There has been mixed reaction to the landmark Constitutional Court ruling that makes it illegal for parents to spank their children. File picture.
There has been mixed reaction to the landmark Constitutional Court ruling that makes it illegal for parents to spank their children.

Chief Justice Mogoeng Mogoeng stressed that expunging the law that allows “reasonable and moderate” corporal punishment is meant to ensure that children are free from all forms of violence.

Justice Mogoeng delivered the apex court’s unanimous judgment on Wednesday that effectively outlawed spanking of children by their parents.

The Chief Justice pointed out that parents’ entitlement to chastise children moderately and reasonably had been used as an escape route from prosecution or conviction.

The case reached the Constitutional Court as a result of a Johannesburg father who attempted to invoke the common law defence of reasonable and moderate chastisement. Although he smacked and kicked his son for allegedly watching porn, the father claimed he was disciplining the child.

The man, who also assaulted the boy’s mother during the violence, lost his appeal at the high court in Johannesburg in October 2017.

In that groundbreaking judgment, Judge Raylene Keightley ruled that the defence that allowed parents to spank their children was inconsistent with the Constitution.

Freedom of Religion South Africa (FOR SA), a non-profit Christian organisation, approached the Constitutional Court in a bid to set aside Judge Keightley’s ruling.

The organisation sought to convince the court that there was a distinction between reasonable and moderate parental chastisement and assault and abuse of children.

“But the difficulty they have is the attempt to locate this chastisement outside the boundaries of assault,” said Mogoeng. “The high court was correct in its conclusion that the common law defence of reasonable and moderate chastisement is constitutionally invalid and that this declaration be prospective in its operation.”

Mogoeng found spanking inconsistent with Section 12(1)(c) of the Constitution, which stated that everyone must be free from all forms of violence from either public or private sources.

“The right to be free from all forms of violence or to be treated with dignity speaks quite forcefully against the preservation of the common law defence of reasonable and moderate parental chastisement,” said Justice Mogoeng.

He said chastisement does, by its very nature, entail the use of force or a measure of violence.

“It is the bite of the force applied or threatened that is hoped to be remembered to restrain a child from misbehaviour whenever the urge or temptation to do wrong comes,” Justice Mogoeng said.

“How then can reasonable and moderate chastisement not fall within the meaning or category of violence envisaged in Section 12(1)(c)?

“After all, reasonable and moderate chastisement includes corporal punishment with the instrumentality of a rod or a whip.”

Opponents of FOR SA in the matter favoured what was termed the “positive parenting” approach. It entailed educating children about good behaviour, instead of spanking.

Welcoming the court's ruling, the Children's Institute reiterated that “positive parenting” was beneficial.

“This is only the first step in protecting children from physical violence in the home,” said the institute, which was one of FOR SA’s opponents.

“Positive discipline is not an alternative form of punishment - it avoids the use of punishment.”

FOR SA expressed disappointment at the ruling. “It is disturbing 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.

“This will destroy families as the bedrock of our society,” said FOR SA’s attorney Daniela Ellerbeck.