12 Nov Good parents have been criminalised by the Constitutional Court

The no spanking judgment[1] – a line has been crossed.

[1] Freedom of Religion South Africa and Minister of Justice and Constitutional Development and Others [2019] ZACC 34 – hereafter “the no spanking judgment”.

Chief Justice Mogoeng Mogoeng is on record stating that he suspects that the majority of South Africans would not support the outcome of the recent constitutional court judgment criminalising parents who use moderate and reasonable chastisement in the discipline of their children. The remedy, he says, is for these parents to mobilise in parliament to change the constitution in this regard.

This view is premised on the assumption that the constitution objectively outlaws such chastisement and that all that he and his fellow justices did in their judgment, was in an objective and dispassionate way to set out what was already there in the constitution.

Thus, for example, Sachs J writes in the death penalty matter[1]: “[392] Accordingly, the idealism that we uphold with this judgment is to be found not in the minds of the judges, but in both the explicit text of the constitution itself and the values it enshrines.” Or Jafta J in the street naming matter[2]: “[171] …It is the Constitution itself which defines how transformation of our society should be pursued and not (a judgment by a justice) which merely serves as its mouthpiece.”

So, along with justices Sachs and Jafta, the chief justice, in effect, also is denying imposing his subjective vision of what our society should look like on South Africans.

An analysis of the no spanking judgment reveals that this reasoning is simply unsustainable; that subjectivity is unavoidable when interpreting and applying moral concepts such as dignity, freedom and equality, the cornerstones of the constitution. In other words, contrary to what justices Sachs and Jafta assert, central to the interpretation and application of the constitution as to how our society should be transformed, is what is to be found in the minds of the 11 justices of the constitutional court.

I now turn to the judgment itself. (I will only touch on some examples to illustrate the subjective and question begging nature of the reasoning of the chief justice and his fellow justices[3].)

I have not had sight of the submissions made by the various parties in the matter. My analysis thus will be wholly confined to the reasoning in the judgment.

At the outset at paragraph [31] the chief justice makes his choice as to which provisions in the constitution he will use to decide on “the constitutionality of moderate and reasonable chastisement.” He justifies this choice by stating that “[30] … there is merit in the approach that recognises that prolixity must be avoided where that can be achieved without watering down the quality of reasoning or the soundness of judgment… .”

The primary chosen provision is the right to be free from all forms of violence from either public or private sources in section 12 (1) (c). The right to dignity in section 10 also receives some attention.

Whether or not this was a correct choice is not pertinent to my argument. What is important is that upfront he makes a choice about which provisions are pivotal, and then develops his judgment using these choices of his as the point of departure.

In an earlier judgment[4], which dealt with the use of corporal punishment in private schools, for purposes of his judgment Sachs J accepts that parents’ religious rights under sections 15 and 31(1) are both at issue. Furthermore he assumes, without deciding, that corporal punishment as practised by the relevant school is not “inconsistent with any provision of the Bill of Rights as contemplated by section 31(2).” The issue before Sachs J was to decide whether under section 36 the law outlawing corporal punishment in all schools was “reasonable and justifiable in an open and democratic society based on human dignity, freedom and equality.”

What the no spanking judgment thus does, is decide that Sachs J’s assumption was incorrect as regards corporal punishment, more particularly, that it is in conflict with sections 12 (1) (c) and 10 of the constitution.

Having made this choice of provisions, the chief justice then makes another choice: “[39] Turning to the language of section 12, the operative words are ‘free from all forms of violence’. The first question is whether we ascribe a highly technical meaning to the word ‘violence’ or give it its ordinary grammatical meaning … .”

The very formulation of the question clearly points to his answer. A neutral formulation would not have included the adjective, “highly” before “technical”.  The use of “highly” immediately discloses that the question in effect is a rhetorical question, not a question to be considered in a dispassionate and objective manner.

He also does not explain in any meaningful way why in this case it is better to look to the “ordinary grammatical meaning” rather than a “technical” meaning. Thus for example, in the death penalty matter, reflecting on what meaning to give to “cruel and inhuman punishment” in the constitution, Chaskalson P writes: “[26] ….The question is not, however, whether the death sentence is a cruel, inhuman or degrading punishment in the ordinary meaning of these words but whether it is a cruel, inhuman or degrading punishment within the meaning of s 11 (2) of our Constitution.” One can only assume that this approach of Chaskalson P would be seen as “highly technical” by Mogoeng Mogoeng CJ and his fellow justices in the no spanking judgment. It is irrelevant for the purposes of this review as to who was “correct” in their approach. The important thing is that the two chief justices made fundamentally different choices on the same point, and that these choices immediately set the trajectory of their reasoning and conclusion.

Thus, as it also did in the case of the definition of equality in section 9, where the constitutional court did not merely give equality its ordinary grammatical meaning (e.g. Minister of Finance and Another vs Van Heerden Case 2004 (6) SA 121 (CC)), if the chief justice had started off with the point of departure in the death penalty and equality matters, he legitimately could have arrived at a different conclusion.

Another choice by the chief justice which cemented this trajectory, is his choice of a dictionary meaning of the word violence viz., “behaviour involving physical force intended to hurt, damage or kill someone or something.” For this he relies on the 6th edition of the Oxford English Dictionary. He does not say why he chose this particular definition. What is clear is that having opted to start with the ordinary grammatical meaning of violence, his choice of definition made his conclusion unavoidable.

As an illustration, another definition he could have chosen is from the Oxford English Dictionary, The Definitive Record of the English Language. In the second edition (1989) (https://www.oed.com/oed2/00277885) violence is defined as:
“1. a. The exercise of physical force so as to inflict injury on, or cause damage to, persons or property; action or conduct characterized by this;”

Had he chosen this definition, the said trajectory would have taken his reasoning to a different conclusion. “Moderate and reasonable chastisement” by definition would not “inflict injury on, … (a child).” If it did, then it would not be “moderate and reasonable” as no society would countenance legitimising “injuring” a child.
Whereas in the definition chosen by him, the intention required (“to hurt”) is by definition precisely why corporal punishment is used by a parent, as pointed out by the chief justice in his reasoning. He thus chooses a self-fulfilling definition, that is self-fulfilling for his conclusion.

Other definitions include: “1a : the use of physical force so as to injure, abuse, damage, or destroy…” www.merriam-webster.com

This definition also would have taken the chief justice’s reasoning in a different direction, as once again there is no reference to an intention to hurt, but rather to injure.

Although the definition of violence in Collins English Dictionary (https://www.collinsdictionary), seems to support the choice of the chief justice, on closer scrutiny it also presents a problem for his choice:
“1.Violence is behaviour which is intended to hurt, injure or kill people.”

However, the synonyms given are revealing: “brutality, bloodshed, savagery, fighting.”
These synonyms indicate what is understood by “hurt” in its definition, and are far removed from the intention in moderate and reasonable chastisement.

What is striking in this regard, is that the chief justice acknowledges that: “[32] Freedom of Religion (the applicant) rightly (my emphasis) seeks to distinguish reasonable and moderate chastisement from the kind of assault and abuse of children that every campaign or challenge to end this common law defence is actually intended to curb. … [33] …. They only seek to protect and preserve parental entitlement to lovingly discipline their children just or almost as positively as alternative methods reportedly do. [34] …. It bears repetition that one of Freedom of Religion’s major concerns is the apparent conflation of reasonable and moderate chastisement with blatant child abuse and brutal assault by holding them out as being inherently fundamentally the same.”

Notwithstanding this acknowledgement, and describing this desired distinction as “right(ly)”, he then chooses a definition of violence which makes such a distinction impossible.

Had he chosen a definition where the intention is to injure, as opposed to hurt, the distinction sought by the applicant could have been sustained.

