Du Preez V Conradie and Another 1990 (4) Sa 46 (BG

DU PREEZ v CONRADIE AND ANOTHER 1990 (4) SA 46 (BG)
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1990 (4) SA p46
Citation
1990 (4) SA 46 (BG) Bophuthatswana General Division Friedman J June 9, 1988; August 25, 1988 October 20, 1988 Link to Case Annotations
Court
Judge
Heard
Judgment
Annotations
Flynote : Sleutelwoorde
Minor - Chastisement of - Parent having right and power to chastise minor children - Such right includes the right to impose moderate and reasonable corporal punishment - Step-parent (to whom divorced parent H of children married) may exercise same rights as parent if requested to do so by parent, subject to same limitations as on parent - Parent and step-parent not entitled to molest children or exceed bounds of moderate and reasonable chastisement.
Headnote : Kopnota The parent of a child (including the custodian parent where the parents I are divorced) has the right and power to chastise his/her minor children, such chastisement to be moderate and reasonable and includes the right to impose moderate and reasonable corporal punishment. A step-parent (in casu, a stepfather married to the divorced mother of the children to whom custody of the children had been awarded) may exercise the same rights as the parent (the custodian mother) if requested to do so by such parent, subject to the same limitations, or if he is in loco parentis during the temporary absence of the parent, again subject to J the same limitation.
1990 (4) SA p47
FRIEDMAN J A Neither a parent nor a step-parent shall molest the children or exceed the bounds of moderate and reasonable chastisement in the disciplining and correction of the children. Case Information Return day of a rule nisi. The facts appear from the reasons for judgment.
B
J H Pistor for the applicant.
L C J Maree for the respondents. Cur adv vult. Postea (20 October 1988). Judgment
C Friedman J: This matter came before me by way of an urgent application on 12 November 1987. Mr J H Pistor appeared for the applicant and Mr L C J Maree appeared on behalf of the respondents.
By agreement the following order was granted by me: '1 2 3 Dat die eerste respondent verbied word om die kinders, Jan D Stephanus du Preez en Dinkie Marie du Preez, aan te rand, te molesteer of op enige wyse fisies te tug. Dat die tweede respondent verbied word om die voormelde kinders aan te rand. Dat 'n bevel nisi uitgevaardig word ingevolge para 1 en 2 wat as tussentydse bevele sal geld en dat alle belanghebbende partye E opgeroep word om op 14 Januarie
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1988 om 10:00 in hierdie agbare Hof redes aan te voer: 3.1 3.2 Waarom die voormelde bevele nie finaal gemaak sal word nie. Waarom die respondente nie gelas sal word om die koste van hierdie aansoek te betaal nie.'
F Thereafter the rule was extended from time to time by agreement and on 9 June 1988 I heard argument by the respective counsel as to whether the rule that had been granted should be confirmed or not.
On that day judgment was reserved and accordingly the rule was extended to 25 August 1988. The facts on which the applicant seeks relief are the following:
G The applicant and the second respondent were husband and wife and their marriage was dissolved on 23 May 1979 by the Transvaal Provincial Division of the Supreme Court of South Africa. The said order of divorce also incorporated an agreement between the parties which was annexed to the papers as annexure A.
In terms thereof, the custody and control of the two minor children born of the marriage was given to the second respondent. At the time of the application, the age of the children was as follows: A son, aged 13 years, and a daughter, aged 14 years. The son's name is Jan Stephanus du Preez and the daughter is Dinkie Marie du Preez, respectively referred to as Jan and Dinkie in the papers.
H I The said children have been under the custody and control of the second respondent since 1979, and in 1981 the second respondent married the first respondent.
It appears from the papers, and regrettably so, that a poor relationship exists between applicant, the father of the children, and J second respondent as mother of the children.
1990 (4) SA p48
FRIEDMAN J
A In consequence thereof there hardly exists any communication between the applicant and the second respondent relating to the children, or at all.
