Chief Justice Mogoeng Mogoeng said while many parents meant well, any form of violence, including reasonable and moderate chastisement, had always constituted a criminal act known as assault. Picture: Boxer Ngwenya/African News Agency (ANA) Archives.

Johannesburg - A Constitutional Court judgment upholding a high court ruling that declared corporal punishment at home unconstitutional has been met with mixed reaction, with some organisations hailing it while others saying it sets a "very dangerous precedent".

Earlier, the apex court ruled that the common law defence of reasonable and moderate parental chastisement of children is unconstitutional. 

The ruling meant that it was illegal for parents to use the common law defence of moderate and reasonable chastisement to punish children through physical punishment like caning or flogging.

Delivering the judgment Chief Justice Mogoeng Mogoeng said while many parents meant well, any form of violence, including reasonable and moderate chastisement, had always constituted a criminal act known as assault.

“The effect of relying on this common law defence was to exempt parents from prosecution or conviction. Identical conduct by a person other than a parent on the same child would otherwise constitute indefensible assault,” Justice Mogoeng said.

Justice Mogoeng said the declaration would be applied prospectively and that law enforcement agencies would have to deal with reported cases of child abuse on a case-by-case basis.

Freedom of Religion SA (FOR SA) approached the court last year to appeal a 2017 high court ruling, arguing that holy scriptures permitted reasonable and appropriate correction of children by their parents.

The South Gauteng High Court had in 2017 declared the right of parents to chastise their children without legal consequences as unconstitutional as it infringed the constitutional rights enjoyed by children, including dignity, equal protection of the law and bodily and psychological integrity.

FOR SA attorney Daniela Ellerbeck on Tuesday said while the organisation was yet to read the full judgment, they found "it is disturbing however, that the right of parents to raise their children according to their own convictions and what they believe to be in the best interest of their children, has not been upheld. 

"It sets a very dangerous precedent in that the State can dictate to people of faith how to read and live out the Scriptures, thereby seriously eroding their right to religious freedom.”

Ellerbeck further said that “the judgment by Chief Justice Mogoeng makes criminals of many people of faith who believe that the Scriptures permit (if not command) them to physically correct their children at times, where necessary, always in love. For many, they will have no choice but to obey God rather than the law. 

"As a result, good parents of faith who only want what is best for their children, will potentially see their families torn apart as is happening in other countries where physical correction has been banned. This will destroy families as the bedrock of our society".

Save the Children South Africa (SCSA) meanwhile, said it welcomed the Constitutional Court ruling and called on parents to respect it.

“This is a historic judgement, and a victory in the ultimate bid to end violence against children. As we commemorate heritage month, this judgment, reflects on the important legacy that we will leave for children in South Africa.” says SCSA’s Child Protection Programme Manager, Divya Naidoo.

SCSA further calls for government’s financial investment in positive discipline, and parental support interventions.

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