Furthermore, if he had adopted the hermeneutical approach in the death penalty and equality judgments, freed from the shackles of his decision to give violence an ordinary grammatical meaning of his choice, he could have looked at section 12 (1) (c) in the context of the rest of that section.

Any reading of that section would fully support the distinction sought by the applicant. The other sub-clauses refer to the arbitrary deprivation of freedom, detention without trial, torture and cruel, inhuman or degrading punishment – very far removed from the aim of parents to “lovingly discipline their children”.  In fact, for a moment the chief justice seems to grasp this distinction when he writes concerning section 12 (1) (c): “[42]… We have a painful and shameful history of widespread and institutionalised violence.”, which clearly is distinguishable from parents lovingly disciplining their children. He, however, in effect  immediately thereafter conflates “reasonable and moderate chastisement with blatant child abuse and brutal assault.” when he states: “And section 12 exists to help reduce and ultimately eradicate that widespread challenge.”

The context of the whole of section 12 is central to interpreting and applying “violence” in section 12 (1) (c), if regard is to be had to the hermeneutical approach in the death penalty and equality judgments. Using the ordinary grammatical meaning of the word violence, chosen by him as the launching pad for his reasoning, simply does a huge disservice to section 12 as a whole, and indeed to the rest of the bill of rights. His approach is in fact the “highly technical” one, in effect sacrificing substance for form.

In addition, the chief justice, with respect, is simply wrong when he writes that: “[37] A proper determination of the constitutionality of chastisement requires that it be located within a criminal law setting, which is its natural habitat.” Having chosen to resolve the issue largely on section 12 (1) (c), it is this section, and the rest of the bill of rights, within which the determination must be located. Resorting to a criminal law definition of assault, which is helpful for his reasoning, is not only misplaced, but more importantly begs the very question the constitutional court was asked to decide, namely, whether reasonable and moderate chastisement amounts to “unlawful …force”, as required by the criminal act of assault. The constitution must inform the criminal law, not the other way round.

Turning to the court’s reliance on the dignity provision in the bill of rights. What is  highlighted in paragraphs [45] and [46] in the no spanking judgment is trite and question begging. The applicant obviously argued that the use of moderate and reasonable chastisement within the context of a loving family is consistent with the picture painted in these paragraphs, for example the need to treat children with dignity and to provide them with “a secure and nurturing environment free from violence, fear, want and avoidable trauma.”.

What is breathtaking, is that without laying any foundation for it whatsoever, the chief justice then opines:“[47] There is a sense of shame, a sense that something has been subtracted from one’s human whole, and a feeling of being less dignified than before, that comes with the administration of chastisement to whatever degree.”

Obviously I cannot deny that this might have been his own personal experience of corporal punishment. It was not mine, neither at home nor at school, where I received such punishment in abundance! And that is the point – the chief justice cannot make such a finding as an objective fact – if it was objective that would mean my experience of corporal punishment must be the same as his.

It is thus simply wrong for him to conclude as an objective fact that: “[48] That said, moderate and reasonable chastisement does impair the dignity of a child and thus limits her section 10 constitutional right.” Stating it, does not make it an objective fact.

To further illustrate the subjective nature of this choice, the following extract from Sachs J in the earlier judgment on corporal punishment in private schools, is instructive: “[15] ….The child who has grown up in the particular faith may regard the punishment, although hurtful, as designed to strengthen his character. On the other hand, the child is being subjected to what an outsider might regard as the indignity of suffering a painful and humiliating hiding deliberately inflicted on him in an institutional setting….” Summing up the parents’ view he continues later: “ [43] … the appellant replied that for believers, including the children involved, the indignity and degradation lay not in the punishment, but in the defiance of the Scriptures represented by leaving the misdeeds unpunished; subjectively, for those who shared the religious outlook of the community, no indignity at all was involved. It argued further that internationally there was widespread judicial support for the view that physical punishment only became degrading when it passed a certain degree of severity.”

