October 1, 2019

Spare the rod, spoil the child?

In our law, the crime of assault is the unlawful and intentional applying of force to the person of another (or threatening force). As far as the forceis concerned, the degree is irrelevant; depending on the circumstances, it could be a mere touch. 

Before 18 September 2019, parents in South Africa had a common law right to use corporal punishment to chastise their children moderately and reasonably; when doing so, this right eliminated the unlawfulness of their intentional applying of force to their children’s bottoms.  

On that day, the Constitutional Court handed down a judgment that eliminated this right of parents and has the effect that parents who use corporal punishment to discipline their child commit the crime of assault.     

The reaction has been mixed. Children’s rights consultant, Carol Bower, has said that “violence begets violence” and “we are an extraordinary violent country and when we hit children we teach them the wrong message”. Freedom of Religion, the appellant in the ConCourt case, says that the judgment “will destroy families in South Africa” and “it sets a very dangerous precedent with the state being able to step into the home and dictate to parents how to raise their children”.

The case began when a father was charged with assault with intent to do grievous bodily harm after he viciously kicked and punched his 13 year old son for watching pornography. Unsurprisingly, the father’s defense that he was exercising his right to administer reasonable and moderate chastisement to his child failed, as what he did was clearly neither moderate nor reasonable. 

The father appealed against his conviction to the High Court in Gauteng. That court of its own accord (the prosecution did not raise the issue that the defense of reasonable and moderate chastisement itself should be eliminated) went into the issue as to whether this common law right of parents and the consequent defense was constitutional. The High Court declared the defense to be constitutionally invalid and therefore unavailable to parents charged with assault upon their children.

This decision of the High Court left somewhat of a lacuna in South African law. The decisions of our provincial high courts are binding upon other high and lower courts within their provinces, but they are not binding in other provinces. So, we had the situation where it was lawful to spank your child in KZN (and the other 7 provinces), but not in Gauteng. So, if you lived in Jo’burg, you had to take your son on holiday to give him a smack! Talk about a mixed message…

And so the case came before the ConCourt. All ten judges concurred that the Gauteng High Court got it right. It is a well-reasoned judgement and makes for good reading, and is available on the ConCourt website.  

The basis of the unconstitutionality of the reasonable and moderate chastisement defense is that, in terms of section 12(1) (c) of the constitution, everyone has the right to be free from all forms of violence. Assault is violence and, as we have seen, any degree of force – even a touch – can constitute assault. The court found that, in view of the principle that the interests of the child is paramount,  to retain corporal punishment as a form of lawful chastisement, it would have to be demonstrated that there must be something about it (corporal punishment) that is evidently and obviously to the good of the child.  

South Africa is not the first African country to ban corporal punishment in all settings, including the home. This has been done in Kenya, Benin, the Republic of Congo, Togo and Tunisia. Just over 1/3 of states globally have prohibited corporal punishment in the home. Interestingly, many of these are in countries where violence has been a historic problem, not unlike our situation in South Africa.

Most of us had our fair share of hidings when we grew up – from parents and teachers alike – and turned out fine.  Most of us – me included – smacked our own children as a punishment of last resort; and they turned out fine, too. 

But like it or not, this is no longer a legal option. If you have children and want to stay out of trouble, you’d better find creative ways of disciplining them. 

At a time when we desperately want to turn our culture of violence around, this might not be a bad development.

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