The Constitution, Children’s Act and our criminal law have always protected children against corporal punishment.
What exactly is corporal punishment? Any punishment in which physical force is used and means to cause pain or discomfort – that, in short, is the definition by the UN Committee on the Rights of the Child. That means grabbing a kid by the ear or pinching a thigh too. To learn more, read Is spanking ever okay?
Any form of hitting or “6 of the best” has been banned in schools for 21 years. The South African Schools Act (1996), Section 10(1), states: "No person may administer corporal punishment at a school to a learner.” Contravene this and you may be charged with assault. The act goes further to prohibit psychological abuse too.
The situation was different at home, however. While the criminal law labelled smacking a child, whether yours or someone else’s, as assault, a parent could plead the special defence of moderate or reasonable chastisement if taken to court.
In this now-defunct defence, the following factors were considered: the nature of the child’s transgression, the motive of the parent, the force and object used to mete out punishment, as well as the age, gender and size of the child.
No more reasonable chastisement
In a ground-breaking ruling in the Gauteng High Court, Judge Raylene Keightley put an end to that, reported the M&G. Saying, “The common law defence of reasonable chastisement is unconstitutional and no longer applies in our law,” she ruled that if you could be charged with assault if you acted in a certain way toward another adult, that same act against your child can now land you in court too.
Judge Keightley was very clear in that she didn’t intend for parents to land behind bars, however, but instead for parents to find alternative methods of discipline, and for the state to help and refer parents to appropriate intervention systems.
This specific ruling was made in the case of YG, a religious man who assaulted his son and wife after finding porn on his iPad. His reasonable chastisement defence was rejected by Judge Keightley – the first time in a South African case, drawing a very clear line in the sand.
But… what if I’m religious?
Judge Keightley made it clear that she was not ruling against disciplining children, but rather against corporal punishment, or as it’s now to be understood, physical assault.
“The removal of the defence will not prevent religious believers from disciplining their children,” Judge Keightley said. “It is so that they may have to consider changing their mode of discipline, but in view of the importance of the principle of the best interests of the child, this is a justifiable limitation on the rights of parents.
“This is a case where I am satisfied that it is permissible to require religious parents who believe in corporal punishment to be expected to obey the secular laws," she continued, "rather than permitting them to place their religious beliefs above the best interests of their children.”
It comes as no surprise. The amendment to the law has been advocated for a number of years, and was expected to be pushed through in 2016 already.
Even in 2000, when some Christian parents felt that prohibiting corporal punishment at Christian schools violated their constitutional rights to practice their religion, the court refused to give certain schools exception, even on the basis of religion.
Though the specific court case of YG dealt with severe abuse – the boy had bruising on his legs, for example – any physical punishment will now be considered abuse. Some parents may consider a quick spank on the backside or a flick of the wrist on a child’s outstretched hand as gentler. But the problem is that with SA’s high stats of violence, domestic abuse and PTSD, who is to say even a gentle parent can’t “lose” it one day and go too far? Where is the line?
The line has been drawn in the sand: no physical pain, no psychological humiliation.
Alternative ways to discipline
Not all parents who align with a traditional religion such as Christianity and Islam, feel the need to discipline their children through hidings. Smacking was always a no-brainer, until people started questioning whether there aren’t other ways to discipline a child – in line with your family’s values and, frankly, to the benefit of society. Just as eating meat every day or taking baths were taken for granted until we realised the world we live in today cannot afford that any longer.
It may need a complete mind-shift for some parents, especially those who always say, “Well, I got hidings as a child and I’m fine today.” But the law is the law. Let’s rather work together in finding solutions to lead our kids by example, teach kindness, lay down firm boundaries and offer unconditional love.