The Constitutional Court is considering the constitutionality of the use of corporal punishment in the home. File picture.
“Reasonable” physical spanking of children by their parents should be criminalised on grounds that it breeds violence against its defenceless recipients, the Constitutional Court has heard.

Opponents of spanking, which included the state and several civil society groups, wanted the highest court in the land to accept that it was a form of violence and not one of positive parenting.

The applicant in the matter heard by the court on Thursday was Freedom of Religion South Africa (For SA), a non-profit Christian organisation that sought to protect parents' right to spank their children.

Reg Willies SC, arguing on behalf of For SA, told the full bench of the court that parents should be allowed to apply “reasonable” and “moderate” chastisement on their children.

After all, this was the only tool most parents in the country had to discipline their offspring, said Willies.

For SA sought to have a high court ruling that banned spanking set aside.

In the groundbreaking judgment delivered last October, Judge Raylene Keightley ruled that parents cannot rely on the defence of reasonable chastisement when facing assault charges after beating their children.

The ruling banned spanking and paved the way for development of law that criminalises it. A bill in this regard is now before Parliament.

Judge Keightley was presiding in an appeal application of a Joburg father found guilty of assaulting his son.

Though he smacked and kicked the 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 the case.

Willies argued in the Constitutional Court that Judge Keightley had confused clear abuse of a child and reasonable physical chastisement. There was a clear distinction between the two, he said. Reasonable chastisement was done by parents with love and without anger, argued Willies.

Millions of parents across the country also meted it out on religious grounds, said Willies. Words such as "punishment" and "corporal punishment" did not characterise physical chastisement, he argued.

Its criminalisation would disrupt family life, he added. He said family life would be left in the hands of social workers, police and prosecutors.

However, Willies’ opponents were adamant his case should fail.

Hamilton Maenetje SC, for the State, argued that what’s considered “moderate” physical chastisement could, over time, result in excessive violence against children.

The government favoured zero violence against children. “The move is to encourage positive parenting,” said Maenetje.

The main problem with leaving spanking legal was that many violent cases against children were never reported to police, said advocate Ann Skelton.

Skelton represented the Children’s Institute, Quaker Peace Centre and Sonke Gender Justice.

It was not possible for parents to mete out physical chastisement without a level of frustration, said Emma Webber, a lawyer for parties that joined proceedings as friends of the court.

Webber cited data that revealed that a significant portion of young people (27% of males and 33% of females) reported being beaten every day or every week.

Judgment was reserved.