The ruling stems from a South Gauteng High Court matter where the Court ruled, in October 2017, that the common law defence of “reasonable and moderate chastisement” was unconstitutional. In this case, a devout Muslim father had severely beaten his 13-year-old son because he found pornography on his iPad, and argued that he was entitled to do so because he was chastising his son as per his religious beliefs.

The Court declared the right of parents to chastise their children without legal consequences as unconstitutional as it infringed upon the constitutional rights of their children, including their rights to dignity, equal protection under the law and bodily and psychological integrity. The presiding Judge, Judge Raylene Keightley, made it clear that she was not ruling against disciplining children, but rather against corporal punishment. She explained that the removal of the defence would not prevent religious believers from disciplining their children, but that they may have to consider changing their mode of discipline. In view of the importance of the principle of the best interests of the child, this is a justifiable limitation on the rights of parents, she said.

However, in November 2018, the organisation Freedom of Religion South Africa (FOR SA) argued before the Constitutional Court “to defend the rights of parents to raise their children in accordance with their moral or religious convictions.”

FOR SA asked the Court not to criminalise “well-meaning parents who love their children and only want to do what is best for them, including reasonably and moderately chastising them at times when necessary, always in love.” Their advocate argued that millions of South African parents believe that the Scriptures permit, perhaps even command, “reasonable and moderate chastisement”, and that by making this illegal these parents will face the “unconscionable choice” between obeying the law or obeying their faith, risking either criminal consequences or potentially eternal consequences.

The final judgment on this contentious issue was made by the Constitutional Court in September 2019 by upholding the aforesaid High Court ruling that the common law defence of reasonable and moderate parental chastisement of children is inconsistent with the South African Constitution.

“The vulnerability of children, their rights to dignity and to have the paramountcy of their best interests upheld, as well as the availability of less restrictive means to achieve discipline, render moderate and reasonable chastisement unconstitutional.” – Constitutional Court

This means that parents who choose to use physical punishment, such as smacking, pinching or pulling on ears, for example, could face legal consequences.

Society believes there remains a clear distinction between violence, abuse, and mild physical correction. This belief must, unfortunately, be considered in each case.

The consequence of contravening this judgment could have parents prosecuted for assault if convicted; and parents could earn a criminal record by being charged for abuse, with a possibility of children being taken away from the family homestead if the court finds these parents guilty.

In conclusion, the Constitutional Court ended its ruling by stating:

“A proliferation of assault cases against parents is a reasonably foreseeable possibility. Parliament would, hopefully, allow itself to be guided by extensive consultations, research and debates before it pronounces finally on an appropriate regulatory framework. That approach would enable it to benefit not just from lobby groups, but also from parents and possibly children themselves whose interests are at stake.

How law enforcement agencies would deal with reported cases of child abuse flowing from this declaration of unconstitutionality is a matter best left to be dealt with on a case-by-case basis.”

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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)

Guilty on the charge of…spanking
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