Ground-breaking ruling against parents who hit children
Parents who hit children will no longer be able to plead special defence in court if criminally charged, says a Pretoria News report. Gauteng High Court (Johannesburg) Judge Raylene Keightley has ruled that the defence of reasonable chastisement was not in line with the Constitution and no longer applied in law. The judgment did not create a new offence, as hitting a child – whether your own or someone else’s – has always been assault under the country’s criminal law.
However, in the past a parent who smacked or spanked a child could plead a special defence of reasonable chastisement.
They stood to be acquitted of assault if they could prove that the chastisement was moderate and reasonable. But Keightley – in a ground-breaking judgment for the rights of children – found the defence that allowed parents to physically discipline their children was inconsistent with the Constitution. The judge emphasised that the intention was not to charge parents with a crime, but to rather guide and support parents in finding more positive and effective ways of disciplining children.
Various NGOs joined the proceedings as friends of the court, including the Children’s Institute, Quaker Peace Foundations and Sonke Gender Justice. They were represented by the Centre for Child Law, says the Pretoria News report. Keightley, in her judgment, referred to an affidavit submitted on behalf of Social Development Minister Bathabile Dlamini, who agreed that the defence of reasonable chastisement was unconstitutional. The judge pointed out that the whole orientation of the Children’s Act was towards prevention and early intervention and to guide parents towards more positive and effective parenting of children, rather than using violence. The court said protecting children was particularly important in the context of the high levels of child abuse and violence that prevailed in society. The judge emphasised that SA was not the first African country to do away with corporal punishment in the home. Keightley said while under the common law it was up to the parent to decide on the level of physical force the child deserved as punishment, this was out of line with the child-centred model of rights demanded by the Constitution. She concluded that she could find no reasonable justification to permit parents to assault their children for disciplinary purposes.
The onus rested on the state to prove a parent had exceeded the lawful bounds of authority to discipline his or her child, adds a BusinessLIVE report. Keightley said it was accepted in SA jurisprudence that children’s rights were not subordinate to the religious views of their parents. ‘The removal of the defence will not prevent religious believers from disciplining their children … they may have to consider changing their mode of discipline, but 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,’ Keightley said, noting that the removal of the defence will not open up religious parents to a greater threat of criminalisation and removal of their children. ‘This is a case where I am satisfied that it is permissible to require religious parents – who believe in corporal punishment – to be expected to obey the secular laws, rather than permitting them to place their religious beliefs above the best interests of their children,’ Keightley said.
Children's rights advocates say the judgment is a step in the right direction, according to a Cape Times report. Professor Shanaaz Mathews, of the Children’s Institute at UCT, said corporal punishment undermined trust between parent and child, and could instil mistrust, aggression and a lack of empathy in the child. Mathews said: ‘A significant proportion of children in SA experience beatings by caregivers every day or every week, and often for minor transgressions.’ The report notes Sonke Gender Justice’s Wessel van der Berg said the judgment was ‘an important step towards children’s rights and violence prevention in SA’. Meanwhile, Freedom of Religion SA’s Michael Swain said it was regrettable that the court did not distinguish between assault and ‘reasonable and mild punishment out of love’. According to a report in Rapport, he said the distinction is acknowledged in social sciences and has already been considered by the country’s lawmakers. ‘When the issue served before Parliament a few years ago, it was decided not to ban reasonable chastisement. It was because Parliament believed there were already enough laws to combat abuse of and violence against children.’
Article disclaimer: While we have made every effort to ensure the accuracy of this article, it is not intended to provide final legal advice as facts and situations will differ from case to case, and therefore specific legal advice should be sought with a lawyer.
