Constitutional Court says parents may not smack children

Ruling seen as blow to religious freedom

The Constitutional Court on Wednesday morning ruled unanimously that it is unconstitutional to spank your child at home.

Dismissing an appeal by Freedom of Religion South Africa (FOR SA), against a High Court ruling outlawing corporal punishment at home, the judgment  declared that the common law defence of reasonable and moderate chastisement is inconsistent with the constitutional right to dignity (s 10), the right to be free from all forms of violence, whether private or public (s 12(1)(c)), and the principle that a child’s best interests are paramount in any matter concerning the child (s 28(2)). The court held that less restrictive means of discipline are available. The full judgment can be viewed here.

In a media statement released yesterday, FOR SA, describes the ruling as disturbing and a blow to religious freedom. “It effectively means that parents who physically correct their children – no matter how light or well-intentioned – will be committing the crime of assault and open themselves up to the full penal machinery of the State, ” says FOR SA.

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FOR SA escalated the matter to the Constitutional Court after the High Court made a similar ruling in a case where a father was convicted of common assault and tried to cite moderate and reasonable chastisement

In yesterday’s media statement, FOR SA attorney Daniela Ellerbeck says they have not yet had an opportunity to study the full judgment. She comments that “it is disturbing, however, that the right of parents to raise their children according to their own convictions and what they believe to be in the best interest of their children, has not been upheld. It sets a very dangerous precedent in that the state can dictate to people of faith how to read and live out the Scriptures, thereby seriously eroding their right to religious freedom.”

She comments further: “The judgment by Chief Justice Mogoeng Mogoeng makes criminals of many people of faith who believe that the Scriptures permit (if not command) them to physically correct their children at times, where necessary, always in love.

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“For many, they will have no choice but to obey God rather than the law. As a result, good parents of faith who only want what is best for their children, will potentially see their families torn apart as is happening in other countries where physical correction has been banned. This will destroy families as the bedrock of our society.”

Although FOR SA is 100% against violence, it argued before the court that there is a clear distinction between violence or abuse, and mild (non-injurious) physical correction, as shown by extensive social science research, says the statement.

In a media statement yesterday, ACDP leader Rev Kenneth Meshoe, says the party is “extremely disappointed” by the Constitutional Court’s ruling on physical discipline.

He says: “Reasonable and moderate chastisement has for many years been part of raising many well-mannered and morally sound children. It must be emphasised that any form of discipline or abuse that goes beyond reasonable and moderate chastisement was always considered assault and should be met with the full force of the law. For some people to equate it to child abuse is, in our view, completely wide of the mark.

“We believe that God did not make a mistake when he instituted this form of correction for parents to apply in order to raise strong, respectful and diligent children.

“Last week Friday the Minister of Police revealed that a total of 736 murders were committed by children between the period of April 2018 and March 2019.

“A lack of reasonable chastisement in our schools has resulted in increased crime in our schools, which include rape, murder, and even attacks on teachers in the classroom. We maintain that so-called alternative methods of discipline has not, and will not, work in our schools.

“The claim, by a select few, that reasonable chastisement makes children rebellious is baseless and incorrect. I know many parents who have used reasonable chastisement for decades as a form of discipline and correction when raising their children – who have grown into successful and morally upright human beings.”

ChristianView Network, in a Facebook post published yesterday, condemns the Constitutional Court ruling outlawing spanking as “shocking and ridiculous”.

“We call on South African parents, police, judges, parliament and churches to resist this judicial tyranny,” says the post.

The post also says: “If this judicial tyranny is not resisted, it will simply become a precedent for more abuse of power – which put even bigger issues at risk including sanctity of life and other religious freedom issues. Likewise attempting to ride over the authority of parents over their children sets a bad precedent for other issues such as powers of school governing bodies, sex education in schools and home schooling rights. We cannot accept this. The Bill of Rights is supposed to be a brake to stop state abuse of power, not an accelerator of such power in pursuit of social engineering. If such judicial abuse is allowed to continue, the meaning of the Bill of Rights itself will be eroded to the point we are left with arbitrary rule by an arbitrary committee of lawyers.”