Notwithstanding this engagement by Sachs J concerning whether or not corporal punishment infringes the dignity of children, in the no spanking judgment the chief justice in one line simply asserts it as a fact, without any reasons/evidence for this assertion. One would have thought that at the very least he would have engaged with the reasoning of Sachs J in this regard, and dealt with why there is widespread international support for the submissions of the applicant.

This is more so as obviously what was important for Sachs J in his judgment was that: “[51] …the parents are not being obliged to make an absolute and strenuous choice between obeying a law of the land or following their conscience… What they are prevented from doing is to authorise teachers, acting in their name and school premises, to fulfil what they regard as their conscientious and biblically-ordained responsibilities for the guidance of their children.”

This is precisely what the chief justice and his fellow justices are doing in the no spanking  judgment, forcing parents to make a choice between obeying a law of the land or following their conscience. This being the reality of their judgment, one would have thought some reasoning and justification would have been forthcoming before making the bald choice that as a fact moderate and reasonable chastisement, in the context envisaged by the applicant, and indeed by the Judeo Scriptures inter alia quoted by the chief justice, does impair the dignity of a child.

If the chief justice had made different choices as set out above, then the task of the constitutional court would have been to set out guidelines to help parents distinguish between reasonable and moderate chastisement which would not impair the dignity of the child, and  violence as envisaged by section 12 (1) (c) of the bill of rights. The choice made by the chief justice is far less burdensome for the court. Given its choices, it is quite correct that “all forms” means exactly that – all violence as defined by his chosen all-embracing definition of the ordinary grammatical meaning of violence. And violence as defined by the chief justice will always impair the dignity of the child at the receiving end of such violence.

Quite frankly, once these subjective choices were made, the rest of the judgment was not needed. No society would ever accept that assaulting and humiliating children can ever be justified, on any grounds. It can never be in the best interests of a child to assault them and impair their dignity.

However, had they made other initial choices, then it could have allowed the distinction sought by the applicant.
Perhaps in the longevity of the Scriptures quoted by the chief justice, we have a clue as to what choices should have been made.

Be that as it may, returning to the advice given by the chief justice to South African parents, it is fundamentally flawed in its assumption that all the chief justice and his fellow justices were doing was in an objective and dispassionate way, pronounce on what was already in the constitution. They made subjective choices and in so doing, wittingly or unwittingly, imposed a specific ideology on the parents of South Africa, in the process criminalising many of them.

A possible ominous consequence of this decision which forces parents to make the choice which Sachs J was very aware of, highlighted above, is the promotion of a contempt of the law, which is poison to the rule of law. There can be no doubt that for many usually law abiding parents in South Africa, this judgment has crossed a line which should not have been crossed.

Keith Matthee SC
12th November 2019

[1] S v Makwanyane and Another 1995 (3) SA 391 (CC).

[2] City of Tshwane Metropolitan Municipality and Afriforum and Another [2016] ZACC 19.
[3] Two examples not dealt with in this critique are the chief justice’s words in [61], “in our kind of democracy” and in [69], “commonsensical approach” when referring to the methods of discipline promoted by those opposed to moderate and reasonable chastisement. In the absence of any definition of what he means by “our kind of democracy” in the context of the issue he is faced with, opens the door completely for justices to justify anything they want to justify. So for example, what makes our democracy different to those democracies who allow moderate and reasonable chastisement? In fact at [25] the chief justice specifically writes that “comparable democracies retain the …defence of reasonable and moderate chastisement.” The assertion concerning the one approach he was faced with being the “commonsensical approach”, calls to mind the title of Alistair MacIntyre’ s 1988 book, “Whose Justice? Which Rationality?” (Notre Dame: University of Notre Dame Press.) Is it the most “commonsensical approach” according to the 11 justices who handed down the judgment? It begs the question they were faced with. Merely asserting that something is “commonsensical” does not make it “commonsensical” – all it conveys is that the 11 justices in their subjective view believe that it is the most “commonsensical”.

[4] Christian Education South Africa v Minister of Education 2000 (4) SA 757 (CC).