The Constitutional Court judgment on corporal punishment at home – Freedom of Religion SA v Minister of Justice and Constitutional Development and Others – is a decision that has the country on ‘tenterhooks and in heated conversation’.

‘Not everybody agrees that corporal chastisement in the home is inherently wrong and evil,’ says the University of Limpopo’ Law Professor Dr Omphemetse S Sibanda – ‘even the Constitutional Court in part expressed itself in a manner suggesting that there can be loving corporal punishment’.

He believes the import of the judgment is not criminalisation of spanking by the Bench. Rather, it means that the common-law defence of reasonable and moderate parental chastisement is constitutionally indefensible. The necessary legislative interventions, he adds, must now kick in.

In an analysis on the Daily Maverick site, Sibanda says this judgment has nudged SA closer to fulfilling its international obligations on protecting children, in terms of Article 19 of the UN Convention on the Rights of the Child.

‘SA can now also be added to at least 54 states worldwide that have reformed their laws to clearly prohibit all corporal punishment of children.’

Sibanda says as a society, we all have a role to play in helping usher in the new parenting without a chastisement dispensation, and that accredited diversion programmes and diversion service providers in terms of section 56(2)(c)(ii) of the Child Justice Act have an ‘invaluable’ role to play.

‘Parents who fall foul of the law on corporal punishment may be diverted to these service providers to help them address humanely their children’s behavioural challenges and to correct and/or to teach them other methods of corrective parenting and responsible parenting.’

Government, too, has an urgent obligation to raise awareness that spanking is not allowed and that there are other effective and non-violent ways to manage a child’s behaviour.

‘This entails a parenting education drive and positive skills development. The various family and parent support structures and institutions must be revitalised.’

However, Sibanda warns: ‘Not everybody agrees that the use of corporal chastisement in the home is wrong, therefore there is a contest against a blanket prohibition against spanking. The difficulty is that there is no common understanding and approach on how to proceed with spanking in the home without physically and emotionally harming the child.’

He notes that the Constitutional Court predicted a flood of assault cases against parents, but hoped Parliament would find a way to deal with the situation and the consequence of its judgment in a more embracing and consultative manner before it ‘pronounces finally on an appropriate regulatory framework’.

Full analysis on the Daily Maverick site

Freedom of Religion SA v Minister of Justice and Constitutional Development and Others