In point of fact, when any discussion relating to the children is attempted, this results in unpleasantness between the applicant and second respondent. Since the beginning of 1987 Dinkie has been a boarder in a hostel at a B high school in Lichtenburg and Jan lives with the respondents in Mafikeng. On the applicant's version Dinkie visits the respondents three weekends per month and spends the fourth weekend with him. The applicant avers that on 8 November 1987 Dinkie informed him telephonically that the first respondent had assaulted her and Jan the C previous night and that such assault was of a serious nature. As a result of a request by Dinkie not to react immediately, he did not do so, but visited her at the school on 9 November 1987, where he found, on his version, that she was very emotional and he noticed marks on her legs, arm and in the area of her chest and collar-bone. He claimed that the marks were caused by the first respondent in his assault on her. D As a result thereof he caused her to be medically examined and an affidavit by one Dr Rian Vlok was annexed as annexure B to the founding affidavit. The doctor found certain abrasions on parts of her body as well as certain marks and he states that he diagnosed the abrasions and marks as E the type that is consistent with the use of bare hands and a leather belt. Dinkie also reported that the first respondent pulled her by her hair, hit her with his fist and also a belt and in general acted towards her in a rough manner. As a result of this she fled from the house and hid away in the garden and, after the first respondent found her, the second F respondent also joined in on the assault on her by means of a belt and shoes. According to Dinkie, Jan also suffered similar treatment. The reason advanced by the first respondent for the alleged assault, according to the applicant, related to Dinkie telling him that she did not have Sunday-school homework for the
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following day and he formed the belief that she was not telling him the truth. It is clear from the G papers that the first respondent is a religious man and he is also an elder in the church. His view is, according to the applicant, that whilst in the process of assaulting the children he informed them that if he did not intervene at this stage he would be accountable to the Almighty. The applicant contends, in addition, that the second respondent H associates herself with the first respondent's conduct towards the children and at times she goes so far as to incite and encourage the first respondent to assault the children and that she also participates in the assaults. A confirmatory affidavit has also been annexed by Dinkie which is referred to as annexure C. The attitude of the applicant is that he has no objection if the I second respondent deems it necessary to discipline the children on a reasonable basis whenever necessary. He does, however, object to the assault on the children as detailed in his version. The allegations by the applicant relating to the assault on the children have been denied by the first and the second respondents. Both J the first and second respondents filed answering affidavits.
1990 (4) SA p49
FRIEDMAN J
A In his answering affidavit the first respondent states that his relationship with the second respondent and the children started at the end of 1980. He had a good relationship with them. He avers that he is very fond of children and all his life he has been involved with children and at present he is the Kommandant of the Voortrekker commando at Mafikeng.
During 1981 he and the second respondent decided to marry and they B married in September 1981. He informed the applicant of this fact and he gave him his assurance that he would not be a stepfather to the children. He informed him that the doors of his house were always open to him for access to the children. He advised him that he believed in discipline and that the applicant would have to appreciate that the children, due to the fact that they will be living with him, would fall C under his authority and he would have to have to discipline them in a fatherly manner if it was necessary. He contends that the applicant appreciated his approach and offered his co-operation. After the marriage, he and the children had an extremely good relationship and they referred to him as 'Pa Dries' and this was a D source of satisfaction to him. After a while he noticed that, after they had spent some time at the applicant's home during his period of access, their attitude changed somewhat and they informed him that the applicant was unhappy with the fact that they referred to him as 'Pa Dries'.
E It is unnecessary for the purposes of this application to deal with all the factual allegations relating to the friction between the applicant and the respondents, nor with the averments of alleged previous assaults on the children by the respondents, in that no action was taken by the applicant, and in any event are not an issue in this application. F What is relevant, however, is his account of what took place on Saturday, 7 November 1987. He states that, after dinner, he and Jan were playing on the bed where Jan was lying, and they were play-wrestling. Suddenly Jan became angry with him for no apparent reason and started shouting at him and became aggressive. He states that he administered soft fist blows on his arm and told him that he must not react so quickly. His version is that the whole incident was more playful than anything else. G After this he asked Jan to show him his Sunday-school book. He started to cry and said that he had not yet done his work. The first respondent gave him a few slaps with his flat hand and said he must complete his work and he then left his room. H Thereafter he went to Dinkie in her room and asked for her Sunday-school book. She informed him that her book was at the hostel. He did not believe her and stated that he wanted to have the book. Thereupon she started to scream and said in any event that she did not have any homework. He stated that it made no difference whether she had any homework or not he wanted to see her book and he ordered her to look I for the book and to bring it to him. He then left her room.
