Re­li­gious free­dom ad­vo­cates set to ap­peal cor­po­ral pun­ish­ment judg­ment

Weekend Argus (Saturday Edition) - - FRONT PAGE - ZELDA VENTER

FREE­DOM of Re­li­gion South Africa (For SA) has filed an ap­pli­ca­tion for leave to ap­peal against the re­cent judg­ment which de­clared all phys­i­cal chas­tise­ment of chil­dren by their par­ents – re­gard­less of how light or pos­si­bly well-in­tended – il­le­gal in South Africa.

The Gaut­eng High Court, Jo­han­nes­burg, ruled last month the de­fence of rea­son­able chas­tise­ment was not in line with the con­sti­tu­tion and no longer ap­plied in South African 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 crim­i­nal law.

Pre­vi­ously, a par­ent who smacked or spanked a child had a spe­cial de­fence of rea­son­able chas­tise­ment. They stood to be ac­quit­ted of as­sault if they could prove the chas­tise­ment was “rea­son­able”.

Judge Ray­lene Keight­ley, in a ground- break­ing judg­ment for the rights of chil­dren, found a de­fence that al­lowed par­ents to phys­i­cally dis­ci­pline their chil­dren was in­con­sis­tent with the con­sti­tu­tion.

For SA will ask the high court to re­fer the mat­ter to the Supreme Court of Ap­peal in Bloem­fontein. Its ap­pli­ca­tion only con­cerned the con­sti­tu­tional is­sue as to whether rea­son­able and mod­er­ate chas­tise­ment is con­gru­ent with the con­sti­tu­tion.

For SA, in­vited as a “friend of the court” in the mat­ter, took is­sue with var­i­ous as­pects of the judg­ment. Its pri­mary con­cern is that “with the stroke of a pen” the judg­ment had re­moved a com­mon law de­fence which had his­tor­i­cally pro­tected par­ents against a charge of as­sault.

“South African law is very clear that the en­gine room for law re­form is Par­lia­ment, not the courts,” said For SA’s ex­ec­u­tive di­rec­tor, Michael Swain.

“For this rea­son, judges should re­strain them­selves and not be over-zeal­ous in de­vel­op­ing the law, lest they be seen to usurp the role of Par­lia­ment.”

For SA is of the opin­ion that the court was wrong to equate rea­son­able and mod­er­ate chas­tise­ment with “abuse” or “vi­o­lence” to­wards chil­dren.

It rea­soned that there is a “clear and fun­da­men­tal dif­fer­ence” be­tween mod­er­ate chas­tise­ment by a par­ent mo­ti­vated by love and in the best in­ter­ests of their child and phys­i­cal vi­o­lence or abuse, where the state ob­vi­ously has a duty to in­ter­vene.

It will ar­gue that the judg­ment eroded the rights of par- ents to de­cide for them­selves how best to dis­ci­pline their own chil­dren.

“It dis­em­pow­ers par­ents, es­pe­cially those in poorer ar­eas and in over­crowded ac­com­mo­da­tion, who do not have the lux­ury of send­ing chil­dren to ‘naughty cor­ners’ and where there are few, if any, priv­i­leges to take away,” Swain said.

The NGO is also of the opin­ion that the judg­ment over­rides the be­lief and con­science of par­ents who be­lieve that holy texts al­low them to use moder- ate chas­tise­ment as one of the meth­ods for rais­ing and dis­ci­plin­ing their chil­dren.

While not all re­li­gious par­ents hold this view, the judg­ment nev­er­the­less has the ef­fect of in­ter­fer­ing with doc­tri­nal mat­ters, it said.

It feels that this sets a dan­ger­ous prece­dent, since the judg­ment “has ef­fec­tively cur­tailed and lim­ited re­li­gious rights and free­doms”.

For SA said it was con­cerned that the judg­ment would have the ef­fect of crim­i­nal­is­ing good and well-in­ten­tioned par­ents who love their chil­dren.

While the judg­ment points out that this is not the in­ten­tion, the re­al­ity is that the re­moval of the “rea­son­able chas­tise­ment” de­fence means that any form of phys­i­cal dis­ci­pline of a child may fall within the le­gal def­i­ni­tion of as­sault.

For SA will ar­gue that it is in the pub­lic in­ter­est, as well as in the in­ter­est of jus­tice, that the judg­ment be ap­pealed.

No date has yet been set for the leave-to-ap­peal hear­ing.

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