Spanking ruling unpacked

Parents are not allowed to spank their children following a ruling by the Constitutional Court

Children’s rights groups have welcomed a landmark Constitutional Court ruling that spanking children is illegal.

Last week, Chief Justice Mogoeng Mogoeng dismissed the appeal by Freedom of Religion South Africa (FRSA) which wanted the court to reinstate “reasonable moderate chastisement” as defence in the use of corporal punishment.

In his judgment, Chief Justice Mogoeng said any form of violence, including moderate chastisement, had always been a criminal act, and spanking children was against sections 10 and 12 of the Constitution.

Observatory-based NPO Molo Songolo said parents and caregivers needed to be held accountable. Director Patric Solomons said the ruling protected children from harm by those who were meant to protect them.

“We cannot have a law or socially accepted practice that harms children and violates their rights. Far too many children have been harmed, some even killed as a result of parents and caregivers hitting, beating and slapping their children.”

Mr Solomons said the ruling did not create a new offence, as hitting a child had always been assault under the criminal law, but parents had previously argued reasonable chastisement as a defence.

“The social practice and norm of hitting children because they did something or said something their parents did not agree with was a contentious issue – parents and caregivers see themselves as having ownership over their children and can do with them what they liked.”

The Parent Centre in Wynberg, which offers various training programmes to teach parenting skills, supported the ruling, saying the country had a culture of violence.

“We strongly feel that we can break this cycle of violence, but the change has to start in the home, with parents role modelling empathy, non-violent assertiveness and focusing on relationship building and connecting to their children,” said the centre’s Jann Watlington.

Parents should reflect on their role and find other ways to discipline their children.

“This is something new and different to the way they have been raised and have been raising their children. Human nature makes us prefer that which we are comfortable with because trying something new takes a lot of effort,” she said.

Ms Watlington said the centre had advocated against the corporal punishment of children since its inception in 1983.

“We were involved in the submissions to court through Legal Resources Centre. We were ‘friends of the court’. Our experience with parents over the decades is that they came to us looking for alternatives mainly because hitting children didn’t work and their relationship with their children was negatively affected by it.”

FRSA lawyer Daniela Ellerbeck, however, called the ruling “disturbing”. She claimed parents’ rights to raise their children the way they saw fit had not been upheld.

“It sets a very dangerous precedent in that the state can dictate to people of faith how to read and live out the scriptures, thereby seriously eroding their right to religious freedom. The judgment by Chief Justice Mogoeng makes criminals of many people of faith who believe that the scriptures
permit (if not command) them to physically correct their children at times, where necessary, always in love. For many, they will have no choice but to obey God rather than the law. As a result, good parents of faith who only want what is best for their children, will potentially see their families torn apart as is happening in other countries where physical correction has been banned.”

But the Children’s Rights Project of the Dullah Omar Institute (DOI) at the University of the Western Cape said the ruling created consistency across all provinces with regard to the constitutionality and use of parental chastisement.

Professor Benyam Dawit Mezmur, of the Children’s Rights Project, said: “In the current state of shocking gender-based violence crisis that South Africa faces, and since violence against women and children is inextricably linked, this landmark judgment is a very welcome milestone.”

He added: “The ruling is not to be viewed as an event but part of a process — and used as an important stepping stone in our collective efforts to support parents better, and contribute to create a South Africa that is fit for all children.”

Mr Solomons said the next step was to raise awareness about the ruling and then to educate the public about what it meant and what the alternatives were for the management of child discipline in the home.

He said that at their annual general meeting on Saturday September 21, children had raised concerns about the ruling, as some felt parents had a right to spank their children if they behaved badly; others felt the ruling would give children the licence to behave badly and do as they like and others agreed with the ruling.

“We decided to conduct educational workshops for parents and children on the issue of
corporal punishment in the home and promote alternative disciple to address bad behaviour, rudeness and children with behaviour problems. We hope to start these workshops during the annual 16 Days of Activism for No Violence Against Women and Children Campaign,” he said. Ms Watlington agreed that NGOs and government departments would need to hold awareness campaigns. “If we want to prevent the violence that is so rampant in our country, especially in Cape Town, then we need to look at prevention starting in the home. Hitting children is giving the message that violence is okay