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DEPARTMENT OF SOCIAL DEVELOPMENT

2. UPDATES TO INSTITUTIONAL The High Court delivered judgment on 19 October 2017
POLICIES AND STRATEGIES whereof it was found, inter alia, that the common law
defence of reasonable and moderate chastisement is
DSD has a stable policy regime. A number of operational unconstitutional and no longer applies in South African
policies are in place. With respect to strategic law.
policies, the White Paper on Social Welfare that will be
approved by Cabinet is a critical instrument that will FORSA approached the Constitutional Court for
enable the sector to effectively deliver on its mandate. leave to appeal against part of the judgment. This
The White Paper on Comprehensive Social Welfare and matter drew huge media and public attention judging
the White Paper on Comprehensive Social Security from comments that the Department received from
will be finalized in the next 5 years. These will provide members of the public since the publication of the
critical and strategic direction for the Department and Draft Children’s Amendment Bill in the gazette.
the sector. The Department is implementing the DSD
sector strategy, which seeks to re-invent the DSD. The Constitutional Court was of the view that the right
to be free from all forms of violence or to be treated
2.1 UPDATES TO RELEVANT COURT RULINGS with dignity, coupled with what chastisement does in
reality entail, as well as the availability of less restrictive
Constitutional Court matter: Freedom of Religion of means, speak quite forcefully against the preservation
South Africa (FORSA) in re YG v State matter of the common law defence of reasonable and moderate
parental chastisement. There is, no justification for its
This matter emanates from and in an appeal from a continued existence, for it does not only limit the rights
criminal conviction in the Magistrate’s Court. A father in sections 10 and 12 of the Constitution, but it also
was convicted of the assault of his 13 year old son violates them unjustifiably.
on the grounds that he exceeded the bounds of
reasonable chastisement. The matter went on appeal It concluded by stating that, it suffices to say that any
and the judges decided that they could not decide the form of violence, including reasonable and moderate
matter without considering the constitutionality of the chastisement, has always constituted a criminal act
defence of reasonable chastisement. known as assault. The effect of relying on this common
law defence was to exempt parents from prosecution or
The court issued a Rule 16 A and invited amici curiae conviction. Identical conduct by a person other than a
to make written submissions, which was done by parent on the same child would otherwise constitute
Freedom of Religion of South Africa, (FORSA), amongst indefensible assault.
others. But then at the hearing on 26 June 2017 the
matter was further postponed and the court gave the The Constitutional Court therefore declared that the
directives inviting the Ministers of Social Development common law defence of reasonable and moderate
and Justice and Correctional Services to make parental chastisement is inconsistent with the provisions
submissions if they wished to do so. The Department of sections 10 and 12(1)(c) of the Constitution. The
submitted same on the filing date for submissions, decision of the Constitutional court means that the
which was 7 August 2017 pursuant thereto. common law principle of disciplinary chastisement is
no longer a defence where parents and those acting
The issue under consideration was whether the in loco parentis (caregivers) are charged with assault of
moderate chastisement defence to a charge of assault, children.
which is based on the common-law right of a parent to
administer corporal punishment to his or her children, The North Gauteng High Court matter re the
is compatible with the rights enshrined in the Bill of Children with severe or profound disruptive
Rights. The Department in its affidavit stated that behavioural disorders
reasonable or moderate chastisement defence is not
compatible with the rights of children enshrined in the The North Gauteng High Court, Pretoria was
Bill of Rights, thus unconstitutional. approached on behalf of a minor child who was
suffering from multiple disruptive behavior disorders,
It is important therefore that all defences that relate claiming sufficient alternative care, considering her
to use of physical force or neglect and abuse like disruptive behavior disorders, appropriate mental care
“reasonable chastisement” be repealed as called on an on-going basis and access to basic education of
for by the Convention on the Rights of the Child an adequate quality.
(CRC). The legislative measure that the Minister of The relief sought was that the Ministers of Social
Social Development has undertaken in line with the Development, Health and Basic Education should
recommendation of the CRC is the introduction of the take reasonable measures to make provision for the
draft National Child Care and Protection Policy and appropriate alternative care, mental health services,
latest draft amendments to the Children’s Act. and educational needs for children with severe or
profound disruptive behavioral disorders.
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