The Constitutional Court of South Africa has officially ruled that corporal punishment is unacceptable under the current provisions of the constitution. Parents are no longer able to use “modest and reasonable [physical] chastisement” or “physical correction” in an effort to instil discipline in their children. The court upheld the South Gauteng High Court’s 2017 ruling against corporal punishment in the home.
In that case, a father, a devout Muslim, had beaten his 13-year-old son severely because he found pornography on his iPad, and argued that he was entitled to do so because he was chastising his son as per his religious beliefs. An organisation called Freedom of Religion SA turned to the highest court in the land to appeal the 2017 ruling.
As South Africans remain divided on whether the landmark ruling will benefit society or not, FOR SA warns that the ruling will lead to major societal problems. Sonke Gender Justice, one of several organisations who served as respondents in the case, have welcomed the ruling, saying it is “a victory for parents and children”.
“I think it’s a very disappointing ruling because it isn’t just illegal, it makes it a criminal offence to in any way, shape or form have any form of physical correction by a parent to a child. We’re not talking about beating your child and hurting him or injuring him – that’s always been illegal.
With this defence of modest and reasonable chastisement which has now been declared as unconstitutional, the law has protected parents from a charge of criminal assault…but now a parent can potentially – and in all certainty at some point will be – charged with a crime of assault. If convicted, even if they don’t go to jail for it, they will have a lifetime criminal record,” warned executive director of FOR SA, Michael Swain.
“Many loving parents – in particular, faith-based parents – who may feel in terms of their faith they have some form of responsibility to physically correct their children, are now being effectively criminalised and that has massive implications for society. It is really a societal upheaval. One of the very concerning aspects of this case is that effectively now the state is telling you how to parent your child.”
Swain argues that the balance of power in homes is being altered in a dangerous way and that the ruling not only affects the wellbeing of children in the country but forces parents to choose between obeying God or the laws of the land.
“It alters the whole balance of power in the home and it has been negative wherever it has been applied,” said Swain before referring to international bannings of the use of corporal punishment by parents.
“Here, what we’re seeing is that if you are a parent who, from a religious point of view, believes your faith even instructs you to use some form of mild corrective physical discipline as a part of your parenting of your children to really teach them the difference between right and wrong in the loving context of a home… Who do you obey? Do you obey your conscience before god…or do you obey the laws of the land?”
“It’s terrible if parents now face a conflict between their faith and conscience and obeying the laws of the land. You will turn good and honourable parents into potential and real criminals in the event that they’re convicted – which they now could well be.”
Swain added that if children don’t learn from “mild corrective physical discipline” within the context of a loving home, they would not learn it in a loving and graceful way from society.
Wessel Van Den Berg of Sonke Gender Justice, however, argues that the court’s ruling will move South African society forward in reducing violence and making children in the country safer.
“We are really happy,” said Van Den Berg.
“…this is a victory for parents and children across South Africa toward reducing violence, making children safer and making parents more equipped to deal with their children.”
Van Den Berg says that while he agrees that parents need the freedom to raise their children in the way they see fit, corporal punishment “doesn’t hold” with South Africa’s constitution. He also argued that parents should dispel the myth that they will now be under threat, saying that courts will decide on what is in the best interest of the child when cases are reported and that several measures could be followed as alternatives to facing criminal action.
“I do think parents need the freedom and support to parent children in the way they see fit… but the argument that that should allow for someone who is stronger than someone else to cause them pain, no matter how light, simply doesn’t hold with our constitution as the judgement proved,” he said.
Swain, however, remained unimpressed.
“I think it’s important to bear in mind that regardless of what the Sonke Gender Justice spokesperson said, the Constitutional Court said that it is a crime and that any form of physical correction of a child amounts to violence within the constitution and therefore is prohibited. We must not be naïve and just think that this thing is not going be a problem…it’s going to be a major societal problem for South Africa going forward.”
“I’m very sorry – the state has decided that they’re better parents than you are and you must decide what you will do with that.”
A Muslim opinion
Muslim educational psychologist and motivational speaker, Dr Edris Khamissa has said that he has no issue with the ruling and regards corporal punishment and discipline as two separate concepts.
“Discipline changes behaviour – corporal punishment suppresses behaviour,” said Dr Khamissa.
“If you look at the whole issue of corporal punishment and the long-term effect it has…they [children] begin to manipulate others, manipulate situations, brutalise and continue to do things that are wrong or if they can get away with it. Discipline and punishment are not the same thing.”
From an Islamic perspective, Dr Khamissa explained that the Nabi (SAW) said parents need to introduce salaah to children at the age of seven and that if children are then unable to make salaah by the age of ten, they can be struck.
Interpretations differ with regard to striking, however. Some argue that striking refers to taking any necessary steps to instil discipline, not necessarily to beat a child into adherence or compliance.
“In the end, if you are going to use corporal punishment so that they read salaah, you are not going to introduce a love for salaah – they will do it for the sake of doing it. You find when kids grow up in a home where they are brutalised, it has a profound impact on their self-esteem, emotional intelligence and the way they see others. We need to be models for our kids’ behaviour,” said Dr Khamissa.