Court upholds children's rights in spanking case
The common-law defence of reasonable chastisement can no longer be used when spanking a child, the Constitutional Court ruled yesterday. TimesLIVE says the court's upholding of a ruling by the High Court to do away with the defence comes at a time when violence against women and children has been a burning issue.
The issue reached the apex court for a final decision after civil society group Freedom of Religion SA (FOR SA) challenged a 2017 ruling by the Gauteng High Court (Johannesburg) that effectively ruled it was illegal for parents to spank their children.
The case has its origins in the conviction of a father for assaulting his 13-year-old son. The father later argued, in his defence, that he was administering moderate and reasonable chastisement under common law. But the High Court ruled that this was unconstitutional on the grounds that it violated the child's right to equal protection of the law, dignity, freedom from all forms of violence and degradation, bodily and psychological integrity, and the child's right not to be discriminated against based on age.
FOR SA appealed in the Constitutional Court, arguing that it acted in the public interest on behalf of those who 'believe that the scriptures and other holy writings permit, if not command, reasonable and appropriate correction of their children'.
The organisation argued that parents had a right decide for themselves what was in the best interests of their children.
The unanimous judgment effectively means spanking a child is now illegal as it equates to assault and parents can be criminally prosecuted for it, notes a GroundUp report.
The court ruled spanking was in contravention of section 12(1)(C) of the Constitution which said every person has the right to freedom and security of the person which includes all forms of violence from either public or private sources.
‘All forms of violence’ meant moderate, reasonable and extreme forms of violence, the judges said.
Section 10 of the Constitution also said: ‘Everyone has inherent dignity and the right to have their dignity respected and protected.’ This included children who are constitutionally recognised as independent human beings with a right to dignity.
‘Chastisement does by its very nature entail the use of force or a measure of violence … The objective is always to cause displeasure, discomfort, fear or hurt,’ read the judgment.
‘The application of force or a resort to violence, which could be harmful or abused, cannot in circumstances where there is an effective non-violent option available be said to be consonant with the best interests of a child.’
The court said it was not in the best interest of a child to have no discipline at all, but moderate and reasonable chastisement as a tool for discipline could not be used at the expense of a child’s right to dignity.
‘It suffices to say that any form of violence, including reasonable and moderate chastisement, has always constituted a criminal act known as assault … Identical conduct by a person other than a parent on the same child would otherwise constitute indefensible assault,’ the judges said.
© Juta and Company (Pty) Ltd 2016
Article disclaimer: Juta expressly reserves the right, in its sole and absolute discretion, to alter or amend any criteria or information set out in this article without notice. Accordingly, any information, including journalistic articles, are not intended to constitute legal, financial, accounting, tax, investment, consulting or other professional advice or services. Before making any decision or taking any action based on the information contained in this article, which decision or action might affect your personal finances or business, you should consult a qualified professional advisor.