LME3701 FINAL EXAM PORTFOLIO assignment 3 2021.

HISTORICAL DEVELOPMENTS OF THE LAW WITH REGARD TO CHASTISEMENT OF CHILDREN BY THEIR PARENTS. By Submitted in partial fulfillment of the requirements for the degree LLB In the SCHOOL OF LAW UNIVERSITY OF SOUTH AFRICA SUPERVISOR: PROFESSOR L PIENAAR (ASSIGNMENT 03) 2021 1 5 10 15 20 25 30 35 40 45 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: LME3701 DATE: 10 OCTOBER 2021 RESEARCH THEME SELECTED: Chastisement of children by parents – Historical approach MARK RECEIVED FOR ASSIGNMENT 01 MARK RECEIVED FOR ASSIGNMENT 02 2 5 10 15 20 25 30 35 40 45 TABLE OF CONTENT 1. INTRODUCTION 4-5 2. PROBLEM STATEMENT 5-6 3. HYPOTHESIS 6-8 4. POINTS OF DEPARTURE AND ASSUMPTIONS 8-9 5. CONCEPTUALISATION OF CENTRAL RESEARCH THEMES 9-10 5.1 Historical approach 9-10 5.2 Children 10 5.3 Chastisement 10 5.4 Rights 10 6. PROPOSED CHAPTER OUTLAY 10-11 6.1 Chapter 1 10 6.2 Chapter 2 10 6.3 Chapter 3 10 6.4 Chapter 4 11 6.5 Chaprer 5 11 7. PROJECTED TIME-FRAME 11 8. DESCRIPTION OF RESEARCH METHODOLOGY 11-12 9. CONCLUSION 12 10. BIBLIOGRAPHY 13-14 1. INTRODUCTION 3 5 10 15 20 25 30 35 40 45 The Constitutional Court of South Africa has ruled that the common defense of reasonable and moderate parental chastisement of children is now unconstitutional. According to section 12(1)(c) of the Constitution,1 Everyone has the right to freedom and security of the person, which includes the right to be free from all forms of violence from either public or private sources. These judgements were made in certain case laws. The judgment has not labelled it as a new offence, as hitting a child has always been categorized as assault under South African law. Children's chastisement includes hitting the child with a hand or an object, kicking, shaking, or throwing the child, pinching or pulling their hair, forcing a child to stay in uncomfortable or humiliating positions or to engage in excessive physical exercise, and burning or scarring the child.2 Chastisement is a method of discipline that is deeply embedded in our cultural norms and traditions which depicts that parenting methods in South Africa are primarily authoritarian as parents believe that discipline must take the form of punishment to correct unwanted behaviour in the youth. “since most members of society are not capable of rational thought and selfcontrol, children must be conditioned to fear disobedience.”3 In Rex v Theron and another4 the court held that the discretion, which the common law gives to parents to inflict chastisement, is not to be exercised in an arbitrary and capricious manner. It may only be exercised on just and reasonable grounds.5 Thus the commencement of the Constitution has brought about fundamental changes to the overall South African legal order.6 Chastisement of children violates children’s human rights to physical integrity and human dignity, as upheld by the UN Convention on the Rights of the Child (hereinafter, the CRC), the African Charter on the Rights and Welfare of the Child (hereinafter, the ACRWC), as well as the Constitution of the Republic of South African (hereinafter, the Constitution). 7 Along these lines, in this research I will be conferring together with thinking through the hypothesis, problem statement, points of departure and assumptions, 1 Constitution of Republic of South Africa 108 of 1996. 2 Ulrika Soneson, Ending Corporal Punishment of Children in South Africa (Save the Children Sweden 2005) 5. 3 Dawes, Kafaar, de Sas Kropiwnicki, Pather & Richter (2005) 3. 4 Rex v Theron and another 1936 OPD 166. 5 Bekink, (2006) 2 SACJ 178. 6 Bekink, (2006) 2 SACJ 180. 7 Soneson, Ending Corporal Punishment of Children 5.