The South Gauteng High Court ruled that the common law defence of reasonable chastisement is not in line with the Constitution and no longer applies in our law. This means disciplining your child in the form of a spanking is no longer considered legal within South Africa.

How did it come to this?

It has always been considered a crime of assault to hit a child, however, if a parent was charged, they would be able to raise a special defence which said that if the chastisement, or discipline, was reasonable they would not be found guilty.

The special defence of chastisement has been removed by the Court, which was to bring the common law in line with the Constitution. This followed an appeal by a father who had been found guilty of assault because he beat his 13-year-old son. The way in which he beat his son was deemed to exceed the bounds of reasonable chastisement.

The Court said that it wanted to guide and support parents in finding more positive and effective ways of disciplining children. The Minister of Social Development, Bathabilie Dlamini, also agreed that the defence of reasonable chastisement is unconstitutional. The Court said that protecting children was particularly important in the context of the high levels of child abuse and violence that pervade our society.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE).

References:

• YG v S (A263/2016) [2017] ZAGPJHC 290 (19 October 2017)
• “It’s now illegal to spank your child in SA”. https://www.enca.com/south-africa/it-is-now-illegal-to-spank-your-child-in-sa

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Contact refers to maintaining a personal relationship with a child. It entitles a person to see, spend time with (visit or be visited) or communicate (through post, by telephone or any form of electronic communication) with a child who does not live with that person. The child’s parent/s or a person other than the child’s parent/s (such as grandparent) can obtain the right to contact a child, provided that the contact would serve in the child’s best interests.

What will the court consider when granting an order in respect of contact?

• The best interests of the child.
• The nature of the personal relationship between the child and his/her parent/s.
• The degree of commitment the parent/s has shown towards the child.
• The extent to which the parent/s has contributed towards the expenses in connection with the birth and maintenance of the child.
• The likely effect on the child of any change in the child’s circumstances, including the effect of being separated from the parent/s or brothers/sisters with whom the child has been living.
• Any family violence involving the child or a family member of the child.
• The need to protect the child from any physical or psychological harm that may be caused by subjecting or exposing the child to maltreatment, abuse, neglect, degradation, violence or harmful behaviour.
• The child’s age, maturity, stage of development, gender, background and relevant characteristics of the child.
• Any disability that a child may have and any chronic illness from which a child may suffer from.

A parenting plan will contain a clause setting out the reasonable contact that the parent of alternate residence shall have with the child during term time and school holidays, taking into account the child’s social, school and extra-mural activities.

​There are an infinite number of possibilities available when drawing up a parenting plan. Jobs, schools and a variety of other factors must still be taken into account. The bottom line is to find a plan that works for the whole family.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

References:

https://www.legalwise.co.za/help-yourself/quicklaw-guides/child-contact/

http://www.divorcelaws.co.za/the-non-custodian-parent-and-contact.html

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Speaking to colleagues, horror stories are plentiful. Stories of civil court files gone missing for months, sheriffs without vehicles, backlogs in courts regarding motions, default judgments and maintenance claims, sheriffs’ offices taking up to six months to serve documents, chaos in filing of documents at the Masters’ Offices, delays in transfers at the Deeds Offices, backlogs in courts, backlogs at the Masters’ Offices and other Registrars, loss of dockets or other important evidence, absence of knowledge and lack of work ethic.

Serious concerns regarding new legislation pertaining to the courts and the legal profession have some of us running for the hills, this time to Australia. It is a bleak picture indeed, because for some, the wheels are falling off and the end is nigh.

Why, then, did I recently encourage an exceptionally bright young man to study law and not engineering? This is because this country and its people need exceptionally bright people to become attorneys, advocates, state prosecutors, magistrates and judges. The law has such an influence on all aspects of our lives that we cannot afford to have a legal profession without the necessary knowledge and abilities to protect us all.

If it were not for exceptionally bright people in the legal profession, we would not have had the ability to register our child in the school we deem appropriate, free from the bounds of so-called “feeding areas”. We would not be able to return that set of encyclopaedias purchased from the salesmen who came knocking on the door, would have to pay extraordinary interest on our credit agreements and have no guarantee of safety of ownership of our property.

Bright, able minds in the legal profession are of utmost importance to us all. And yes, transformation regarding race and gender is crucial, necessary, and should be embraced and encouraged. Unfortunately, the low entry-level requirements of the LLB degree has resulted in a large number of students with very few, if any, exceptionally talented candidates. The latter prefer better paid, less regulated occupations. All the more reason why the brightest and most talented should study law. By abandoning the profession and thus the legal system we, as the people of South Africa, will be much worse off. The truth is that the legal profession actually makes a difference in your life, each and every day.

Life in an attorney’s office is not as portrayed in an American television series. It is not Suits or Boston Legal (although some of us wish!). We do not work in designer clothes and not all assistants and secretaries are beautiful, blonde, hourglass-figured and sharp-witted. Our offices are not all glass-walled designer areas with quirky memorabilia, couches and clean desks. We have files – hundreds of them. And that is why you in all probability only consult with your attorney in the boardroom or consultation room, as their office space is cluttered with towers of files!

The work requires long, lonely hours of drafting, reading, thinking, considering, re-considering, and arguing with oneself. You need to work exceptionally hard on each matter to achieve the best outcome for the situation for each of your clients. Not all clients have unlimited resources and thus you have to work within the constraints of their financial ability. Attorneys mostly do not charge fees for all of the effort and time spent.

The one thing that each branch of the legal profession has in common, is that at the end of each day, regardless of when the day ends, you can close your door knowing that you have actually made a difference in somebody’s life, whether it be settling a divorce or finalising an amalgamation agreement, collecting the outstanding levies for painting of a sectional title scheme building, having your client’s debt review successfully granted, or the successful opening of a township plan.

Another satisfaction is knowing that you will never know EVERYTHING – the law is too extensive, too complicated and develops too rapidly to keep up with the intricacies of it all. There will thus always be something new to read, learn or to consider. You will always be able to consider new approaches to old problems and may even argue the same point in law from different perspectives.

If you are willing and able to work hard, learn, and grow in the legal profession you will be able to look back one day on your career with delight and satisfaction because no two days were ever the same. No court appearance, litigation, transfer or contract is ever the same; and while you were busy you actually had fun – enjoyed the good argument, the adrenalin rush to get the urgent application served, the ticking clock on the service of the plea, answering affidavit, reply or summary judgment application.

That is why you should encourage your talented and bright child to study law. He or she might just make the difference you may need one day.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

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