LME3701 PORTFOLIO 2021.

HISTORICAL LEGAL RIGHTS PERTAINING TO CHASTISEMENT OF CHILDREN BY THEIR PARENTS WITHIN THE JURISDICTION OF SOUTH AFRICA by (INSERT FULL NAMES AND UNISA STUDENT NUMBER) Submitted in partial fulfilment of the requirements for the degree LLB In the SCHOOL OF LAW UNIVERSITY OF SOUTH AFRICA SUPERVISOR: (ASSIGNMENT 02: ) 2021 THEME: 1 ACADEMIC HONESTY DECLARATION 1. I understand what academic dishonesty entails and am aware of Unisa’s policies in this regard. 2. I declare that this assignment is my own, original work. Where I have used someone else’s work, I have indicated this by using the prescribed style of referencing. Every contribution to, and quotation in this assignment from the work or works of other people has been referenced according to the prescribed style. 3. I have not allowed, and will not allow, anyone to copy my work with the intention of passing it off as his or her own work. 4. I did not make use of another student’s work and submit it as my own. NAME: ……………………………………………………………………………………. SIGNATURE: ……………………………………………………………………………. STUDENT NUMBER: …………………………………………………………………… MODULE CODE: .................................................................................................... DATE: ………………………………………………………………………………. RESEARCH THEME SELECTED: ……………………….……………………………. TABLE OF CONTENTS 1. INTRODUCTION...........................................................................................................3 2. PROBLEM STATEMENT ............................................................................................... 3 3. HYPOTHESIS ................................................................................................................ 5 4. POINTS OF DEPARTURE AND ASSUMPTIONS ........................................................ 6 5. CONCEPTUALISATION OF CENTRAL RESEARCH THEMES ................................... 8 5.1 parents right of reasonable and moderate chastisement.....................................8 5.2 corporal punishment in schools..............................................................................8 5.3 alternative care..........................................................................................................8 5.4 Constitutionalism......................................................................................................9 5.5 Justice system...........................................................................................................9 6. PROPOSED CHAPTER OUTLAY ................................................................................. 9 7. PROJECTED TIME-FRAME.......................................................................................11 8. DESCRIPTION OF RESEARCH METHOLOGY.........................................................11 9. PREPARATORY READINGS....................................................................................12 HISTORICAL LEGAL RIGHTS PERTAINING TO CHASTISEMENT OF CHILDREN BY THEIR PARENTS WITHIN THE JURISDICTION OF SOUTH AFRICA 1. RESEARCH INTRODUCTION Corporal punishment in the home refers to any kind of physical force inflicted on children by a parent or guardian as a means of discipline. It is a grave concern in terms of children’s development as it violates children’s human rights to physical integrity and human dignity, as upheld by the UN Convention on the Rights of the Child (CRC), the African Charter on the Rights and Welfare of the Child (ACRWC), as well as the South African Constitution. Corporal punishment has been prohibited in educational settings, the justice system (as a punishment and as a sentence) and alternate care in South Africa. However, it is still considered legal in the home by virtue of the common law provision for caregivers to “reasonably chastise” the children in their care. 1 There are many reasons to prohibit corporal punishment of children in South Africa. These include children’s innate (and legislated) rights outlined in the South African Constitution and the Children’s Act 38 of 2005,2 and the fact that they are the last group to be legally protected from assault, despite their greater vulnerability. But perhaps the most compelling relates to reducing violence in general and gender-based violence in particular in South Africa. This research will to provide an in-depth analysis on the past and current position of the law pertaining to the chastisement of children by their parents within the jurisdiction of South African. In order to explain the current position of chastisement of children by parents in South Africa, the research will critically investigate and analyse selected provisions of the Constitution of the Republic of South Africa, the Child Justice Act,3 the cases of Freedom of Religion South Africa v Minister of Justice4 and S v YG. 5 2. PROBLEM STATEMENT The goal of this study is to examine past and present decisions pertaining to the historical evolution of the defense of justifiable chastisement. Currently, the right to chastisement is unlawful because it violates section 12 of the South African Constitution, which guarantees people's freedom and security. The Gauteng High Court ruled in 2017 in S v YG 2018 (1) SACR 64 (GJ) that the defense of reasonable chastisement is unconstitutional because it violates (among other things) s12 of the South African Constitution, which safeguards the person's freedom and security. That decision was appealed to the Constitutional Court, which 1 Section 12 of the Constitution, 1996. 2 Children’s Act 38 of 2005. 3Child Justice Act 75 of 2008. 4Freedom of Religion South Africa v Minister of Justice 2020 (1) SACR 113 (CC). 5 S v YG 2018 (1) SACR 64.