Y.G. v. the State

Title:
Y.G. v. the State

Court:
High Court of South Africa, Gauteng Local Division

Date:
19 October 2017

CRC provisions:
Article 19: protection from abuse and neglect
General Comment No. 8: the right of the child to protection from corporal punishment and other cruel or degrading forms of punishment
General Comment No. 13: the right of the child to freedom from all forms of violence

Domestic provisions:
Constitution of South Africa, Sections 9, 10,12, 15, 28 and 31.
Common law defence of “reasonable chastisement”

Case summary:

Background:
A man was charged with two counts of assault with the intent to do grievous bodily harm. The first charge was that he had assaulted his 13-year-old son. The level of violence was disputed, but the boy’s account and the father’s both stated that the father had suspected that his son had been watching pornography and had lied about doing so and so hit him several times. The second charge was that the man had assaulted his wife later the same day. The man was convicted of assault and appealed against his conviction. During the appeal, the court agreed to rule on whether the defence that violence was used against a child as “reasonable chastisement” for the purposes of discipline was unconstitutional.

Issue and resolution:
Corporal punishment. The defence of “reasonable chastisement” for assault committed by a parent against a child violates the child’s constitutional rights.

Court reasoning:
The court found that by permitting a degree of violence against children, the “reasonable chastisement” defence violated children’s right to bodily and psychological integrity under Section 12 of the Constitution. The court also found that the defence violated the child’s right to dignity under sections 10 and 28 of the constitution on two grounds. First, if permitting violence against a child violates the right to physical integrity it must involve a measure of degradation and loss of dignity. Second, that where an adult would be protected from a level of violence that the child is not, the child has been treated as a second-class citizen.

This reasoning was closely tied to the court’s finding that there had been a violation of the right to equal protection of the law, under section 9(1) of the Constitution. The court considered that permitting reasonable chastisement of children, but not adults, singled out a more vulnerable group deserving of special protection whose best interests are of paramount importance under the Constitution.

The court also found that there was an element of arbitrariness within the defence of reasonable chastisement that was out of step with the child-centred model of South Africa’s constitutional rights. Case law on the defence has established factors that should be taken into consideration in deciding whether the level of violence was justifiable, but no clear standards to be applied.

The court moved on to consider whether these infringements could be justified under the limitation provisions of the Constitution. This court considered that the limitation could only be justified in terms of its purpose, importance and effect and must take into the account of less restrictive means of achieving that purpose. The court found that the defence creates an “off-limits” zone of State involvement that was not conducive to facilitating a child-focused justice and protection system for children. The court rejected arguments that the abolition of the defence would result in the criminalisation of parents and increased involvement of social services, as this approach would not have been in line with the relevant law in this area. The court also rejected arguments that reasonable chastisement was justified out of respect for the religious rights as parents, finding that children’s rights are not subordinated to the religious views of their parents.

The court also ruled on the appeal of the father against his conviction for both assaults. It found that the trial court had acted properly in finding that the level of violence inflicted on the man’s son exceeded “reasonable chastisement” and that the court had not erred in finding him guilty of assault against his wife.

Excerpts citing the CRC and other relevant human rights instruments:

53. By ratifying the CRC, South Africa bound itself to comply with the following protections afforded to children:

53.1 to take all legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, or maltreatment while in the care of parents;

53.2. To take all appropriate measures to ensure that school discipline is administered in a manner consistent with the child’s human dignity and in conformity with the Convention;

53.3. To ensure that no child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment.

54. While the CRC does not expressly deal with parental physical chastisement, the CRC Committee has over the years issued General Comments laying down guiding principles for contracting states. In General COmment 8, in 2006, the Committee stated that corporal punishment is incompatible with the CRC. It constitutes cruel and degrading treatment. All children have the right to be free from all forms of cruel and degrading treatment. It stated further that state parties were expected to include in their periodical reports information on the measure and steps taken to eradicate corporal punishment.

55. General Comment 13 was issued by the Committee in 2011 to address the extent and intensity of violence exerted on children. Its recommendations including the following:

55.1. No violence against children is justifiable, and is preventable.

55.2 A child rights-based approach to child caregiving and protection requires a paradigm shift towards respecting and promoting the human dignity and physical and psychological integrity of children as rights-bearing individuals

55.3. The concept of dignity requries that every child is recognised, respected and protected as a rights holder and as a unique and valuable human being with individual personality, distinct needs and privacy.

55.4. The Committee recognised the primary position of families in caregiving and protection and in the prevention of violence, but the Committee also recognised that the majority of violence takes place in the context of families and therefore intervention and support is required when children become victims.

55.5. Criticall, the Committee noted that national laws should “in no way erode the child’s absolute right to human dignity and physical and psychological integrity by describing some forms of violence as legally or socially acceptable. (my emphasis)

56. As recently as October 2026, the COmmittee had cause to comment on South Africa’s second report on the implementation of its obligations under the CRC. The Committee made the following pertinent remarks:

56.1 It was “concerned that corporal punishment in the home has not been prohibited and is widely practiced”

56.2. With reference to the Committee’s General Comment No. 8, it recommended that South Africa: ‘Expedite the adoption of legislation to prohibit all forms of corporal punishment in the home”. (my emphasis)

85. For all of these reasons, I find that the limitations imposed by the reasonable chastisement defence are not constitutionally justifiable under section 36. 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. In doing so we will hardly be at the forefront of legal developments in the international community. Almost half of African states have either committed to abolishing corporal punishment in full (i.e. including in the home) or have expressed a clear commitment to doing so. South Africa is one of those that has made the commitment although, as I indicated earlier, the process of doing so through legislation is not well advanced. The courts have a duty to take the necessary steps to develop the common law where it infringes constitutional rights. In my view, that duty will be served in this case by an order declaring, with prospective effect, that the common-law defence of reasonable chastisement is no longer applicable in our law.

CRIN comments:
CRIN believes this decision is consistent with the Convention on the Rights of the Child. The Convention requires States to take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence and prohibits all cruel, inhuman and degrading treatment. The Committee on the Rights of the Child has explicitly recognised that all forms of corporal punishment of children violate these rights under the CRC.

Citation:
Case No. A263/2016

 

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Date: 
Thursday, October 19, 2017 - 12:00
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