Pretoria - Freedom of Religion South Africa (FOR SA) has filed an application for leave to appeal the recent judgment which declared all physical chastisement of children by their parents – regardless of how light or well-intended – to be illegal in South Africa.
The Gauteng High Court, Johannesburg ruled last month that the defence of reasonable chastisement is not in line with the Constitution and no longer applied in our law.
The judgement did not create a new offence, as hitting a child, whether your own or someone else’ child has always been assault under our criminal law.
However, in the past, a parent who smacked or spanked a child had a special defence of reasonable chastisement. They stood to be acquitted of assault if they could prove that the chastisement was reasonable.
Judge Raylene Keightley, in a groundbreaking judgment for the rights of children, found that a defence that allowed parents to physically discipline their children was inconsistent with our Constitution.
FOR SA will ask the high court to refer the matter to the Supreme Court of Appeal (SCA) in Bloemfontein. It’s application only concerned the constitutional issue as to whether reasonable and moderate chastisement is congruent with the Constitution.
FOR SA, who was invited as a “Friend of the Court” in the matter, took issue with various aspects of the judgment. Its primary concern is that,” with the stroke of a pen” the judgment had removed a common law defence which had historically protected parents against a charge of assault.
“South African law is very clear that the engine room for law reform is Parliament, not the courts,” said FOR SA’s Executive Director, Michael Swain. “For this reason, judges should restrain themselves and not be overzealous in developing the law, lest they be seen to usurp the role of Parliament.”
FOR SA is of the opinion that the Court was wrong to equate reasonable and moderate chastisement with “abuse” of or “violence” towards children.
The NGO reasoned that there is a clear and fundamental difference between moderate chastisement by a parent motivated by love and in the best interests of their child and physical violence or abuse where the State obviously has a duty to intervene.
It will argue that the judgment eroded the rights of parents to decide for themselves how best to discipline their own children.
“It disempowers parents, especially those who live in poorer areas and in overcrowded accommodation who do not have the luxury of sending children to ‘naughty corners’ and where there are few if any, privileges to take away,” Swain said.
The NGO is also of the opinion that the judgment overrides the belief and conscience of parents who believe that holy texts allow them to use moderate chastisement as one of the methods for raising and disciplining their children.
While not all religious parents hold this view, this judgment nevertheless has the effect of interfering with doctrinal matters, it said.
The NGO feels that this sets a dangerous precedent since the Court’s judgment has effectively curtailed and limited religious rights and freedoms.
FOR SA said it is concerned that the judgment will have the effect of criminalising good and well-intentioned parents who love their children.
While the judgment points out that this is not the intention, the reality is that the removal of the reasonable chastisement defence means that any form of physical discipline of a child may fall within the legal definition of an assault.
FOR SA will argue that it is in the public interest, as well as in the interest of justice, that the judgment is appealed.
No date has yet been set for the leave to appeal hearing.