C&A Friedlander Attorneys

On 18 September 2019, the Constitutional Court upheld the judgment of the Gauteng High Court declaring the use of parental chastisement in homes unconstitutional. The judgment comes at a time where violence against women and children has been a burning issue in South Africa. The “banning on spanking” has become a heated debate, with people voicing their opinions both for and against it, but what does all of this mean?

In essence, it means that the common law defence of reasonable and moderate parental chastisement is no longer a defence where parents and caregivers are charged with assault of children. As a result of the judgment, parents and caregivers could now end up with a criminal conviction for assault and children could potentially be removed from the household.

Many are against the judgement believing that the state is overreaching in the private affairs of the public and infringing their right to act in accordance with religious scriptures, often justifying the use of corporal punishment. However, according to Chief Justice Mogoeng Mogoeng, there is no justification for the application of parental chastisement.

Section 12(1)(c) of the Constitution confers the right to be “free from ALL forms of violence from either public or private sources,” which includes moderate, reasonable and extreme forms of violence. As stated by the Chief Justice, parental authority or entitlement to chastise children moderately and reasonably has been an escape route from prosecution or conviction. This means that the violence prescribed by section 12(1)(c) could still be committed with justification if that parental right is retained. To allow this escape route would be inconsistent with the values of which the Constitution is founded upon.  The Chief Justice further reiterated that there are many less restrictive means available to discipline children and that instilling a “positive parenting” approach is in the best interest of children.

Many studies have also found that the use of corporal punishment only manages to achieve a short-term positive corrective effect but a long-term negative effect on the psychological health of children. It has been shown that the use of corporal punishment predisposes children to aggression, delinquency and conjugal violence later in life.

The arguments could go on forever, but in essence, it makes no difference whether you agree with the judgment or not. Our Highest Court has ruled and the Constitution is supreme; spanking your children can no longer be justified!

Lee-Anne Flynn

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE).