“Don’t try this at home?”: Reasonable or moderate chastisement, and the rights of the child in South Africa with YG v S in perspective

Abstract

In October 2017, in YG v The State, the High Court in Gauteng handed down a judgment that declared the common-law defence of “reasonable or moderate chastisement” unconstitutional. This article, while not a case comment, focuses on this case, and discusses some of the arguments highlighted by the defendant as well as one of the amici curiae in support of the reasonable chastisement defence. It also assesses the extent to which those arguments carry weight when assessed against the international human rights framework by which South Africa is bound. The recommendations that South Africa received from various human rights treaty bodies in relation to the prohibition of corporal punishment in the home setting takes centre stage. The article also draws on examples from foreign law, and offers an appraisal of a non-exhaustive list of substantive rights, namely, the best interests of the child, the equal protection of the law, as well as the right to freedom of religion or belief, in the context of corporal punishment in the home setting. A conclusion sums up the discussions, by underscoring that a judgment in the Constitutional Court that declares the common-law defence of reasonable chastisement as unconstitutional could serve as the touchstone for the possible expansion of the effective protection of the rights of children against all forms of violence in South Africa.