it is correct that the

common law does not lay down strict guidelines as to what constitutes reasonable and

96 Record, p 61 at para [62]. 97 2008 (3) SA 232 (CC). 98 S v M 2008 (3) SA 232 (CC) at paras [26] and [37]. 99 S v M 2008 (3) SA 232 (CC) at para [24]. 100 S v M 2008 (3) SA 232 (CC) at para [37]. 101 Record, p 63 at para [68]. - 28 - moderate correction, it does (as acknowledged by the Court) identify factors that should

be taken into consideration in each case in order to determine what is reasonable. In the

circumstances, it is not “arbitrary” and the Court erred in finding that it is.

65. In the alternative, we submit that had the Court a quo referred the matter to Parliament

(who, the CCL amici themselves admit, “always have the last word on law reform”102) to

develop clearer definitions or boundaries for what could be considered “reasonable” or

“moderate” (i.e. a “calibrated approach”), the element of arbitrariness which concerned

both the Court and the CCL amici could have been removed, or at least significantly

reduced.103

RELEVANT CASE LAW

66. The Court a quo correctly pointed out that to date, our courts have had two occasions to

consider the constitutionality of physical correction of children, namely in S v Williams104

(in the context of judicially sanctioned punishment) and Christian Education South

Africa v Minister of Education105 (in the context of schools).

67. We submit however that the Court erred in finding that there is not sufficient a difference

between judicially sanctioned punishment, punishment in schools, and correction in the

home, alternatively gave no or inadequate weight to this difference.106

102 Record, p 208 at para 68. 103 Record, p 250 at para 27. - 29 - 68. In S v Williams:

68.1. the only issue before the Court, was the corporal punishment of juvenile offenders

- not schools, and not homes;

68.2. in the specific context of the criminal justice system, the court found corporal

punishment to be “cruel, inhuman or degrading” for the following reasons:

68.2.1. the manner in which corporal punishment was administered;

68.2.2. section 294 of the Criminal Procedure Act107 which provided for

juvenile whipping, did not set a minimum age for the punishment;

68.2.3. likewise, the Act did not set a limit to the number of times a juvenile

may be sentenced to receive strokes;

68.2.4. the institutionalised nature of the procedure that involves an element of

cruelty in the system that sanctions it, i.e. it is violence permitted by the

law, ordered by the judicial authorities of the State and carried out by

the police authorities of the State resulting in the offender being “treated

as object in the power of the authorities”108;

68.2.5. the act is impersonal, executed by a State employee who is a virtual

stranger to the offender, at the instance of the State, in alien

104 1995 (3) SA 632 (CC). 105 2000 (4) SA 757 (CC). 106 Record, p 105 at paras 35.1 – 35.2 107 Act 51 of 1977. 108 Judgment, paras 33 and 90. - 30 - surroundings. This, the court found to be the “key feature distinguishing

it from other punishments”109; and

68.2.6. the institutionalised character of this violence is further compounded by

the whole aura of official procedure attending the punishment110;

68.3. the above factors on which the case was decided, do not present in the home

context. Consequently, we submit with respect that the Court a quo’s purported

reliance on this case in support of its claim that corporal punishment in the home

context likewise is unconstitutional, is misplaced.

69. In similar vein, Christian Education is not authority for the abolition of physical

punishment in the home context (and may in fact even support the retention thereof) for

the following reasons:

69.1. the sole issue that the Court had to decide in this case, was the constitutionality of

corporal punishment in schools;

69.2. the Court itself made it clear that there is indeed a great distinction:

“The present matter does not oblige us to decide whether corporal punishment by parents in the home, if moderately applied, would amount to a form of violence form a private source. Whether or not the common law has to be developed [under s 8(3) of the Constitution] so as to further regulate or even prohibit in the home, is not an issue before us ... We cannot, however forget that ... corporal punishment administered by a teacher in the institutional environment of a school is quite different from corporal punishment in the home

109 Judgment, para 89. 110 Judgment, para 33. - 31 - environment. Section 10 [of the Schools Act] grants protection to school children by prohibiting teachers from administering corporal punishment. Such conduct happens not in the intimate and spontaneous atmosphere of the home, but in the detached and institutional environment of the school.”111 (our emphasis);

69.3. the particular factors that were present in the context of the school (and that

persuaded the Court to abolish corporal punishment in that context) included:

69.3.1. the detached and institutional environment of the school112; and

69.3.2. the fact that the ban on corporal punishment was part of a

comprehensive process of eliminating State-sanctioned use of physical

force as a method of punishment in institutional settings, and thus

served a symbolic, moral and pedagogical purpose;113

69.4. what is more, the judgment recognises that parents have “a general interest in

living their lives in a community setting according to their religious beliefs, and a

more specific interest in directing the education of their children114”, and

elsewhere, “a general right and capacity to bring up their children according to

their Christian beliefs”115. For this reason, the dignity of ... parents may be

negatively affected when the State tells them how to bring up and discipline their

