Parents who give their children a hiding will no longer be able to use the defence of ‘reasonable chastisement’ if they are later accused of assault.
This comes after the South Gauteng High Court in Johannesburg ruled on Thursday that parents can’t be exempted from the law, even when their religious beliefs demand that they discipline their children.
The judgment, handed down by Judge Raylene Keightley, was welcomed and criticised, especially by religious organisations. Keightley found that a Muslim father who kicked and beat his 13-year-old son for visiting pornographic websites, could not rely on the defence of “reasonable chastisement”.
She found that the common law defence is unconstitutional and invalid.
Keightley, who was assisted by Judge Ellem Francis, heard representations from various interest groups before delivering her ruling.
The Centre for Child Law, the Quaker Peace Centre and Sonke Gender Justice were all in favour of the defence being declared unconstitutional.
Non-profit Christian organisation Freedom of Religion SA (FOR SA) argued in favour of retaining the defence.
Keightley ruled that parents who believe in corporal punishment can’t put their religious beliefs above the interests of their children. She did, however, say that parents who administer corporal punishment to their children should not be randomly prosecuted and punished. Where possible, other interventions should be resorted to first.
FOR SA executive director Michael Swain said he condemns any form of violence against children, but that there is a fundamental difference between assault and “reasonable and measured discipline” out of love.
“It’s disappointing that the judgment does not consider this distinction, which is also recognised in the social sciences and views discipline in all circumstances as detrimental to children,” he said.
Swain said although the court has a duty to keep the law in line with the Constitution, social policy issues such as these should be decided by Parliament.
“In fact, when the issue was before Parliament a few years ago, it decided not to abolish reasonable chastisement. That was because Parliament believed there were already laws in place to combat abuse and violence.”
He does not think the judgment will help protect vulnerable children.
Laws to protect children
But Karabo Ozah, deputy director at the Centre for Child Law at the University of Pretoria, is in favour of abolishing the defence.
“Research shows that corporal punishment has a negative effect on the development of children and contributes to violent behaviour,” she said. She mentioned the example of children who hit other children because they have been physically disciplined.
Children’s rights will be better protected in line with what is happening around the world, she said.
This week, Scotland decided to abolish all corporal punishment for children. This led to calls for the ban to be extended to the rest of Britain.
Professor Awie Greeff, of the department of psychology at the University of Stellenbosch, said the majority of citizens do not have the knowledge to administer corporal punishment within proper bounds and in the correct manner.
“Many people can’t think of alternative forms of punishment, that’s why it’s important that laws are implemented to protect children.
“People who are not psychologists will often tell you they received hidings when they were children and it didn’t do them any harm. That is all good and well, but unfortunately there is always going to be somebody who has been subjected to extreme corporal punishment and who will associate the pain of it with the person who administered it.”
He said corporal punishment is usually the first option, because alternatives, such as taking away certain privileges, are often more difficult to implement.
Until now, parents were able to reasonably punish their children in terms of the common law.
William Booth, a criminal law attorney, said cases of corporal punishment will in future be treated as ordinary criminal cases. But punishment for parents who are found guilty would vary.
In many cases, mediation or other interventions will likely be chosen as alternatives to direct punishment.[Source: News24]