Brand “spanking” new law – South African Constitutional Court Outlaws Corporal Punishment of Children

by | Nov 5, 2019

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About Jade Weiner

Jade Weiner is a qualified Attorney, Notary Public and Mediator from South Africa. After completing her articles of clerkship at ENS Africa, she chose to leave corporate practice and volunteer with various NPOs, gaining experience in entrepreneurship, female empowerment and skills development. Jade served as a law clerk for Chief Justice Mogoeng at the Constitutional Court of South Africa and worked as legal researcher at the Helen Suzman Foundation NPO- working to promote and honour the rule of law. Jade has recently graduated with her BCL degree from the University of Oxford focusing on gaining knowledge and skills to best pursue justice, freedom and fairness for all.

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Jade Weiner, “Brand “spanking” new law – South African Constitutional Court Outlaws Corporal Punishment of Children, (OxHRH Blog, November 2019), <https://ohrh.law.ox.ac.uk/brand-spanking-new-law-south-african-constitutional-court-outlaws-corporal-punishment-of-children>, [Date of access].

On the 18th of September 2019, Chief Justice Mogoeng handed down a unanimous judgment declaring the common law defence of moderate and reasonable chastisement constitutionally invalid.

Freedom of Religion SA (FoR SA) argued that parents should be able to use physical force upon a child as a means of corrective educational discipline. The state should respect the divide between the public and private  and allow parents to raise their children according to their own beliefs, traditions and religions as some “scriptures and other holy writings permit, if not command, reasonable and appropriate correction of their children.”

FoR SA argued that there was a difference between reasonable and moderate chastisement and assault and abuse. The common law defence did not protect against assault and abuse, it protected parents from the risk of assault convictions for “moderate” chastisement.

The Court held that parental rights to freedom of religion do not include the right to discipline either in international or South African law. According to this judgment, religious parents are not prevented from disciplining their children, they are merely not permitted to discipline their children using violence. A parent who believes that it is their “biblically-ordained responsibility” to chastise their child will be compelled to choose between the law of the land or following their religious convictions. The only legal defence that could protect  parents from conviction for assault is the de minimis principle that states that the law does not concern itself with trivialities. Accordingly, the “trivial” assault, while still unlawful, may not be punishable.

Mogoeng, CJ held that the common law defence was inconsistent with the provisions of section 10 and 12(1)(c) of the Constitution. The child’s rights, to both dignity and freedom and security of the person are limited and violated. The Court acknowledged that: chastisement i) causes the child a sense of shame and of feeling less dignified than before and ii) constitutes violence, broadly defined, to include all forms of chastisement from public and private sources.

Such violation and limitation cannot be justified under the section 36 inquiry, as the best interests of the child are of paramount importance in every matter concerning the child. Moreover, the Court held that there was no evidence to demonstrate that the benefits of chastisement outweigh its disadvantages, and thus justify the limitation.

Parental discipline aims to raise responsible and disciplined citizens. The “positive parenting”  approach,  put forward  by  the friends  of  the  court, which  relies on communication and educating the child about the “do’s and don’ts of life” is a less restrictive means of achieving arguably the same purpose of the moderate chastisement.

The South African Constitution aims to redress and repair the violence and indignity of the past by building a democracy that protects and promotes dignity, equality and freedom for all. Children are recognised as independent individuals, entitled to enjoyment of human rights. Recognising that children are vulnerable and often unable to vindicate their rights alone necessitates a shift in our culture and our law to be child sensitive.

By outlawing moderate and reasonable chastisement, South Africa is at the forefront of global progress towards prohibiting all forms of corporal punishment against children with only 58 states opting for full prohibition.

In South Africa, corporal punishment is one of the key drivers of the high level of violence against children. The ruling from the highest court in the land that any violence against children, no matter the extent, or intention, is unlawful, will do well in creating a paradigm shift in how both people and the law treat and regard children.

However, it is not enough for the law to make a declaration, widespread interventions are needed to support a change in the attitudes and behaviours that perpetuate violence against children. Physical violence in the home needs to be guarded against while respect, understanding and communication needs to be encouraged in order to create a new social norm.

The judgment draws a clear line stating that no physical violence is permitted against children instead of outlining blurry and malleable “guidelines” that permit chastisement proclaiming to be moderate and reasonable.

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