1. Whether a friend of the court (amicus curiae) had standing to bring an application for leave to appeal in circumstances where the main parties in the lower court were unwilling or unable to appeal.
2. Whether the common law right and biblical belief of a parent to administer reasonable and moderate chastisement on their children was unconstitutional for infringing;
3. the right to be free from all forms of violence from either public or private sources protected under section 12(1)(c) of the Constitution;
4. protection of human dignity as provided under section 10 of the Constitution; and,
5. the principle of best interests of the child protected under section 28 of the Constitution.
6. Whether the biblical belief of a parent to administer reasonable and moderate chastisement on their children was an integral part of the exercise of the right to freedom of religion.
7. What was the meaning of the word “violence” within the context of section 12(1)(c) of the Constitution?
8. Whether the phrase “all forms of violence” as used in section 12(1)(c) of the Constitution could be construed as including reasonable and moderate chastisement of a child by a parent.

1. A jump or translation from being a friend of the court in a lower court to becoming a party at an appeal stage was at times permissible on considerations of justice. In the instant matter Freedom of Religion South Africa (applicant/ intervenor) not only sought to become a party in the public interest, but the issues raised also brought out the need for intervention as a party, on behalf of the general body of parents and children in the country. The applicant was not seeking to be involved in the instant matter for the first time. It took part in the proceedings in the High Court, albeit in a different capacity. It was familiar with the issues that it sought to raise on behalf of the broader public for the attainment of a final and authoritative pronouncement by the Court.
2. Technicalities and senseless constraints that came with rigidity should never be allowed to stand in the way of a legitimate and demonstrably desirable pursuit and attainment of justice. Only parties to litigation should ordinarily be allowed, because of their direct and active participation borne of their material interest in the case, to challenge the decision of the court which decided against them. After all, courts should protect scarce judicial resources and not easily allow litigious busybodies to clog the roll in circumstances where those directly and materially affected by the outcome saw no need to challenge an adverse outcome. However, there were exceptions to that guiding principle and those exceptions were grounded on the interests of the public.
3. Legal principles existed to facilitate rather than to frustrate the attainment of a just, equitable, and definitive outcome. The issue of discipline, its positive and negative aspects, and the need for certainty on the disciplinary options available to parents cried out for the attention of the Court. A pronouncement by the apex court on whether the common law defence of reasonable and moderate chastisement was constitutionally invalid would clearly serve the interests of the public. That was the extent of its general and prospective application. Accordingly, the applicant was clothed with standing to intervene and bring an application for leave to appeal.
4. Ordinarily, litigants should not be allowed to bypass the Supreme Court of Appeal in matters involving the application or interpretation of the common law. The administration of reasonable and moderate punishment by parents on their children had been declared unconstitutional by the High Court. That declaration, though not relating to legislation, was just too close and similar in character to declarations of unconstitutionality relating to legislation, to render the bypassing of the Supreme Court of Appeal excusable. Although not all declarations of unconstitutionality of all common law principles would justify a departure from normal practice, the nature or importance of the constitutional issues raised, the seriousness and far-reaching implications of the unconstitutionality in the instant matter justified a departure from the normal appeal route, via the Supreme Court of Appeal. Certainty and finality was needed urgently. A delay that would be caused by that appeal process trajectory would not be in the public interest or in the interests of justice. That was so because parents disciplined their children daily. The sooner they knew what was legally permissible, the better.
5. The application of force to the body of another could, subject to the de minimis non curat lex (the law does not concern itself with trifles) principle, take the form of the slightest touch, holding a person’s arm or bumping against them. However, the assault could be justified or rendered lawful on the basis of authority or the right of chastisement. Had it not been for that defence, that application of force could have led to a parent being convicted of assault.
6. Section 12(1)(c) of the Constitution prohibited all forms of violence and gave everyone the right to freedom and security of the person. A proper determination of the constitutionality of chastisement required that it be located within a criminal law setting, which was its natural habitat. Moderate and reasonable chastisement hitherto constituted an effective defence for parents who had administered it to their children and could be or were charged with assault. Assault was an unlawful and intentional application of force to the person of another or inspiring a belief in that person that force was immediately to be applied as threatened. That accorded with the definition the courts had given to assault; the intentional application of unlawful force to the person of a human being.
7. Violence was behaviour involving physical force intended to hurt, damage or kill someone or something. That was the ordinary grammatical meaning that ought to be ascribed to the word violence within the context of section 12(1)(c) of the Constitution. More importantly, even when contextually and purposively interpreted, as it should, the definition of assault converged on the same meaning. Violence was not so much about the manner and extent of the application of the force as it was about the mere exertion of some force or the threat thereof.
8. From the language of section 12(1)(c) of the Constitution, the operative words were “free from all forms of violence”. Therefore, the question was whether to ascribe a highly technical meaning to the word “violence” or give it its ordinary grammatical meaning which connoted any application of force, however minimal. Chastisement, by its very nature, entailed the use of force or a measure of violence. It would appear that the actual or potential pain or hurt that flew from chastisement was that it was believed to be more likely to have a greater effect than any other reasonably available method of discipline.
