Parents, until recently, have however been able to raise the common law special defence of moderate or reasonable chastisement if criminally charged, and could if successful with such a defence, be found not guilty of assault.
In a recent ruling in the Gauteng High Court, where a minor was seriously beaten by his parent, the common law position was changed by the court, which found that the special defence of moderate or reasonable chastisement is unconstitutional and not in the best interest of children. This ruling in effect abolishes the right of parents to hit/chastise their children as it removes any special defence which parents may have used to justify them doing so.
Does this mean that a small tap on the bottom will result in a parent being criminally charged? Probably not, as the de minimis principle of our law makes it clear that the law is not concerned with trivialities. However, the judgement essentially now provides the same protection to a child as to an adult and parents can no longer claim a special defence to justify their spanking.
Parents should be aware that any form of spanking could amount to assault and should refrain from any such conduct towards their or other children in their care and consider alternative methods of discipline.
This article was first published in Phatshoane Henney Attorneys’ March 2018 newsletter.