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What is corporal punishment? It has been defined as “any punishment in which physical force is used and intended to cause some degree of pain or discomfort, however light” by the United Nations Committee.
A National Survey was conducted in which it was found that 57% of parents use corporal punishment as their chosen disciplinary method and 37% of those parents use objects such as belts, wooden spoons etc., to carry out their discipline.
Further studies have shown that 1 in 3 children are abused in South Africa. With these alarming rates, it was inevitable that there would be a matter before court in which a parent’s right to punish their children through corporal punishment would be looked at.
On the 19th October 2017, a judgment was handed down in the High Court of Johannesburg which declared corporal punishment at home unconstitutional. This means that parents are no longer allowed to use corporal punishment as a method of discipline.
There are already over 49 countries, including Denmark, Germany, Spain and Kenya which have an outright ban on corporal punishment.
Before this judgment was handed down, parents were protected by our common law defence of reasonable chastisement. Therefore if parents were charged with assault for inflicting physical force against their children, they could say that it was necessary in order to discipline their children. It was then the State’s duty to prove that the parents had gone above and beyond reasonable means. This is rather a heavy burden for the state to carry.
Throughout the years the definition of this concept has remained unclear and no set boundaries were put into place as to what is reasonable and what is not.
Courts would apply certain factors such as, the nature of the child’s transgression, the motive of the parent, the force and object used and the age and size of the child to determine whether the bounds of reasonableness were exceeded.
In this particular judgment handed down by Judge Keightley and confirmed by Judge Raylene, the rights of the child versus the rights of the parents were looked at it. Section 28(2) of the Constitution provides that a child’s best interests are paramount in every matter concerning a child.
The rights of the child considered were the right to human dignity, equal protection under the law, free from all forms of violence, right not to be treated or punished in a cruel, inhuman or degrading way and the right to be protected from maltreatment, neglect, abuse or degradation.
The rights of the parent are the right to freedom, human dignity and right to religion (in certain religions, corporal punishment is seen as a must in order to raise your children to be upstanding citizens of the community). It was noted that there is no self-standing right to family life and to therefore no protection for families to handle their affairs as they see fit.
Therefore, the courts had to look at whether the limitation placed on the child’s rights in order to give effect to the rights of the parent were justifiable.
Many factors were considered in this judgment. It was noted that children need to be seen as independent citizens from their parents and not to be treated as anything less than that merely because of their age. If anything, children need to have more protection from our laws and courts because of their age.
It is the duty of our courts to ensure that the common law is in line with our Constitution and the rights contained therein. Therefore, with all of this in mind, the court could not find that the limitation placed on children’s rights were justified.
Parents are not restricted to only corporal punishment for disciple, but have other mechanisms available to them.
How this new development will play out in South Africa, nobody knows. Concerns have been raised as to how the next generation of children will be modelled and disciplined into law abiding citizens, but what we do know is that we need to start considering other discipline methods if we wish to be law abiding citizens our self!
For legal advice or assistance, please contact our attorneys in Cape Town
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