The South African Constitution provides an extensive Bill of Rights protecting the rights of all South Africans. Notwithstanding the fact that the values underlying the Constitution envisage a parent-child relationship as one excluding all forms of violence, South African parents have until recently been allowed to inflict physical harm on their children for disciplinary purposes. After the recent South Gauteng High Court judgment, this is no longer the position. Consequently, children’s underlying democratic values of human dignity, equality and freedom are not allowed to be undermined.
The judgment arose from an appeal by a father who had been found guilty of beating his minor child in a manner that exceeded the bounds of reasonable chastisement. Now, parents who give their children a hiding cannot use the defence of ‘reasonable chastisement’ if they are later accused of assault. This is certainly not a revolutionary decision in the African setting. Actually, half of the countries in Africa have already publically committed to abolishing corporal punishment in the home, and now South Africa joins that list.
The judgment points out that, although South Africa has in the past made commitments to advance the protection for the rights of the child, the process of doing so through legislation has been far from effective. As a result, the learned Judge Keightley held that the court have a duty to take the necessary steps in order to develop the law.
Chastisement in the form of corporal punishment by parents on children in their care for instructive purposes amounts to a form of infringement on several of the child’s constitutional rights. Such infringement is unreasonable, and holds no justification in an open and democratic society founded on values of human dignity, equality and freedom.
The potentially harmful nature of corporal punishment, coupled with the special constitutional protection afforded to children provides coherent arguments in favour of limiting the right of parents to impose such a punishment. This rule unjustifiably infringes several children’s constitutional rights by subjecting them to violence and unnecessarily degrading punishment.
Moreover, it is proposed that in order to achieve a society based on the values espoused by the Bill of Rights, as well as to follow the international trend of endorsing children’s rights, South Africa must take this moral high ground by unequivocally stating that all forms of physical violence directed at children are unconstitutional and therefore unlawful.
Practically, the judgment means that parents who spank their children will no longer be able to raise a special defence if they are charged. Moreover, in order to give effect to the constitutional rights of the child having regard to the high levels of child abuse and violence prevalent in our society, the intention is not to charge parents with an offence of assault, but rather to guide parents in finding less intrusive ways of disciplining their children. Such an approach not only gives effect to the Bill of Rights but also the Children’s Act.