111 Judgment, paras 48-49. 112 Judgment, para 49. 113 Judgment, para 50. 114 Judgment, para 15. 115 Judgment, para 38. - 32 - children and limits the manner in which they may express their religious

beliefs.”;116

69.5. in this particular instance however and given the specific context wherein the corporal punishment took place (namely the school), the Court found that:

“while they may no longer authorise teachers to apply corporal punishment in their name pursuant to their beliefs, parents are not being deprived by the Schools Act of their general right and capacity to bring up their children according to their Christian beliefs. The effect of the Schools Act is merely to prevent them from empowering the schools to administer corporal punishment”.117 As such, “[t]he parents are not being obliged to make an absolute and strenuous choice between obeying a law of the land or following their conscience. They can do both simultaneously. What they are prevented from doing, is to authorise teachers, acting in their name and on school premises, to fulfil what they regard as their conscientious and biblically-ordained responsibilities for the guidance of their children.”118

69.6. The Court accordingly found that a prohibition on corporal punishment in the

school context, did not violate parents’ religious freedom as they were not the

ones who were being prohibited (by the Schools Act) from administering corporal

punishment. Conversely, and by implication, if corporal punishment were to be

prohibited in the home however, parents would be put to the choice of obeying

the law (which prohibits corporal punishment) or obeying their conscience (which

demands or allows for corporal punishment), thereby compromising their right to

religious freedom.

116 Judgment, para 15. 117 Judgment, para 38. - 33 -

UNREASONABLE AND UNJUSTIFIABLE LIMITATION OF PARENTAL RIGHTS

70. The rule of law, a foundational value of the Constitution, also requires that the dignity

and authority of parents be upheld. This is crucial, as the capacity of parents to carry out

their functions in the family and society depends upon it.

71. Parents have the fundamental right – in terms of international and regional treaties which

South Africa has signed, as well as sections 15 and 28(1)(b) of the Constitution read with

the definition of “care” in s 1 of the Children’s Act, 2005119 - to raise their children in

accordance with their moral, philosophical or religious convictions.

72. We submit that the removal of the common law defence constitutes an unreasonable and

unjustifiable limitation of parental and family rights in terms of the South African

Constitution and international treaties to which South Africa is a State party.

73. While it is correct that family life is not expressly protected in the Constitution, the Court

erred in not taking into account (as required in terms of s 39(2) of the Constitution), the

various international human rights treaties that South Africa has ratified (and that are

therefore binding on the country) and that protect the family as the natural unit of society,

including the International Covenant on Civil and Political Rights (ICCPR) and the

African Charter on Human and People’s Rights (Banjul Charter). Both these treaties

provide that the State must ensure that recognition is given to the principle that the

118 Para 51. 119 Section 1 of the Act defines “care” as including the parent’s right to guide and direct the education and upbringing of the child.

- 34 - primary responsibility for the upbringing and development of children, lies with the

parents.120

74. The Court also erred in not taking into account s 28(1)(b) of the Constitution, which

states that “every child has the right to … parental care”, which includes the ability and

responsibility of parents to effectively discipline their children according to their moral,

philosophical or religious beliefs and in their children’s best interest. Section 28 requires

the law to make best efforts to avoid, where possible, any breakdown of family life or

parental care that may threaten to put children at increased risk121, as we contend

removing the defence will do.122

75. It also unreasonably and unjustifiably limits the fundamental right to freedom of religion,

in that:

75.1. The Constitution does not have a hierarchy of rights, and each instance requires a

balancing exercise to be done to decide which right, in that particular instance,

should rank higher.

75.2. While it is so that children’s rights are not, as a matter of principle, subordinate to

religious rights, the Court erred in finding, alternatively implying, that children’s

rights, always and in all circumstances, rank higher than the constitutional right to

religious freedom123.

120 Record, p 103 at para 33.2 121 S v M 2008 (3) SA 232 (CC) at para [20]. 122 Record, p 103 at para 33.3. 123 Record, p 71 at para [84]. - 35 - 75.3. The Court erred in finding that, because the removal of the defence will not

prevent religious believers from disciplining their children (who “may have to

consider changing their mode of discipline”), that is a justifiable limitation on the

rights of parents.124

75.4. The Court erred in finding that “this is a case where … it is permissible to require

religious parents who believe in corporal punishment to be expected to obey the

secular laws, rather than permitting them to place their religious beliefs above

the best interest of the children”125, for at least the following reasons:

75.4.1. there is no such thing as “secular laws” - common law or otherwise. Up

to now the common law has allowed reasonable and moderate

chastisement;

75.4.2. in so far as the Court’s reference to “secular laws” is intended as a

reference to the Constitution, the Constitution specifically guarantees

religious freedom (including the right to practise one’s religious, moral

or philosophical convictions and beliefs) as a fundamental human right

(s 15);

75.4.3. the Court erred in finding that parents who practise reasonable and

moderate chastisement, are placing their religious beliefs above the best

interest of the children. For many religious (and non-religious) parents,

124 Record, p 71 at para [84]. 125 Record, p 71 at para [84]. - 36 - reasonable and moderate chastisement is acting in the best interest of

their children;

75.4.4. finally, the Court a quo effectively interpreted the Scriptures to say that

any parent who believes that these permit (if not mandate) them to use –

reasonably and moderately - some measure of physical discipline in

raising their children, is in error in their belief and/or if they continue to

practise it, they will be dealt with by the criminal law. This is a clear

interference with doctrinal belief and an erosion of religious freedom.

There is no other way that this can be read than a “censorship” of the

Scriptures (effectively dictating to believers how they should view or

practise those Scriptures), and an entanglement in matters of belief (i.e.

doctrine).126

76. In this regard, we submit that the Court erred in finding, alternatively implying, that

South Africans live in a “secular world”.127 South Africa is not a “secular” state – it is a

constitutional state that recognises freedom of religion, including the freedom to live out

one’s beliefs,128 as a constitutional guarantee.

126 Record, p 257 at para 43. 127 Record, p 52 at para [44]. 128 S v Lawrence; S v Negal; S v Solberg 1997 (10) BCLR at para [92]. - 37 - UNINTENDED CONSEQUENCES

77. The Court erred in finding that “the removal of the defence will not open up (religious or

well-meaning) parents to a greater threat of criminalisation and removal of their

children”129.

78. Banning physical correction, will inevitably set ordinary loving parents up and turn them

into criminals with a life-long record for child abuse (of their own children!). The

slightest touch in chastisement could become grounds for an assault charge. This is

particularly true of divorce cases, where one parent could easily use another parent’s

loving parental discipline against him/her in order to for e.g. obtain primary residence of

the child(ren) or the suspension or removal of parental rights in terms of the Children’s

Act.

79. While it may be that the Children’s Act does not have the (express) objective of

criminalising parents, both the Court a quo130 and the CCL amici131 accept that it is a real

possibility that the judgment may result in the prosecution and conviction of well-

meaning parents, who love their children, only want what is best for them and who

believe that they are in fact acting in the best interest of their child by reasonably and

moderately correcting them when necessary, and that this is “a legitimate concern”.132

80. As a result of the criminalisation of reasonable and moderate chastisement, children

could be removed from their parents merely on the suspicion of having been smacked.

129 Record, p 71 at para [84]. See also record, p 69 at para [81]. 130 Record, p 69 at para [81]. 131 Record, p 225 at para 127. - 38 - 81. This is already happening in other countries where physical correction has been banned,

e.g. Sweden which was the first country to ban physical correction in the home. Also in

New Zealand, a ban on physical chastisement has resulted in the criminalisation of

parents and removal of children from their family homes.133

82. In so far as it is suggested that parents who make themselves guilty of reasonable and

moderate chastisement of their children (and therefore, in terms of the Court a quo’s

judgment, the crime of assault), will not be subject to the criminal justice system but will

be dealt with in terms of the Children’s Act instead134, this is not correct – as the facts in

the present case (i.e. the fourth respondent’s conviction by the Magistrate’s Court, giving

rise to the appeal before the Court a quo) clearly show. In this case, the fourth respondent

was not dealt with in terms of the provisions of the Children’s Act, but was prosecuted

for, and convicted of, the crime of assault with intent to do grievous bodily harm (in

respect of his 13-year old son) by a criminal court. There is no reason to believe that

parents who reasonably and moderately chastise their children, and who – because of the

Court a quo’s judgment – are now guilty of “assaulting” their children, will not be dealt

with in similar fashion (i.e. in terms of the criminal law).135

83. While it is correct that the Children’s Act makes provision for the diversion of cases to

the children’s court,136 the Court erred in implying that this is almost a given and that, for

that reason, criminalisation is not a real threat. Diversion (from being charged and

prosecuted in the criminal courts), generally only takes place where the accused makes a

132 Record, p 225 at para 127. 133 Record, p 113 at para 38.6 134 Record, p 256 at para 42. - 39 - full admission to the crime (in this instance, of assault against his/her own children) and

shows remorse – and will therefore not be an option for parents who sincerely believe

that they are acting in the best interest of their children when reasonably and moderately

chastising them, to discipline them and for their (the children’s) benefit. In any event, if

the “offender” defaults in any way (again), it is almost certain that the matter would be

reconsidered and sent to another court.

84. It does not assist the CCL amici to argue that the doctrine of “de minimus non curat lex”

would come to the aid of parents who are charged in instances of smacking where

minimal force is used.137 Such statement is contradicted by their insistence that the law is

not meant to operate in such a way that the police officer or prosecutor can make a

decision to the reasonableness of the chastisement upfront.138

85. The CCL amici argue that there is no reason “to believe that there will be a flood of

prosecutions. Parents can be charged under the current law, but this rarely occurs.”139

We submit however that there is no reason to believe that this will not be the case if the

defence is abolished, and reasonable and moderate chastisement effectively criminalised.

The reason why parents have not been charged for reasonable and moderate chastisement

under the current law, is because of the defence. If the defence is abolished, their

protection goes and they will be charged. It is common sense.

135 Record, p 114 at para 38.7 136 Record, p 71 at para [84]. 137 Record, p 226 at para 132. 138 Record, p 254 at para 36, read with Record, p 226 at para 132. 139 Record, p 226 at para 133. - 40 - CONCLUSION

86. When the Children’s Act was enacted in 2005 (more than ten years into our constitutional

democracy), Parliament was presented with the opportunity to amend the law so as to

specifically abolish reasonable and moderate chastisement. Parliament, as the elected

representatives of the people of South Africa, considered the issue but elected not to do

so.140

87. Thirteen years later, the Department of Social Development (DSD) has now again

prepared a Bill, ultimately to be tabled before and debated by Parliament, that deals with

the issue. This bears out the applicant’s case that Parliament is the appropriate forum

where the issue should be debated and decided.

88. Instead of waiting for the legislative process to run its course, the Court a quo has with

respect, effectively anticipated the process and decided and wrongly influenced the issue

for Parliament. This is with respect judicial overreach, and we respectfully submit, that

the Court a quo’s judgment should be set aside for this reason alone.

89. In all the circumstances, we submit that the Court a quo erred in finding that the common

law defence of reasonable and moderate chastisement is unconstitutional and

“prospectively” no longer applies in South African law, and we respectfully request this

honourable Court to set the judgment aside, alternatively to refer the matter to Parliament

to be dealt with accordingly.

140 Record, p 106 at para 35.5 - 41 - COSTS:

90. It is submitted that in the event that the applicant succeeds, it is entitled to costs

(including the costs of two Counsel) against the opposing State parties. In this regard, it is

submitted that it would be appropriate to direct the first and second respondents (which

opposed the applicant’s application for leave to appeal) to pay the costs of the application

jointly and severally, the one paying the other to be absolved.

91. Should the applicant, for whatever reason however, not be successful it should

nonetheless not be ordered to pay any costs, on the following grounds:

91.1. should the applicant – as a non-profit organisation working to protect and promote

the constitutional right to religious freedom and related rights - be burdened with

costs as a result of the organisation’s effort to protect the constitutional rights of

its constituency (and indeed the public at large), it would have a “chilling effect”

on (other) parties contemplating asserting their legal, and constitutional, rights;

91.2. the outcome of the application bears not only on the interests of the parties that

are presently before the Court, but on the rights of all parents and children in

South Africa, and enriches the general body of constitutional jurisprudence in this

regard.

92. The well-known Biowatch principle provides that litigants in constitutional matters ought

not to be mulcted in costs. - 42 - 93. The Biowatch principle must be interpreted broadly. This much is clear from the

relatively recent decision of the Constitutional Court in Harrielall v University of Kwa-

Zulu Natal,141 in which a decision by the High Court to order costs against a litigant

challenging the exercise of public powers, albeit expressly for her own benefit was

overturned.142

R WILLIS NL BADENHORST Chambers Sandton 5 October 2018

141 [2017] ZACC 38; 2018 (1) BCLR 12 (CC). 142 In overturning the costs order this Court held at paragraph 11 that: “Although Biowatch was decided eight years ago, it seems that the other courts are yet to embrace its principle. This is apparent from the growing number of matters that come before this Court where the issue of not applying Biowatch is raised. This is unfortunate. In Biowatch this Court laid down a general rule relating to costs in constitutional matters. That rule applies in every constitutional matter involving organs of State. The rule seeks to shield unsuccessful litigants from the obligation of paying costs to the state. The underlying principle is to prevent the chilling effect that adverse costs orders might have on litigants seeking to assert constitutional rights."