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Concourt to hear appeal over home-based corporal punishment

File photo: African News Agency (ANA)

File photo: African News Agency (ANA)

Published Nov 29, 2018

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Cape Town – The Constitutional Court is expected to hear an appeal today against a judgment declaring corporal punishment in the home illegal.

At present, the common law defence of “reasonable chastisement” allows parents to hit their children, with the justification of it being a form of discipline.

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The question before the Constitutional Court is whether the practice should continue to be allowed, or whether it needs to be prohibited as it might violate children’s rights.

The case has landed in the apex court after the South Gauteng High Court last year found the defence of reasonable chastisement to be unconstitutional.

That case related to a father who had been found guilty of assaulting his 13-year old son for watching pornography.

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“It is important to bear in mind that courts are enjoined to apply the rights contained in the Constitution. Courts have a constitutional obligation to develop the common law to bring it in line with the values that underlie our Constitution. This is expressly recognised in section 39(2) of the Constitution,” the court had found.

Freedom of Religion SA (For SA) brought the appeal, arguing the high court judgment made criminals of well-meaning parents who loved their children.

For SA said while they opposed violence against children, there was a distinction between violence or abuse and mild physical correction.

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“While many parents may choose to raise their children without any form of physical correction, For SA argues that more parenting tools are needed, not fewer. 

"Relying on extensive research by the American College of Paediatricians, (a researcher comments) that ‘every child is different, so not all disciplinary tactics will work as well for every child or for every situation with the same child.

"Parents need a full range of non-abusive disciplinary options to guide their children towards achieving their full potential,”’ For SA said.

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The Children’s Institute and Sonke Gender Justice are among those admitted as amici curiae, or friends of the court.

Carol Bower from the Peace Centre said corporal punishment including smacking and spanking could have negative effects on children.

“The use of such punishment increases children’s aggressive behaviour. Children who are smacked or spanked are, for instance, more likely to act out against other children,” Bower said.

Divya Naidoo, child protection programme manager at Save the Children SA argued corporal punishment could result in immediate compliance, but did not lead to self-discipline.

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