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After approximately ten minutes, he returned to her room, she not having brought the book, and he found her sitting on her bed with schoolbooks. He asked her where her Sunday-school book was. Again she J reacted by shouting at him and saying that she did not have any homework.
1990 (4) SA p50
FRIEDMAN J
A He then noticed that her book was in the bookcase, and asked why she told him a fib in saying that she had left her book at the hostel. She further shouted at him and stated that she was not telling fibs. He then said that he was going to give her a hiding and he went to his room to fetch his belt. In the interim she ran out of the house. B He went to search for her outside because, he states, on previous occasions at night she used to run into the street and he used to go by car to search for her. He searched a great deal but could not find her and then returned home. He also searched in the house. Both he and the second respondent were very worried and unsettled because, at that time of the night, they did not regard the streets as being safe for a young girl. C
Eventually, he found her sitting under a tree in a corner of the property behind a huge stone. He says that he ordered her to go into the house and asked the second respondent to talk to her. He then went to have a bath. After he had finished his bath, he heard the second respondent and Dinkie involved in an argument in Dinkie's room. He went to the room and D there saw Dinkie with a belt in one hand and in the other hand she was holding the second respondent's hand. Dinkie was extremely threatening, and it appeared to him that she wished to assault the second respondent with the belt. The second respondent was completely exhausted, and she told the first respondent that she did not have the strength for Dinkie, E and that he must discipline her. Thereafter the second respondent left the bedroom. The first respondent says that he then took the belt and started talking nicely to Dinkie. He informed her that they love her and that she did not conduct herself like a Christian girl and that he and the second respondent F would be accountable to the Almighty. This had no influence on her whatsoever. She stiffened herself and screamed at him: 'You are not entitled to hit me.' He says that he then ordered her to bend over and when she refused to do that, he administered a few blows with the belt because she did not bend down. She became aggressive and a type of wrestling encounter developed between them.
G He denies that he pulled her by her hair and that he assaulted her with his fists, or that he disciplined her in any improper way.
His version as to what occurred on the night of 7 November 1987 is substantially corroborated by the second respondent who also filed an answering affidavit.
H Many allegations and counter-allegations and minutiae of detail have been recounted by all the parties, many of which are irrelevant and unhelpful and do not take the matter any further.
Both counsel during the course of the application, quite properly in my view, indicated that the substantial issues for decision were the following:
I
(a) (b)
has the first respondent any right to discipline the children; or
can the second respondent as custodian parent delegate her right to discipline the children to a third party such as the first respondent?
Mr Pistor , on behalf of the applicant, submitted that the first respondent has no authority to impose disciplinary measures on the children and, in any event, there was no investigation by him as to why J the children had to
1990 (4) SA p51
FRIEDMAN J
A be chastised. He contended furthermore that the first respondent, in disciplining the children, did not conduct any proper enquiry or investigation.
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Mr Maree, on behalf of the respondents, contended that the second respondent as custodian parent was entitled to delegate her authority to B discipline the children to the first respondent, even to administer moderate corporal punishment, and, in any event, there was an agreement between them, and also between the first respondent and the applicant, to the effect that the first respondent would be entitled to discipline the children while they lived with him. Another relevant consideration relating to the hearing of the C application was whether the matter should be referred for viva voce evidence, in that on the papers it was difficult to determine which version was in fact the correct version. Inasmuch as this is an application involving the rights of parents and, in the instant matter, a stepfather to discipline and chastise children, and insofar as all the parties to the application have the D interests of the children at heart, and further having regard to the very costly nature of a trial, I am of the view that I can decide the substantial issues on the papers. A. Rights of parents relating to parental authority It is settled law that parents have the right and power to administer minor children for the purpose of correction and education.
