ConCourt rules that 'reasonable chastisement' is no defence for spanking kids

18 September 2019 - 10:44 By TimesLIVE
The courts have ruled that spanking is unconstitutional on the grounds that it violates children's rights.
The courts have ruled that spanking is unconstitutional on the grounds that it violates children's rights.
Image: 123RF/prazis

Parents no longer have a defence if they are accused of assault for smacking their children at home.

The Constitutional Court on Wednesday upheld an earlier ruling by the High Court to do away with the common-law defence of reasonable chastisement when spanking a child.

The judgment comes at a time when violence against women and children has been a burning issue in SA.

The issue reached the apex court for a final decision after civil society group Freedom of Religion SA (FOR SA) challenged a 2017 ruling by the South Gauteng High Court that effectively ruled that it was illegal for parents to spank their children.

The case has its origins in the conviction of a father for assaulting his 13-year-old son in Johannesburg. The father later argued, in his defence, that he was administering moderate and reasonable chastisement under common law.

But the high court ruled that this was unconstitutional on the grounds that it violated the child’s right to equal protection of the law, dignity, freedom from all forms of violence and degradation, bodily and psychological integrity, and the child’s right not to be discriminated against based on age.

For SA turned to the highest court in the land to appeal the ruling, arguing that it acted in the public interest on behalf of those who “believe that the scriptures and other holy writings permit, if not command, reasonable and appropriate correction of their children”.

The organisation argued that parents had a right decide for themselves what was in the best interests of their children.

Times Select reported in November 2018 that FOR SA was opposed by the Children’s Institute, the Quaker Peace Centre and Sonke Gender Justice - represented by the Centre for Child Law.

LISTEN | What impact will the ConCourt ruling on spanking have?

In written submissions they said FOR SA’s arguments were nonsense and submitted that “positive parenting” was the solution.

“The aim is to develop an ethos or inner conviction in the child that will ensure that they will behave well, even when their parents are not present. It builds feelings of confidence and assertiveness rather than feelings of helplessness and humiliation,” they say.

They argued that there had been a “societal shift” towards non-violent means of correcting bad behaviour.

This is a developing story.