The Constitutional Court is clear: spanking your child is inconsistent with the Constitution, but how can you bring up your child without becoming a criminal? This is the question that has vexed religious groups, civil society and parents ever since the landmark judgment was handed down 10 days ago.
The watershed case was sparked by a Johannesburg father assaulting his 13-year-old son. In 2016, the Johannesburg Regional court heard how the man walked into his marital bedroom and was convinced that he caught his young son, only known as M, watching porn on one of the family's iPads.
The teenager claimed he wasn't, but his enraged father accused him of lying and began beating him. M told the court that the assault intensified as his father tried to get him to admit he had been watching pornography, which was forbidden in an Islamic household.
M’s father admitted in court that he had been infuriated and disappointed, but insisted he only smacked M’s backside with an open hand. He conceded he could have done this several times each time M denied his accusations. He admitted too that might have hit M on the back of the thighs when M tried to twist away from him.
“I just intended to discipline him out of concern to show him in the future what is right and what is wrong,” the man told the court.
M told a different story: that his enraged father refused to believe that he was not watching porn and just hit him harder. He said his father started by punching his thighs and then his chest before M fell off the bed onto the floor and hit his back against the security gate. He told the court that his father kicked him three or four times while he lay on the ground.
M’s version was corroborated by the findings of a Dr Van der Poel who treated him four days afterwards. Under cross-examination, he was clear that the injuries could not have been caused by an open hand; “... not the legs, not the bruises .... Because then we would have bigger areas of bruises, and it would be bigger areas, and it was not that big areas. It was more (round) areas.”
The father was convicted of common assault. He appealed, and when the case was transferred to the High Court in 2017, Judge Raylene Keightley raised the question as to whether the defence of reasonable chastisement, as had been relied on by the father in the case, was compatible with the Constitution.
“She paused the hearing, invited the Centre for Child Law, Freedom of Religion SA; the Ministries of Justice and Social Development, the National Prosecuting Authority as well as any other organisation that may have an interest in the matter, to make submissions as friends of the court,” Isabel Magaya of the Centre for Child Law told the Saturday Star this week.
They argued that the defence was incompatible with the right to human dignity; the right to equality and the right to freedom and security of the person (to be free from violence from public and private sources).
“Corporal punishment, as a practice, is something that the children's rights sector had worked on for many years - the sector had been trying to bring about change in the thinking about this through advocacy, research and submissions to Parliament,” Magaya said.
But it was Judge Keightley who decided that this one would be the test case because of the lack of legislative intervention is still a long way off, she noted in her judgment; “In this way, children will grow up knowing that violence is unacceptable.”
Magaya said now Parliament needed to regulate how prevention and early intervention services must be used where parents have used corporal punishment.
“The aim is not to prosecute parents but to get them to parent better. The removal of the defence does not mean that all cases of parental corporal punishment mean automatic or frequent prosecution of parents. The legislature will need to clarify, in the Children's Act, that the first response against reported cases of parental corporal punishment is not a criminal justice response.”
Magaya said the judgment had to be understood within the broader context of violence against children and child abuse in South Africa.
“If one looks at the high levels of violence in South Africa currently, then something ought to be said about the need to break the cycle of violence, and one way of doing that is outlawing the use of punitive discipline in the home.”
Ironically, M’s father was tried on a second count of assault, committed on the same day as the initial assault on M - this time on his wife, who he accused of having an affair. He was convicted and appealed - which Keightley denied too.