Physically disciplining a child, even threatening them with a hiding, can land a parent with a criminal record, or even in prison, with an assault conviction.
“It is necessary to emphasise that, in terms of our law, the application of force, including a touch depending on its location and deductible meaning, or a threat thereof constitutes assault,” Chief Justice Mogoeng Mogoeng said yesterday in the unanimous judgment he handed down.
“And parental authority or entitlement to chastise children moderately and reasonably has been an escape route from prosecution or conviction.”
Justice Mogoeng said how law enforcement agencies dealt with reported cases of child abuse following the judgment, was “best left to be dealt with on a case-by-case basis.”
Attorney Daniela Ellerbeck for Freedom of Religion South Africa, which brought the application to overturn the High Court in Johannesburg ruling which declared spanking to be unconstitutional, said it was disturbing that the right of parents to raise their children according to their conviction had not been upheld.
“It sets a very dangerous precedent in that the state can dictate to people of faith, thereby seriously eroding their right to religious freedom,” Ellerbeck said. “The judgment by Mogoeng makes criminals of many people who believe the Scriptures permit, if not command, them to physically correct their children.”
Ellerbeck said many would have “no choice but to obey God rather than the law”.
Save the Children South Africa (SCSA) welcomed the ruling and called on parents to respect it.
“According to the Children’s Institute at the University of Cape Town, 75% of physical violence against children occurs in the context of physical punishment,” said SCSA’s child protection programme manager Divya Naidoo.
Professor Shanaaz Mathews, director of the institute, said children’s rights had triumphed yesterday.
“There are lots of options for parents,” Mathews said of what parents could do now. “We are promoting positive discipline. There are alternatives, and that’s where the debate is going to go.”
Mogoeng noted in his judgment the constitution said “everyone” had the right to freedom and security, including the right to be free from all forms of violence.
“Children are constitutionally recognised independent human beings, regardless of whether they are orphans or have parents,” Mogoeng said.
“The word ‘everyone’ in this section also applies to them.”
Positive parenting tips
Toddlers (1-2 years)
Toddlers (2-3 years)
Preschoolers (3-5 years)
Middle Childhood (6-8 years)
Middle childhood (9-11 years)
Teens (13-14 years)
Teenagers (15-17 years)
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