While child abuse should not be tolerated, the ‘reasonable and moderate chastisement’ of children as a form of physical discipline by their parents should be allowed, the Constitutional Court heard yesterday, according to a News24 report. This was the case put forward by Freedom of Religion SA (FOR SA), which has taken a judgment striking down this form of chastisement as a defence in criminal cases, on appeal.

In October 2017, the Gauteng High Court (Johannesburg) found that the common law defence of ‘reasonable and moderate chastisement’ was unconstitutional.

In that case, a father, a devout Muslim, had beaten his son, 13, severely 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.

FOR SA argued in the Constitutional Court yesterday that reasonable and moderate chastisement was not abuse.

It argued that parents have the right to raise their children according to their own religious and moral norms and with minimal interference from the state. While parents do not have specific rights in the Constitution, FOR SA argued that these were set out in international law and agreements which SA should abide by.

FOR SA's Advocate Reg Willis said violence is a subjective term which should be dealt with on a case-by-case basis.

However, the respondents, including the Department of Justice and Department of Social Development, argued that children's rights trump the so-called rights of parents, and that the best interests of the child are expressly put front and centre in the Constitution.

Chief Justice Mogoeng Mogoeng warned against ‘generalising’ about all kinds of chastisement.

While the respondents produced studies showing how children were negatively affected by corporal punishment, Mogoeng questioned the lack of studies presenting the ‘other side’. He warned against being ‘swept up’ in a wave of ‘activism’ without ‘balancing’ the issue.

But, notes the News24 report, he also questioned whether it was possible to overcome the constitutional right to freedom from violence, if reasonable and moderate chastisement was not outlawed. FOR SA argued that section 36, which sets out that all rights can be limited if the limitation is reasonable and justifiable, should apply.

FOR SA argued that the High Court judgment places parents in a position where they could go to jail ‘for the lightest smack’ or face the ‘eternal consequences’ of not obeying their faith. Justice Leona Theron questioned whether, given the high rates of violence against women and children in the country, all forms of violence shouldn't be banned.

Representing the departments, Advocate Ngwako Maenetje argued that the rights of the child were paramount and said that all religions were subject to competing rights.

It does not matter for purposes of section 10 of the Constitution that the parent believes that the degrading disciplinary act is to ensure the child's adherence with what the parent believes to be proper conduct. The dignity is that of the child as a rights-bearing individual, and not an extension of that of his or her parent,’ he argued.

Advocate Ann Skelton, for the Children's Institute, the Quaker Peace Centre and Sonke Gender Justice, pointed out that in banning corporal punishment, the court had found that administering it was arbitrary, placing children at risk. She said this applied, too, with ‘corporal punishment in the home’.

Judgment was reserved.

Full News24 report