Olga Makhuvha

Parents in South Africa were left devastated when the highest court in the country took away the traditional method they have been using to discipline their children. This happened on Wednesday, 18 September 2019, when the Constitutional Court in South Africa ruled that it is illegal for parents or guardians to punish their children through spanking. Therefore, this section was amended because parents have been using entitlement to chastise children moderately and reasonably to escape conviction and prosecution.

One may ask what is “spanking”?

Spanking, also called corporal punishment, is a discipline method in which a person inflicts pain on a child without inflicting injury and with the intent to modify the child’s behavior. Forms of corporal punishment include hitting a child’s bottom, slapping, grabbing, shoving, or hitting a child with a belt or paddle.

Before the new judgment was handed down by the Constitutional Court, there was a difference between reasonable and moderate parental chastisement and assault and abuse of children. However, it is not that simple to separate chastisement outside the elements of assault. As a result, moderate chastisement was declared as illegal and it is classified as form of assault or children abuse.

It has always been a crime of assault to hit a child, even your own child, but if charged, a parent had a special defence wherein, if the chastisement was found to have been reasonable, the parent would not be found guilty. It is this specific special defence that this judgment has removed, through a development of the common law, to bring it in line with the Constitution.

According to section 12(1)(c) of the Constitution, all persons must be free from all forms of violence from either public or private sources. Subsequently, spanking is not consistent with this section. In practical terms, the judgment means that parents who hit their children will no longer be able to raise a special defence if they are charged.

In the case of Religion South Africa v Minister of Justice and Constitutional Development and Others, the judgment arises from an appeal by a father who had been found guilty of assault because he has beaten his 13-year-old son in a manner that exceeded the bounds of reasonable chastisement. The father, who was punishing his son for watching pornography, had argued that he had a right to chastise his son, in accordance with his religious beliefs.

The court emphasised that the intention is not to charge parents with a crime, but rather to guide and support parents in finding more positive and effective ways of disciplining children. In support of this, the court referred to an affidavit submitted on behalf of the Minister of Social Development, who agreed that the defence of reasonable chastisement is unconstitutional. The Minister pointed out that the Children’s Act aims to guide parents towards better, non-violent parenting.

The court said that protecting children was particularly important in the context of the high levels of child abuse and violence that pervade our society.

Most South African parents do not support the Constitutional Court’s judgment. Most parents take on an approach of ‘not in my house, if the child does not want to stay and abide by the rules of this house, a child must go and stay somewhere else’.  Parents are however encouraged to embrace the judgment and to take on a different approach when disciplining their children.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.