9. It was the bite of the force applied or threatened that was hoped to be remembered to restrain a child from misbehaviour whenever the urge or temptation to do wrong came. How then could reasonable and moderate chastisement not fall within the meaning or category of violence envisaged in section 12(1)(c) of the Constitution? After all, reasonable and moderate chastisement included corporal punishment with the instrumentality of a rod or a whip. That accorded with the biblical injunction contained in Proverbs 13:24 that he who spared his rod hated his son, but he who loved him disciplined him promptly. The reference to violence, therefore, extended to all forms of chastisement, moderate or extreme – a smack or a rod. The objective was always to cause displeasure, discomfort, fear or hurt. The actionable difference all along laid in the extent to which that outcome was intended to be or was actually achieved.
10. Since punishment by the application of force to the body of a child by a parent was always intended to hurt to some degree, moderate and reasonable chastisement indubitably amounted to legally excusable assault. And there could not be assault, as defined, without meeting the requirements of all forms of violence envisaged in section 12(1)(c) of the Constitution.
11. The mischief sought to be addressed through section 12(1)(c) was not only certain or some forms of violence, but all forms. The Republic of South Africa had a painful and shameful history of widespread and institutionalised violence. Section 12 of the Constitution existed to help reduce and ultimately eradicate that widespread challenge. “All forms” in that provision was all-encompassing that its reach or purpose seemed to leave no form of violence or application of force to the body of another person out of the equation. To drive the point home quite conclusively, the Constitution extended the prohibition of violence to either public or private sources.
12. The application of force, including a touch depending on its location and deductible meaning, or a threat thereof constituted assault. Parental authority or entitlement to chastise children moderately and reasonably had been an escape route from prosecution or conviction. That meant that the violence proscribed by section 12(1)(c) of the Constitution could still be committed with justification if that parental right was retained. However, if it was accepted that what would ordinarily be criminally punishable, but for the common law defence of moderate and reasonable chastisement, was indeed what section 12(1)(c) sought to prevent, then children would be protected by that section like everyone else. All forms of violence meant moderate, reasonable and extreme forms of violence. Moreover, a culture of authority, which legitimated the use of violence, was inconsistent with the values for which the Constitution stood.
13. Parental chastisement of a child, however moderate or reasonable met the threshold requirement of violence proscribed by the constitutional provision and, therefore, limited the right in section 12(1)(c) of the Constitution. The conclusion that it could not escape the reach of section 12(1)(c) was thus inevitable.
14. Section 10 of the Constitution provided that everyone had inherent dignity and the right to have that dignity respected and protected. That right occupied a special place in the architectural design of the Constitution, and for good reason, given the history of the Country. The role and stressed importance of dignity in the Constitution aimed to repair indignity, to renounce humiliation and degradation, and to vest full moral citizenship to those who were denied it in the past.
15. Children were constitutionally recognized as independent human beings, inherently entitled to the enjoyment of human rights, regardless of whether they were orphans or had parents. The word “everyone” in section 12(1)(c) also applied to them. Every child had his or her own dignity. If a child was to be constitutionally imagined as an individual with a distinctive personality, and not merely as a miniature adult waiting to reach full size, he or she could not be treated as a mere extension of his or her parents, umbilically destined to sink or swim with them. Foundational to the enjoyment of the right to childhood was the promotion of the right, as far as possible, to live in a secure and nurturing environment free from violence, fear, want and avoidable trauma.
16. There was a sense of shame, a sense that something had been subtracted from one’s human whole, and a feeling of being less dignified than before, that came with the administration of chastisement to whatever degree. That said, being held accountable for actual wrongdoing generally also had the same effect. Being found guilty of misconduct or crime and the consequential sanction like imprisonment, however well deserved, had a direct impact on one’s dignity. It was all a matter of degree. Moderate and reasonable chastisement impaired the dignity of a child and thus limited the provisions of section 10 of the Constitution.
17. Section 36 of the Constitution provided for possible limitation of the certain rights in the bill of rights including the right to protection of human dignity and freedom and security of the person in sections 10 and 12. Therefore, the common law defence of reasonable and moderate chastisement, being a law of general application, could potentially limit the rights in the bill of rights. That defence was available to all parents, regardless of their religious, cultural or other persuasions, when charged with assault of their children. It limited a child’s constitutional rights to dignity and to be protected from all forms of violence. As such, it had to be determined whether that limitation was reasonable and justifiable, regard being had to some of the factors listed in section 36 of the Constitution.
18. Parental chastisement was significantly different from the institutionalised administration of corporal punishment that had since been abolished. It was an intimate and administered by a loving parent whereas corporal punishment was somewhat cold, detached and implemented by a stranger of sorts. Parents had the inherent obligation to raise their children to become responsible members of society whose delinquency they stood to be blamed for, whereas strangers like teachers only had an official and possibly less-caring duty to punish. The primary responsibility to mould or discipline a child into a future responsible citizen was that of parents. For example, Christian parents had a general right and capacity to bring up their children according to Christian beliefs. The abolition of the defence of moderate and reasonable chastisement thus meant that the chastisement aspect of parents’ religiously or culturally ordained way of raising, guiding and disciplining their children was no longer available to them.
