The Constitutional Court’s recent judgment on spanking has perhaps exposed the disconnect that exists between the will of the people and the rules that govern them.
While many judgments are passed daily their impact always seems far removed from the reality of many ordinary people.
However the spanking judgment affects every household directly and as a result, has been a subject of debate for many South Africans.
Many parents have come out in sharp criticism that the state is now infringing on the responsibility that is vested in them as parents to train their children in the way they should go.
Others, from the Christian community, have even criticised Chief Justice Mogoeng Mogoeng for ignoring the biblical views that parents must not spare the rod, lest they spoil the child.
I also witnessed this on my recent visit to the hairdresser when I reminded one mother of the spanking judgment after she gave her children a stern warning that if they continued their behavior they would receive a spanking.
All the women in that room were up in arms, they all refused to accept that any court should tell them how they should raise their children. After arguing their case they were unanimous that they would continue to spank their children and no court would tell them otherwise.
This would effectively mean that all those women, according to the laws of land, would need to be arrested for breaking the law.
This is obviously a dilemma in a country like ours ridden with crime, murders and rape of women and children that our legal system is unable to cope with. This judgment has now added to the already overloaded system, parents who physically discipline their children.
After he had tabled the State of the Judiciary report yesterday, the Chief Justice responded to two people who asked him about spanking. He went on to explain that the role of the Constitutional Court is to interpret the law and not to make it.
Parliament bears that responsibility and therefore members of parliament are the ones who are responsible for setting these laws, he said.
Mogoeng went on to explain that if the people of South Africa feel that reasonable and moderate parental chastisement is required in raising up children, they can, through parliament, amend the Constitution to reflect the values of society.
It was interesting to note that the question came from an ANC member of parliament, whose party has held the majority of seats since the dawn of democracy and was effectively responsible for drafting the constitution.
The question raised by the ANC MP also exposed the confusion that MPs have about their responsibility as lawmakers and representatives of the will of the people.
It became clear from the answer that came from the Chief Justice that ultimately the responsibility to make and change laws that reflect the values of society lies with the people of South Africa.
The years of apathy of ordinary South Africans and our continued failure to engage in a meaningful way in election processes and how the nation is governed must be blamed.
It is also clear that as long as the electoral system allows political parties to send people who represent party interests and not necessarily interests of their constituency, such judgments will continue. While many people had pointed fingers at the Constitutional Court, it turns out we are all to blame.