Ruling against spanking children widely hailed
The judgment arose from an appeal by a father who had been found guilty of assault because he beat his 13-year-old son in a manner that exceeded the bounds of reasonable chastisement.
Judge Keightley found protecting children was particularly important in the context of the high levels of child abuse and violence in South Africa.
Dr Stef fi Rohrs, a senior researcher at the Children’s Institute at the University of Cape Town, which was an amici curiae in the matter, hailed the ruling as an important first step. “We’ve been wanting legal recognition that this is a crime for a long time.
“The real work now will be to change people’s attitudes and behaviours in how they discipline. The law in itself won’t change that.”
But Michael Swain, the executive director of Freedom of Religion South Africa, says it remains “per- suaded there’s a fundamental and obvious difference between violence and abuse, and reasonable and moderate chastisement in love.
“It’s unfortunate the judgment does not recognise this distinction and considers chastisement in all circumstances to be harmful to children.
“The judgment makes serious inroads on parental authority, as well as the freedom of millions of South African parents who believe that reasonable and moderate physical chastisement done from time to time, always in love, is in the best interests of their children.”
It’s always been a crime of assault to hit a child – even your own child – but in the event of being charged, if a parent had a special defence which said that if the chastisement was reasonable, they would not be found guilty.
“It is that special defence that this judgment has removed, through a development of the common law, to bring it in line with the constitution,” explains Sonke Gender Justice.
The court emphasised the intention was not to charge parents, but to guide and support them to find more positive and effective ways of disciplining their children.
Swain said: “In practice, this (ruling) means it’s now illegal for parents to spank their children. If they do, they may be charged with assault and criminally prosecuted. The judgment, which only applies prospectively, suggests that parents will probably not end up in jail or have their children removed (although this remains a legal possibility).
“An investigation by a social worker may follow, however, and parents may be ordered by the children’s court to implement ‘positive parenting’. Of course, should parents thereafter continue to spank their children, more severe consequences will follow.”
Wessel van den Berg, the child rights and positive parenting portfolio manager for Sonke Gender Justice, also an amici curiae in the case, said a large body of research showed there was a strong association between men’s use of violence and their exposure to harsh physical punishment as children.
Professor Shanaaz Mathews, the director of the Children’s Institute, said: A significant proportion of children experience beatings by caregivers every day or every week and often such beatings are for minor transgressions.”
The judgment points out that half of the countries in Africa have publicly committed to forbidding corporal punishment in the home, including South Africa.
This week, Scotland confirmed the smacking of children will be banned.
The Reverend Moss Ntlha, of the Evangelical Alliance of South Africa, said: “Spare the rod, spoil the child has merit, obviously on the basis that you don’t go overboard and be reasonable in your application of discipline in the home.”
But Lois Moodley, of Save the Children SA, said: “Parents need to be retaught as we often use physical discipline as our first port of call.
“We’re encouraging a closer bond between parents and their young children because we’ve found those parents are less likely to use violence or physical punishment.”