19. To discipline their children in terms of the prescripts of their faith or culture would expose parents to criminal prosecution, possible conviction and possible imprisonment. The only safety valve available to parents was the de minimis rule. Although that rule had acute shortcomings in terms of its inability to prevent the abolition of the defence from possibly imposing a strain on the family structure by allowing parents to be prosecuted for even the minutest of well-intentioned infractions, it was at least of some benefit in that it could save parents from being needlessly imprisoned. It did, barring diversion, not necessarily exclude the unlawfulness of the chastisement and a criminal conviction of assault, but only allowed the assault to go unpunished because of its triviality.
20. Properly managed, reasonable and moderate chastisement could arguably yield positive results and accommodate the love-inspired consequence management contended for by the appellant. That was why so many other civilisations and comparable democracies had kept that defence alive and relatively few had abolished it. In Africa, it was only Benin, Kenya, the Republic of Congo, Togo and Tunisia that had abolished corporal punishment in all settings, including in the home. Globally, only 54 states in seven territories had fully prohibited corporal punishment in the home, while 145 states in 32 territories had not fully prohibited it.
21. Section 28 of the Constitution provided that a child’s best interests were of paramount importance in every matter concerning the child. Children were most vulnerable. Some of them were so young that they were incapable of lodging a complaint about abusive or potentially injurious treatment or punishment, however well-intentioned it might have been. Even those who were of school-going age might often be ignorant of what they could do to alert the law enforcement authorities to actual or potentially harmful parental conduct that they were made to endure. The State was obliged to respect, protect, promote and fulfil a child’s constitutional rights and the provisions of section 28 of the Constitution thus bound the Judiciary. That meant that in examining a parent’s entitlement to chastise a child reasonably and moderately, of paramount importance should be the best interests of the child in respect of protection from potential abuse and the need to limit the right because of the good a child and society stood to derive from its retention as a disciplinary tool.
22. Section 28(2) of the Constitution anticipated possibilities of conduct that were actually or potentially prejudicial to the best interests of a child. Unsurprisingly, it was crafted in terms so broad as to leave no doubt about the choice it made between the best interests of the child and the parent’s perceived entitlement to resort to unreasonable and immoderate chastisement meant to procure a child’s obedience to a parent’s legitimate directive and orders.
23. Parents had over the years enjoyed the right to discipline their children in a variety of ways including the administration of moderate and reasonable chastisement. Its foundation being both religious and cultural in character, the administration of moderate and reasonable chastisement was regarded as an incidence of the enjoyment of one’s constitutional right of freedom of religion or culture.
24. Unlike the constitutional protections available to the child, the right to freedom of religion did not expressly provide for parental entitlement to administer moderate and reasonable chastisement to the child nor did any provision of the Constitution acknowledge the existence of a cultural right to the same effect. The appellant’s reliance on the right to parenting grounded on South Africa’s international obligations under several conventions that dealt with the right to family in particular ought to suffer the same fate. Not only did international law not recognise the right to discipline, but also the Constitution did not make express provision for it, unlike the rights sought to be vindicated.
25. There was paucity of clear or satisfactory empirical evidence that supported chastisement as a beneficial means of instilling discipline. Though not conclusive, there were, however, some pointers to the potentially harmful effect of chastisement. Positive parenting reduced the need to enforce discipline by resorting to potentially violent methods. It could replace occasionally harsh and inconsistent parenting with non-violent and consistent strategies for discipline like positive commands, tangible rewards and problem-solving, depending on age.
26. What militated more against the retention of the defence of moderate and reasonable chastisement was the best interests of the child, which were of paramount importance in all matters involving a child. To retain that kind of chastisement, it would have to be demonstrated that apart from the fact that it ordinarily felt within the category of assault, there was something about it that advanced the best interests of the child. In other words, there should be something about that excusable crime of assault that evidently redounded to the good of the child. It bore repetition that not much was said to help the Court appreciate that the benefits of that chastisement indeed outweigh its disadvantages, and thus justify the limitation.
27. Chastisement was meant to discipline and help a child appreciate consequence management. In other words, the purpose of moderate and reasonable chastisement was to mould a child into a responsible member of society. A child’s best interests, in that context, was to achieve the same laudable objective without causing harm or unduly undermining the fundamental rights of the child. The application of force or a resort to violence, which could be harmful or abused, could not, in circumstances where there was an effective and non-violent option available, be said to be consonant with the best interests of a child. For indeed the best interests of children were about what was best for them in the circumstances – what benefited them most with no or minimum harm.
28. What undermined the justification for retaining chastisement, more revealingly, was the availability of less restrictive means to achieve discipline. Chastisement was, after all, traditionally supposed to be the option of last resort, employed only when all else failed. Besides, the experience-borne traditional approach generally adopted by South African parents over the years had been to teach, guide and admonish their children, resorting to chastisement only as a measure of last resort. No research was required to verify that reality. The unreasonable and immoderate chastisement, which constituted assault proper, maltreatment or child abuse, had always been a criminal offence. It was an aberration that had inexplicably been left to permeate society with consequences that somehow militated against or undermined the retention of moderate and reasonable chastisement.
29. The right to be free from all forms of violence or to be treated with dignity, coupled with what chastisement in reality entailed, as well as the availability of less restrictive means, spoke quite forcefully against the preservation of the common law defence of reasonable and moderate parental chastisement. There was no material before the Court that could justify its continued existence, for it did not only limit the rights in sections 10 and 12 of the Constitution, but it also violated them unjustifiably.

