A ruling in the Johannesburg High Court last Thursday that makes it illegal for parents to apply any form of physical discipline to their children made serious inroads into parental authority and freedom of religion, said Freedom of Religion SA (FOR SA) executive director Michael Swain in a media statement released today.
Similar views have been expressed by ACDP MP Cheryllyn Dudley who added that the decision of one judge usurped the role of parliament whose responsibility it was to make and amend laws.
“Parliament, the representatives of the people, considered this issue thoroughly over many years and concluded that it would not serve the desired purpose for reasonable chastisement to be abolished.
“The special defense of reasonable chastisement has until now meant that moderate and reasonable chastisement of children by their parents was a parental discretion and for many a non-negotiable responsibility,” she said in a press statement on Friday.
In its media statement on the judgement, FOR SA said it had made submissions in the case as a “friend of the court”, arguing in favour of reasonable chastisement on the basis that millions of Christians (and persons of other faith groups) believed that the scriptures permit (if not command) reasonable and appropriate correction of their children. FOR SA argued further that parental discipline was an important part of parents’ duty to ensure their children were brought up as responsible human beings with a sense of right and wrong, and that it was therefore ultimately for the child’s good and in his/her best interest.
However, it said that according to the judge, Raylene Keightley, “the notion of parental power and the view that children owe a duty of obedience to their parents” are “at odds with the child-focused model of rights envisaged under our constitution”.
In Keightely’s opinion further, this is a case where “it is permissible to require religious parents who believe in corporal punishment to be expected to obey the secular laws, rather than permitting them to place their religious beliefs above the best interests of their children”, FOR SA said.
Swain said that while FOR SA strongly condemned all violence against children there was an obvious difference between violence and abuse, and reasonable and moderate chastisement in love.
“It is unfortunate that the judgement does not recognise this distinction — which is also recognised by the social sciences — and considers chastisement in all circumstances to be detrimental and harmful to children,” he said.
He said the judgment made serious inroads on parental authority, as well as on the freedom of millions of South African parents who believed that reasonable and moderate physical chastisement done from time to time, always in love, was in the best interests of their children.
“Although the judgment states that “as far as possible, parents should not be criminalised”, in law it was possible that criminal sanctions might be imposed and children who were considered to be at risk of abuse or violence in the family home, might be removed from their parents.
The judgment also set a very dangerous precedent for other cases where children’s rights had to be weighed against parental and religious rights, he said. For example, in the context of transgender issues, it was quite foreseeable that the case would be used as authority to insist that parental caution and concern be overruled in favour of a young child’s desire for hormone suppressant treatment and gender reassignment surgery. Yet there was a clear recognition in law that a child did not have equal rights to an adult – hence the age of consent for sexual activity, the age of voting, laws against drinking and smoking before a certain age, etc.
In its submissions to the court, FOR SA pointed out that unless it was found on appeal that the appellant (the Muslim father who had been convicted of common assault of his child in the Magistrate’s Court) had acted within the bounds of the common law defence, the constitutional issue was academic and should not be considered any further. Judge Keightley did not agree and found that the “interests of justice” required a consideration of the constitutional issue, said FOR SA.
“While high courts have a constitutional obligation to develop the common law in line with our constitution, FOR SA’s concern is that the judgment is an overreach and effectively usurps the power of parliament who has primary responsibility for law reform.
“In this regard, we point out that when deliberating the Children’s Act in 2005, Parliament, as the democratically elected representatives of the people of South Africa, made a deliberate and considered decision to retain the right of parents to reasonably and moderately chastise their children, as part of SA law. With a stroke of a pen, the court has now effectively overruled the legislature’s decision and circumvented the legislative process. This is judicial activism at its best.
“The sad fact is that, as a result of this ‘spanking judgment’, significant amounts of taxpayers’ money will now be directed into training interventions and court cases involving potentially responsible parents and families that are not at risk, when it should be directed towards those families and communities that have already been identified as truly in need of such interventions.
“The utilisation of government’s time and budget to address “corporal punishment” cases will effectively increase the risk to already identified children and families who are at risk, making them even more vulnerable with less resources to intervene in those cases,” FOR SA said.
The appellant has three weeks from date of judgment to apply for leave to appeal the judgment to the Supreme Court of Appeal in Bloemfontein. FOR SA said it was studying the judgment carefully with a view to possibly appealing itself.
In her Friday statement, Dudley said that the ACDP would support a public interest appeal against the spanking judgement.
She said the party valued family and the important role it played in society, and was committed to protecting families and parents’ right to their beliefs in regard to the upbringing of their children.
She said contrary to Judge Keightley’s stated intention to guide parents in disciplining children, the ACDP believed that abolishing the defence of reasonable chastisement would undermine and disempower parents, and divert attention and constrained budgets away from addressing the real problem of abuse and violence against children in South Africa.
“In SA we have laws to deal with abuse and violence which must be implemented — any extra strain on the scarce resources, both skills and finances, will only exacerbate existing problems and place vulnerable families and communities at greater risk.
Violates children’s right to loving discipline
“The ACDP believes that parents should be respected and supported in the important task of raising their children. State or judicial interference without cause in these matters violates a child’s right to loving discipline and a parent’s right to guide their family and to make decisions and choices in line with their beliefs.
“The ACDP is of the opinion that freedom of religion or belief which is constitutionally protected, includes a person’s right to express their views and beliefs and to act in line with them provided they do not infringe on the rights of others.
The ACDP regards the judge’s conclusion as erroneously equating abuse and violence with reasonable chastisement or a spanking — this is not only misguided — it is unhelpful in seriously addressing the plight of vulnerable children,” Dudley said.