November 2, 2017

Spare the rod and spoil the child? Landmark ruling against smacking your child

 

I can recall my gran telling us that she grew up with the saying, “Spare the rod and spoil the child”, which simply meant that if a children were not disciplined, they would not learn obedience and good manners. Discipline could mean anything from verbal chastisement to the use of physical force, like a hiding.

Having grown up in an era, it never crossed my mind that, on the rare occasion that I was so naughty that a hiding was necessary, a hiding would fall within the definition of assault under SA law.

However, under our common law, if you, as a parent, gave your child a hiding you could argue that your use of physical force fell within the bounds of reasonable and moderate chastisement. As it is a common law rule there are no hard and fast rules as to what constituted reasonable chastisement.

In a recent case heard before the Gauteng Local Division, the court was called upon to hear a matter and consider whether a parent’s right to discipline their child was compatible with the Bill of Rights.

In coming to a decision the court bore the following in mind:

  • Physical chastisement invariably involves a measure of violence which breaches the physical integrity of the child;
  • The offence of assault under the common law is aimed at protecting bodily integrity;
  • While the reasonable chastisement defence states that it is lawful for a parent to breach that integrity, this is seen to be a clear violation of the rights guaranteed under Section 12 of the Constitution.

The existence of a defence that legitimises assault only in relation to children is fundamentally at odds with the best interests of the child principle.

The court, upon handing down its decision, found that the common law principle of reasonable chastisement is unconstitutional and no longer applies in our law, and that such a decision would be applicable to conduct that takes place after the date of judgment.

The impact of this case is that whiet previously you stood the chance of being acquitted on charges of assault if you could prove that the chastisement was reasonable, this defence can no longer be raised as a special defence if you are criminally charged.

It was emphasised by the Judge that the intention of this decision is not to charge parents of a crime but rather to guide and support parents in finding more positive and effective ways to discipline their children.

Marisa De Aguiar

 

 

 

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