It is regarded as a landmark judgment, and for good reason – parents are no longer allowed to spank their children.
The unanimous judgment, handed down by Justice Mogoeng Mogoeng, effectively means spanking a child is now illegal as it equates to assault and parents can be criminally prosecuted for it.
The court, therefore, declared the common law defence of “reasonable and moderate chastisement” – which allowed parents to spank their children with the justification that it was discipline – invalid and unconstitutional.
The Constitutional Court in its judgment said spanking was in contravention of Section 12(1)(c) of the Constitution, which said every person has the right to freedom and security of the person which includes all forms of violence from either public or private sources.
All forms of violence now includes moderate, reasonable and extreme forms of violence, the judges said.
Goodness, this judgment is a very tough one to chew on.
Granted, children need to be protected, as all citizen enjoy this apparent right to security.
However, the judgment has set a precedent wherein the rights of children have been ruled to trump the rights of parents to raise their children within the framework of their own morals and values.
And then also you sit with the issue of the right of religion, for disciplining a child, for example, in the Christian faith is seen as an appropriator means of discipline.
For this reason the Freedom of Religion South Africa (ForSA) appealed against the South Gauteng High Court judgment handed down in August 2017 when they took a step forward to criminalise spanking.
This is a very tricky matter, and no one would want to be in the shoes of the judge who made the judgment. After all, there is a fine line between moderate chastisement and abuse.
And yes, over the years certain parents may have crossed that line, justifying their actions by saying it is their “right” and even maybe it is their religious duty to do so.
For those who went to school in South Africa before 1990, they probably suffered some or other form of punishment at school which involves spanking. And let us be honest, some of these actions of discipline bordered on being rather brutal and abusive.
Michael Swain, executive director of ForSA, said while they are utterly opposed to any form of violence against children, they see a clear distinction between violence against children and the loving, mild and moderate discipline of a parent for what he/she believes is in their child’s best interests.
And this is where the problem lies – finding a boundary between such violence and moderate discipline. And the problem is that so many parents and teachers of the past did not know where the parameters of such boundaries lie.
This landmark judgment comes at the back of a case based on a father who was convicted of assaulting his 13-year-old son after finding him watching pornography.
The father used the “reasonable and moderate chastisement” defence, claiming he was merely disciplining his son, but the High Court found his use of force exceeded reasonable and moderate chastisement.
So while it is sort of understandable why the court decided to make the ruling, we also have to consider the long-term consequences of such a judgment.
South Africa has become a country rife with lawlessness, disorder, rebellion, and violence. Therefore, there is no discipline anymore.
Our schools have become zones of anarchy, where even teachers are assaulted. Thus, there is no discipline.
We live in a country of virtually non-existent morals and values.
Is it just one’s imagination or didn’t we experience times of greater order and respect when corporal punishment was allowed at schools and in homes, even though the discipline was, at times, harsh?
Is it just by coincidence that since the government has moved to prohibit corporal punishment that our society have fallen deeper into the abyss of recklessness, chaos and a darkening immorality?
So at a time when South Africa desperately needs to address rampant ill-discipline, reflected in the way how women and children in general are treated, we, however, rule to criminalise corporal punishment.
There are those who say there are other means to discipline a child, such as taking away their cellphones, switching off the TV or engaging in an intellectual debate of right and wrong.
This might sort of work with teenagers, but try doing this with an unruly child who is not even 10 yet.
To be honest, judging by how disorderly our youth have become, partaking in crime and sustenance abuse, taking away a cellphone is hardly going to help.
ForSA also commented that while many parents may choose to raise their children without any form of physical correction, more parenting tools are needed, not fewer. Swain made the point that there may well be no naughty corners in a rural dwelling as a form of punishment and pointed out that which privileges do you take away from children who have none?
One feels the government or the court should rather have opted for a route to clearly define the boundaries of moderate and reasonable discipline, for example, using an open hand and not leaving a mark.
This in turn empowers both parents and authorities to act in the best interests of children.
Instead, following this judgment, expect the levels of disorder and lawlessness only to deepen and our youth to plunge deeper into anarchy.
Follow us on these social media platforms:
