On October 19, the High Court in Johannesburg ruled that the common-law defence of "moderate and reasonable chastisement" was unconstitutional.
Put simply, the common-law defence which allowed parents to use physical force to discipline their children as long as the force was "moderate" and "reasonable" has been abolished.
This means that the law now affords children the same protection from violence as adults. Corporal punishment, such as smacking, spanking, slapping, shaking and caning children, is no longer allowed in the home.
Proponents of corporal punishment will be quick to argue that the abolishment of the common-law defence will lead to loving parents being criminalised and jailed, and that children will be "out of control" without physical discipline.This fear is unfounded; it is highly unlikely that abandoning the common-law defence will result in increased criminalisation of parents for smacking their children as courts have to consider the best interests of the child in matters that affect the child.
In cases of "moderate" corporal punishment it will generally not be in the best interests of the child to have their parents prosecuted or imprisoned, or for the child to be removed from their family.The prosecution of parents will be reserved for cases where other interventions have failed or for cases of harsh physical discipline.
This is the approach to criminalisation that has been used so far.
The intention of the judgment is to bring the law in line with the constitution and the Children's Act. As pointed out in the high court judgment, one of the objectives of the Children's Act is "to promote positive parenting and positive discipline, rather than to criminalise errant parental behaviour".
The primary approach of a court dealing with parents who have used corporal punishment would therefore be to order the parents to participate in prevention and early intervention programmes, such as parenting programmes.
The change to the common law does not prohibit parental discipline. Parents are still allowed to discipline their children, but not by violent means.
Given that many parents are unaware of alternatives to corporal punishment, we need awareness campaigns and education on positive forms of discipline such as time out, withdrawal of privileges, etcetera, and their effectiveness.
Proponents of corporal punishment also argue that the state cannot "tell me what to do in my home" and that prohibiting this type of discipline violates parents' right to family, freedom of religion and cultural belief.
The argument that the state cannot interfere in people's private lives or homes is incorrect...