“We have a painful and shameful history of widespread and institutionalised violence. And Section 12 exists to help reduce and ultimately eradicate that widespread challenge.”
If the outcry we’ve seen in the media is anything to go by, the people of South Africa are not happy with the Constitutional Court this week after Wednesday’s judgment on spanking children.
The Constitutional Court found that moderate and reasonable chastisement by a parent, as a defence to a charge of assault, was unconstitutional. Spanking is now considered assault under the law.
This is not the first time that judgments of the Constitutional Court have adopted a morality that is apparently at odds with public opinion. Recall the massive demonstrations ahead of S v Makwanyane — the judgment that abolished the death penalty; and the grumblings over the 2005 Fourie judgment, which enabled gay marriage.
The role of public opinion in deciding on the constitutionality of laws was famously addressed by the late chief justice Arthur Chaskalson in his Makwanyane judgment, when he said the question for the court is not “what the majority of South Africans believe” but what “the Constitution allows”.
It is worth quoting Chaskalson at length here:
“Public opinion may have some relevance to the enquiry, but in itself, it is no substitute for the duty vested in the Courts to interpret the Constitution and to uphold its provisions without fear or favour. If public opinion were to be decisive there would be no need for constitutional adjudication. The protection of rights could then be left to Parliament, which has a mandate from the public, and is answerable to the public for the way its mandate is exercised, but this would be a return to parliamentary sovereignty, and a retreat from the new legal order established by the 1993 Constitution.
“The very reason for establishing the new legal order, and for vesting the power of judicial review of all legislation in the courts, was to protect the rights of minorities and others who cannot protect their rights adequately through the democratic process. Those who are entitled to claim this protection include the social outcasts and marginalised people of our society. It is only if there is a willingness to protect the worst and the weakest amongst us, that all of us can be secure that our own rights will be protected.”
Chaskalson’s words are particularly apposite in cases dealing with children — one of the most vulnerable and least powerful groups. Children’s vulnerability is expressly recognised by the Constitution, which in addition to other rights, says that in all matters concerning children, their best interests are paramount.
As the unanimous judgment of Chief Justice Mogoeng Mogoeng makes clear, what really matters is upholding the provisions of the Constitution, without fear favour or prejudice.
In his judgment Mogoeng said the court acknowledged the very big difference between abuse and “loving chastisement”, as argued by organisation Freedom of Religion South Africa.
But there was still no getting away from the fact that chastisement was a form of violence, he said. “It is the bite of the force applied or threatened that is hoped to be remembered to restrain a child from misbehaviour … How then can reasonable and moderate chastisement not fall within the meaning or category of violence envisaged in Section 12(1)(c)?”
Section 12(1)(c) of the Constitution says everyone has the right to freedom and security of the person, which includes the right “to be free of all forms of violence from either public or private sources”.
In his judgment Mogoeng highlights that Section 12 does not refer to “only certain or some forms of violence but ‘all forms’”. To “drive the point home conclusively”, he adds, the Constitution expressly prohibits violence from both public and private sources.
“‘All forms of violence’ means moderate, reasonable and extreme forms of violence. Besides – ‘a culture of authority which legitimates the use of violence is inconsistent with the values for which the Constitution stands’,” says the Chief Justice, quoting from an earlier judgment.
“We have a painful and shameful history of widespread and institutionalised violence. And section 12 exists to help reduce and ultimately eradicate that widespread challenge. ”
Mogoeng also locates his decision in the right to human dignity, which children also have.
So the moderate chastisement defence limited these two rights in the Constitution, the court finds. However that is not the end of the matter. There is a second step to deciding if something is unconstitutional: Laws may — under the Constitution — limit fundamental rights if it is reasonable and justifiable in an open and democratic society based on constitutional values.
The constitution lists a number of factors to be considered in looking at justifiability, including the nature of the right (here, the rights to dignity and freedom of the person), and how important the limitation is and its purpose (here the defence of reasonable chastisement). Also considered is whether there are other, less intrusive ways to achieve the purpose.
Weighing up all these factors, Mogoeng said, while parents who truly chastise their children lovingly did not always intend to abuse or traumatise their children, there was little evidence to show that it was beneficial. Instead there were “pointers” that it was potentially harmful.
The chief justice referred to Section 28(2) of the Constitution, which says a “child’s best interests are of paramount importance in every matter concerning the child”.
“The application of force or a resort to violence, which could be harmful or abused, cannot in circumstances where there is an effective non-violent option available be said to be consonant with the best interests of the child.”
Mogoeng also found there were less restrictive means of achieving the same purpose. Friends of the court had submitted evidence that “positive parenting” was an effective non-violent option.
The Constitutional Court’s approach in this judgment was in line with the approach adopted in Makwanyane — the Constitutional Court’s very first case. The justices asked what the constitution allows, not what many South Africans believe.
It bears remembering that, though the Constitution creates enforceable rights and obligations, it is also an aspirational blue-print for the society that we collectively aspire to. There was a time it was not considered rape when a husband raped his wife. In that case, it was Parliament that made the change. But, with the constitution as a guide, sometimes the courts will play the role of blazing the trail.