Pretoria - Parents should think twice about lifting their hands to their children; those who hit children will no longer be able to plead special defence in court if criminally charged.
The Gauteng High Court, Joburg, ruled on Thursday that the defence of reasonable chastisement was not in line with the constitution and no longer applied in law.
The judgment did not create a new offence, as hitting a child, whether your own or someone else's, has always been assault under the country’s criminal law.
However, in the past a parent who smacked or spanked a child had special defence of reasonable chastisement to plead. They stood to be acquitted of assault if they could prove that the chastisement was moderate and reasonable.
But Judge Raylene Keightley, in a groundbreaking judgment for the rights of children, found the defence that allowed parents to physically discipline their children was inconsistent with the constitution.
The judge emphasised that the intention was not to charge parents with a crime, but to rather guide and support parents in finding more positive and effective ways of disciplining children.
The judgment arose from an appeal by a father who had been convicted of assault for beating his 13-year-old son in a manner which exceeded the bounds of reasonable chastisement.
He accused the child of watching pornographic material on the family iPad. The teenager denied this, but the father persisted in giving him a severe spanking. His son suffered several bruises to, among other areas, his legs.
The lower court earlier postponed the passing of sentence against the father for a period of five years.
In deciding on the father’s appeal, the court invited submissions from interested parties on the subject of reasonable chastisement.
Various NGOs joined the proceedings as friends of the court, including the Children’s Institute, Quaker Peace Foundations and Sonke Gender Justice. They were represented by the Centre for Child Law.
Judge Keightley, in her judgment, referred to an affidavit submitted on behalf of Social Development Minister Bathabile Dlamini, who agreed that the defence of reasonable chastisement was unconstitutional.
The judge pointed out that the whole orientation of the Children’s Act was towards prevention and early intervention and to guide parents towards more positive and effective parenting of children, rather than using violence.
The court said protecting children was particularly important in the context of the high levels of child abuse and violence that prevailed in society.
The judge emphasised that South Africa was not the first African country to do away with corporal punishment in the home.
She said half of the countries in Africa had publicly committed to doing so. Countries such as Kenya, Tunisia and South Sudan actually abolished corporal punishment in all settings.
The judge said under the common law it was up to the parent to decide on the level of physical force the child deserved as punishment.
“Many parents may believe they they are behaving reasonably. However, given the levels of child abuse and domestic violence in our country, it is likely that many a child is subjected to levels of physical punishment that, regardless of their parents’ belief, they are unable to withstand”
The judge said this was out of line with the child-centred model of rights demanded by the constitution. She concluded that she could find no reasonable justification to permit parents to assault their children for disciplinary purposes.
Karabo Ozah of the Centre for Child Law said, in reaction to the judgment: “It comes at a time when South Africa is reeling from accounts of violence and abuse of children. It is positive news in a sea of depressing accounts of children being victimised.
“It is good that the court has taken this step,” Ozah added.