LME3701 ASSIGNMENT 02 2021.

DISCUSION OF CURRENT LEGAL POSITION OF CHASTISEMENT FOR CHILDREN BY THEIR PARENTS IN SOUTH AFRICA: HISTORICAL APPROACH By NAME: SAMUEL MOGALE STUDENT NUMBER: Submitted in partial fulfilment of the requirements for the degree LLB In the SCHOOL OF LAW UNIVERSITY OF SOUTH AFRICA SUPVERVISOR: PROFESSOR L PIENAAR ASSIGNMENT NO: 02 2021 Page 1 of 25 Table of Contents 1. INTRODUCTION......................................................................................................3 2. PROBLEM STATEMENT.........................................................................................6 3. HYPOTHESIS...........................................................................................................8 4. POINTS OF DEPARTURE AND ASSUMPTIONS...................................................9 5. CONCEPTUALISATION OF CENTRAL RESEARCH THEMES..........................10 5.1 Historical approach...........................................................................................10 5.2 Chastisement of children.................................................................................10 5.3 Children.............................................................................................................10 5.4 Current legal position........................................................................................10 5.5 Constitutional challenge....................................................................................11 6. PROPOSED CHAPTER OUTLAY.........................................................................11 7. PROJECTED TIME-FRAME FOR SUBMISSION.................................................12 8. RESEARCH METHODOLOGY..............................................................................12 9. PRELIMINARY SOURCES AND SHORT DESCRIPTION OF EACH..................13 10. CONCLUSION......................................................................................................15 BIBLIOGRAPHY........................................................................................................16 ACADEMIC HONESTY DECLARATION...................................................................19 Page 2 of 25 1. INTRODUCTION The topic reminds me of the trip down the childhood memory lane, when I grow up in the 1980s in a village in Limpopo province. There was one `community disciplinarian` - let’s call him “Mr M”. Mr M had a reputation of being a feared `child spanker` in the whole village! From parents, guardians and grandparents, Mr M will be called at every opportunity to come and to use his sjambok, to instil discipline. He was called for mostly `offence` such as school going children who skip classes, theft, rudeness towards elders, boys who smoke cigarettes, girls who dress up improperly, children who bully others and boys who have failed to look after their family livestock, from eating subsistence farmer`s crops among others. We will always be reminded that, “you’ll need to enforce some discipline, in order to help keep your child, from engaging in truant behaviour”. Mr M`s role, was seen as acting in the best interests of the community – to instil discipline by spanking kids so as to maintain social harmony. All this events above, was before the adoption of South Africa’s 1996 Constitution. Many of us have memories of being spanked as a child. Deidre Kleynhans argues that, chastisement of children by parents is still a socially, culturally and legally accepted form of discipline of children in South Africa. This is also true of many other countries in the world, despite the growing movement against chastisement and the realization of the harm that it causes.1 In 1990s chastisement at home was legal in South Africa because a defence of reasonable and moderate chastisement exists in common-law as a ground of justification for parents when a criminal case or delictual claim based on assault is raised.2 Chastisement of children includes the hitting of the child with the hand or with an object, kicking, shaking, or throwing the child, pinching or pulling their hair, forcing a child to stay in uncomfortable or undignified positions, or to take excessive physical exercise and burning or scarring the child.3 1 Deidre Kleynhans ‘Considering the constitutionality of the common law Defence of “Reasonable and moderate chastisement”’ (LLM dissertation, University of Pretoria 2011) 4. 2 Du Preez v Conradie and Another 1990 (4) SA 46 (B). 3 Ulrika Soneson, Ending Corporal Punishment of Children in South Africa (Save the Children Sweden 2005) 5. Page 3 of 25