Chief Justice Mogoeng Mogoeng delivers the landmark ruling which prohibits corporal punishment in the home.
Chief Justice Mogoeng Mogoeng delivers the landmark ruling which prohibits corporal punishment in the home.

Spanking: it's a noble ruling, but how will it be enforced?

By Zelda Venter Time of article published Sep 25, 2019

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Pretoria - The spanking or rather non-spanking of children had many South Africans up in arms last week. It was a hot topic of debate in homes and on social media, even for those who don’t have children.

But it made me wonder on the one hand how enforceable it is and on the other whether it will now be used as leverage by an aggrieved parent embroiled in a divorce to obtain an advantage in a custody battle.

Our country was clearly divided on the Constitutional Court ruling that spanking a child is tantamount to assault under South African law.

Although not a mother, I also reflected on the judgment, and once again appreciated how our law has evolved to protect the interests of children. I have the utmost respect for our justices sitting at Constitutional Hill and Chief Justice Mogoeng Mogoeng’s 26-page judgment is worth reading.

I thought his introduction was quite fitting in which he said: “The adage ‘spare the rod, spoil the child’ stares us in the face here. It challenges our foresight and capacity to bring the wisdom of Solomon to bear on a sensitive, complex and controversial matter of national importance: child discipline.”

Justice Mogoeng clearly took into account that many parents feel they have the primary duty to lovingly raise their children in terms of their religious and cultural beliefs, which entails moderate and reasonable chastisement.

But he concluded that any form of violence, including reasonable and moderate chastisement has always constituted a criminal act of assault.

We have always had laws against assault and murder, but in spite of this children are still abused and even killed in their homes.

Would this judgment have helped little Poppie van der Merwe and others from being subjected to long-term torture at the hand of their parents? I doubt it.

Law-abiding parents would in any event have towed the line.

It is a noble judgment, just like the smoking law - the Tobacco Bill - passed last year. Taking a puff in your home in close proximity to your children or domestic helper could cost you a fine or even a prison sentence.

Noble indeed to ensure a healthy environment for others, especially children. But how will this law be enforced? Children will hardly speak out against their smoking parents, let alone employees dependent on their salaries.

As with the issue of adults lighting up in their homes in the presence of non-smokers, I am not sure how spanking in homes will be policed.

This is also an issue which clearly crossed the mind of Justice Mogoeng, who in the conclusion of his judgment on chastisement, said: “How law-

enforcement agencies deal with reported cases of child abuse flowing from this declaration of unconstitutionality, is a matter best left to be dealt with on a case by case basis.”

He also said that a proliferation of assault cases against parents following his judgment was a reasonable foreseeable possibility. He called on Parliament to be guided in this regard, and to “hopefully allow itself to be guided by extensive consultations, research, and debates before it pronounces finally on a regulatory framework”.

I sincerely hope that the judgment pronouncing spanking as assault, and a criminal offence will be used in the spirit in which it was delivered, and not be open for abuse.

I have over decades witnessed how warring parents in custody battles can pull out all the stops. Accusations of sexual abuse by one or the other parent is a particularly favoured weapon, and one which immediately raises the hackles of any judge.

Could this now be replaced by a spanking parent to gain some form of advantage? I hope not.

Pretoria News

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