E
punishment to their
In order to achieve this object parents have the right to chastise their children. The chastisement must be moderate and reasonable, even when it takes the form of corporal punishment, which in turn must be F restrained and tenable. See R v Le Maitre and Avenant1947 (4) SA 616 (C); R v Muller1948 (4) SA 848 (O); Hiltonian Society v Crofton1952 (3) SA 130 (A); R v Scheepers 1915 AD 337 at 338; R v Jacobs 1941 OPD 7; R v Roux 1932 OPD 59 at 61; R v Liebenberg 1917 OPD 67 at 69; R v Theron and Another 1936 OPD 166 at 176 and S v Lekgathe1982 (3) SA 104 (B) at 109A. See also Snyman Criminal Law at 107; J C van der Walt Delict: G Principles and Cases at 47; Boberg The Law of Persons and the Family at 464 - 6; Spiro The Law of Parent and Child 3rd ed at 83. In Germani v Herf and Another1975 (4) SA 887 (A) it was held that a custodian is entitled to use reasonable force to compel an unwilling or recalcitrant child to submit to the non-custodian parent's right of H access. Furthermore, the custodian parent can also ask the non-custodian parent to use reasonable force to compel an unwilling child to submit to the non-custodian parent's rights of access. Even while the child is temporarily under the control of the non-custodian parent pursuant to a right of access, the parental authority revives, and the non-custodian parent in these circumstances I can use reasonable force to correct or discipline the child should it be necessary. To be justifiable the punishment must be equitable and fair. In determining the reasonableness of the punishment the following circumstances must be considered. This list is not exhaustive: (i)
J
the nature of the offence;
(ii)
the condition of the child, physically and mentally;

1990 (4) SA p52
FRIEDMAN J
A
(iii)
the motive of the person administering the punishment;
(iv)
the severity of the punishment, ie degree of force applied; (v) the object used to administer punishment;
(vi) (vii)
the age and sex of the child; the build of the child.
B See R v Schoombee 1924 TPD 481 at 483; R v Theron (supra at 176); Hiltonian Society v Crofton (supra at 134); R v Jacobs (supra at 10); and Tshabalala v Jacobs 1942 TPD 310 at 313.
In R v Janke & Janke 1913 TPD 382 at 385 - 6, Mason J said:

'The general rule adopted both by the Roman, the Roman-Dutch law and the English law is that a parent may inflict moderate and reasonable C chastisement on a child for misconduct provided that this is not done in a manner offensive to good morals or for other objects than correction and administration.... The presumption is
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that such punishment has not been dictated by improper motives and the court will not lightly interfere with the discretion of parents or those empowered with a similar authority.... The character of the offence, the amount of punishment inflicted, the bodily and mental condition of the child, the D nature of the instrument used and the objects, purposes and motives of the person inflicting chastisement are all matters which have to be considered. A nervous or highly sensitive child may, for instance, be seriously affected by a whipping which would be harmless in the case of a more robust constitution. And where the object of the whipping is not really for the purposes of correction or by way of admonition or instruction or the proper vindication of authority (see Voet 47.10) E those guilty of such conduct may be held liable to the law....'
It must also be emphasised that a parent who exceeds the bounds of moderation, or who acts from improper or ulterior motives, or from a sadistic propensity, may well face civil and criminal liability.
F
B. Delegation of the right to chastise
May a parent delegate the right to chastise to another person? It is accepted that by common law persons in loco parentis, such as housemasters, principals and teachers, have the power to chastise, and administer punishment to pupils who are under their control and care. This is done in order to maintain discipline and control of misbehaving G pupils. As in the case of parents it must take the form of moderate chastisement, and is subject to the same limitations. A teacher or housemaster or principal of a school has the right to inflict moderate and reasonable corporal punishment, not only as a result of delegation by the parent, but also in his/her own right. See R H v Roux 1939 OPD 59 at 61; R v Le Maitre and Avenant (supra ); R v Muller (supra ); Hiltonian Society v Crofton (supra ); R v Scheepers (supra ); and R v Jacobs (supra ). For the purposes of this judgment I have not considered, nor is it necessary to consider, the limitation on the teacher's authority in this respect by various legislative enactments.
