LME3701 assignment 3 Final portfolio 2021

HISTORICAL DEVELOPMENT OF THE LAW PERTAINING TO THE
CHASTISEMENT OF CHILDREN BY THEIR PARENTS AND THE ABOLITION OF
CORPORAL PUNISHMENT IN SOUTH AFRICA




Your text here 1
By




ALBERT GARRETT BARNARD

(40012808)




Submitted in partial fulfilment of the requirements for the degree.

LLB



In the



SCHOOL OF LAW

UNIVERSITY OF SOUTH AFRICA



SUPERVISOR: PROF. L PIENAAR

(PORTFOLIO / ASSIGNMENT 03: 890554)

2021




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,Table of contents.

1. Introduction………………………………………………………………...............3

2. Problem statement………………………………………………………..............4

3. Hypothesis/ aim of
research……………………………………………………...5

4. Points of departure and assumptions………………………………………….6

5. Conceptualization of central research themes……………………………….7

6. Proposed chapter outlay………………………………………………………….8

7. Projected timeframe……………………………………………………………...13

8. Description of research methodology…….………………………………….14

9. Conclusion…………………………………………………………………………14

10. Bibliography……………………………………………………………………….15




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, 1. Introduction.

‘The use of physical force upon a child as a means of corrective educational discipline is a long-
established part of civilisation…For this reason, the state did not interfere in the exercise of the rights,
duties, and responsibilities of parents in the upbringing of their children.’ 1


This research investigates the historical origin of the chastisement of children, the
evolution of legislation in South Africa by case law, the international obligations
placed on South Africa and the final abolition of this practice through the
Constitutional judgement in Freedom of Religion South Africa v Minister of Justice
and Constitutional Development and Others.2

Chastisement or corporal punishment of children by parents is still an accepted form
of discipline of children in South Africa, either socially or as part of their culture.
However, Section 12(1)(c) of the Constitution provides for ‘everyone has the right to
freedom and security of the person’, including ‘free from all forms of violence...’.3 In
addition, Section 28 provides additional rights to children to be protected, including
‘maltreatment, neglect, abuse or degradation’.4

Since the time of Roman Family Law, domestic punishment of family members,
including children resided with the ‘paterfamilias’, called ‘Patria potestas’5, meaning
‘power of a father’.6 Several historical and comparative studies found that parents
use corporal punishment to “keep discipline” at home. 7

South Africa ratified the UN Convention on the Rights of the Child 8 in 1995 and the
African Charter on the Rights and Welfare of the Child 1990, in 2000 9, thus have a


1 Burchell JM, Milton J, ‘Principles of Criminal Law’, (Juta 1991), 159 to 161.
2 Freedom of Religion South Africa v Minister of Justice and Constitutional Development and
Others [2019] ZACC 34.
3 The Constitution of the Republic of South Africa, 1996.
4 The Constitution of the Republic of South Africa, 1996.
5 Kruger H, ‘The legal nature and development of parental authority in Roman, Germanic and
Roman Dutch law - a historical overview’ (2004) Fundamina Vol. 10, 84.
6 https://www.britannica.com/topic/patria-potestas, accessed 3 July 2021.
7 Morrell R, ‘Corporal punishment in South African schools: a neglected explanation for its
persistence’ (2001) South African Journal of Education Vol. 21, No. 4, 294.
8 UN General Assembly, ‘Convention on the Rights of the Child’, 20 November 1989, United
Nations, Treaty Series, vol. 1577.
9 Organization of African Unity (OAU), ‘African Charter on the Rights and Welfare of the Child’ 11
July 1990, CAB/LEG/24.9/49 (1990).

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