Spanking your child a confirmed no-no

“I’ve recently read in the news that spanking your child is no longer allowed for parents. I thought this had been settled a while ago. Why is this news again?”

Over the years parents could rely on the common law defence of reasonable chastisement when spanking a minor child.

This defence allowed that disciplinary chastisement may be done with the condition it is moderate and reasonable.

The courts relied on factors such as the nature of the child’s transgression, the motive of the parent, the force and object used to mete out punishment, as well as the age, gender and size of the child when determining the reasonableness of chastising a minor child.

This common-law defence and parents’ entitlement to administer chastisement without attracting adverse legal consequences has now been declared unconstitutional by our high court.

The matter originated from a case in the Johannesburg magistrate’s court where the father of a 13-yearold boy was prosecuted and convicted of assault with intent to do grievous bodily harm after he kicked and punched his child for watching pornographic material.

The father appealed to the high court in Gauteng and it was in this appeal that the court considered the constitutionality of the common law defence and found it invalid on the basis that it infringed several constitutional rights.

It was also this case that attracted considerable media attention as you referred to.

The view of the high court was confirmed by the Constitutional Court when an amicus curiae or friend of the court, Freedom of Religion South Africa, challenged the high court’s declaration of the constitutional invalidity of a parent’s right to administer reasonable and moderate chastisement on a child.

In considering the matter the Constitutional Court reached its conclusion primarily using section 12(1)(c) of the constitution which states “everyone has the right to freedom and security of the person, which includes the right to be free from all forms of violence from either public or private sources”.

In doing so, the Constitutional Court finally ruled on the matter and determined that any form of violence, including reasonable and moderate chastisement, constituted assault and that this common-law defence was inconsistent with various sections of the constitution and could not be used.

This finally confirmed that spanking is now illegal.