I On the authorities that I have cited, I come to the conclusion that a parent does have the right to delegate the authority to chastise a child to a person in loco parentis, subject to the conditions that I have specified.
On the basis of the aforegoing there seems to be no reason why a parent or a person in loco parentis may not delegate the actual administration of corporal punishment to another person. See J C van der J Walt Delict:
1990 (4) SA p53
FRIEDMAN J
A Principles and Cases at 47; Tshabalala v Jacobs (supra ); R v Le Maitre and Avenant (supra ). It also appears that a parent may delegate the right of chastisement and the decision whether and how to chastise. See Snyman Criminal Law at 107.
This being the case, the parent can only delegate such rights as he or she has, and nothing more. Consequently the person to whom the right of B chastisement is delegated has not a greater or more extensive right than the parent has. In the instant matter the second respondent has the right, as custodian parent, to chastise her children, the concomitant of which is also to inflict moderate and reasonable corporal C maintain authority and discipline, subject to the limitations punishment on them to mentioned. Concerning the first respondent, the second respondent may delegate this right to him, which he may only exercise on the same terms and conditions as the first respondent. His position at common law would be no different to that of a teacher.
D He is the head of the household and unless he is party to or assists the second respondent to maintain discipline in the home, the children may well find themselves in an atmosphere where there is no aim, direction or purpose in their upbringing.
Nowadays it is more important in a society where permissiveness is escalating for children to be inculcated with a respect for discipline E and authority, and generally instruction and guidelines for correct and proper behaviour. If the second respondent enlists the assistance of the first respondent for these purposes, it is his duty to support and assist her. F He may not, however, exceed the limit of his rights, nor mete out a greater degree or nature of punishment than the circumstances require. On no account is he, however, to exceed the bounds of reasonableness and moderation in chastising the children, by way of administering corporal punishment. I must assume in his favour that he
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is not, nor will he be, actuated by improper motives. Conversely the applicant as the natural father, and non-custodian parent, has also the same right and authority while the children are with him.
G On the papers the conduct of which the respondents complained of occurred on the night of 7 November 1987. The children have in fact been with them for a period of approximately seven years. The applicant raises no objection to the second respondent continuing to be the H custodian parent.
In order to regularise the position between the parties and the children, and inasmuch as the Court is the upper guardian of minors, it is necessary to adjust and regulate the conduct of the respondents concerning their authority to discipline the children. Accordingly I order
I
(a)
the second respondent has the right and power to chastise the minor children, the said chastisement must be moderate and reasonable and includes the right to impose moderate and reasonable corporal punishment;
(b)
the first respondent may exercise the same rights as the second respondent if requested to do so by the second respondent, J subject
1990 (4) SA p54
FRIEDMAN J
A
to the same limitation, or if he is in a position of loco parentis during the temporary absence of the second respondent, again subject to the same condition; neither respondent shall molest the children or exceed the bounds of moderate and reasonable chastisement in the disciplining and correction of the children; the rule nisi is discharged;
(c)
B
(d)
(e)
each party should bear their own costs.
In that this application concerns the welfare of the minor children, and assuming that all parties have acted from proper and just motives relating to the disciplining of the children, I have decided not to C award costs to either party. In such a situation there are in reality no winners. There must be an accommodation between the parties and unless the position relating to the discipline to be applied to the children is regulated and stabilised, the parties may be involved in a multiplicity of litigation at great cost to them.
D In this dispute it is hoped that the order made will induce the parties to settle their future relationship concerning the children, to the mutual benefit of both parties.
Another consideration that prompted me to depart from the usual rule of awarding costs is that the applicant was entitled to come to Court on the basis of the information received from the children. So were the E respondents entitled to put their version before the Court. I believe that the order that I have made is proper and necessary in the circumstances. Consequently there is no need for it, nor do any substantial reasons emerge from the papers, why the penalty of paying the other party's costs should be visited on the parties. F Applicant's Attorneys: Louis Smit Inc. Respondents' Attorneys: Ackerman & Maree.
2005 Juta and Company, Ltd.
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