Appeal dismissed with no order as to costs.

Orders:-

1. Application for direct access granted.
2. Freedom of Religion South Africa granted leave to intervene.
3. The common law defence of reasonable and moderate parental chastisement declared inconsistent with the provisions of sections 10 and 12(1)(c) of the Constitution.

Relevance to Kenya Article 29(c) of the Constitution of Kenya, 2010, gives every person the right not to be subjected to any form of violence from either public or private sources. In a similar version to the Constitution of South Africa, Kenya’s Constitution uses the phrase “any form of violence”. Further, article 28 of the Constitution of Kenya provides that every person has inherent dignity and the right to have that dignity respected and protected. Article 53 of the Constitution entrenches the principle of paramount interests of children. It provides that a child’s best interests are of paramount importance in every matter concerning the child.

Prior to the enactment of the Constitution in the year 2010, section 13 of the Children Act, 2001, provided for the protection of children from abuse. It provides that a child shall be entitled to protection from physical and humiliating abuse by any person. It gives every child the right not to be subjected to torture, cruel treatment or punishment. Notably, section 127 of the Children Act creates the offence of cruelty to and neglect of children. It specifically provides that person who, having parental responsibility, custody, charge or care of any child, wilfully assaults, ill-treats, abandons, or exposes a child in any manner likely to cause him or her unnecessary suffering or injury to health commits an offence. The offence attracts a maximum fine of two hundred thousand shillings or, subject to direction of the court, a charge under the Penal Code if the offence is of a serious or aggravated nature.

Similarly, the Basic Education Act, 2013, provides for the elimination of corporal punishment or any form of cruel and inhuman treatment or torture as a principle guiding provision of basic education in Kenya.

In M W K v another v Attorney General & 3 others [2017] eKLR, it was held that the 2010 Constitution had ushered in a new era where the society was committed to raise, develop and nurture children in an environment that is conducive to their well-being. The society had a duty to ensure that children receive the support and assistance that is necessary for their growth and development. The Court further recognised that children merit special protection through legislation that guards and enforces their rights and liberties. In attempting to guide and protect children, the interventions should not expose them to harsh circumstances which might adversely affect their development.

Section 251 of the Penal Code creates the offence of assault causing actual bodily harm. It provides that any person who commits an assault occasioning actual bodily harm is guilty of a misdemeanour and is liable upon conviction to imprisonment for five years. The court in Alex Kinyua Murakaru v Republic [2015] eKLR stated that actual bodily injury is any physical injury to a person, or psychiatric injury that is not merely emotions, fear or panic to make out the offence, the prosecution must show that there has been an assault, and that the assault has resulted in actual bodily harm. There must be an intention to assault (mens rea) and the assault must have taken place (actus resus). The court further held that bodily harm includes any hurt or injury calculated to interfere with the health or comfort of the victim; such hurt or injury need not be permanent, but must be more than merely transient or trifling.

Courts in Kenya have yet to pronounce themselves on whether or not parental chastisement would amount to actual bodily harm within the context of section 251 of the Penal Code. According to the instant South African decision, reasonable and moderate chastisement offends the constitutionally entrenched freedom and security of the person and right not to be subjected to any form of violence. In the two legal systems, the best interests of the child are of paramount importance; and in nurturing children, the best way would be that which benefit them the most with no or minimum harm.