On Thursday, November 28 the Constitutional Court will hear Freedom of Religion South Africa’s (FOR SA’s) application for leave to appeal a High Court judgment last year which declared parents’ historic common law defence of “moderate and reasonable chastisement” to be unconstitutional.
“While FOR SA is utterly opposed to any form of violence against children, we see a clear distinction between violence against children and the loving, mild and moderate discipline of a parent for what he/she believes is in their child’s best interests. We further believe that more “tools” are needed to enable parents to raise their children, not fewer”, said FOR SA executive director Michael Swain.
The main reasons FOR SA believes that an appeal is important are:
Stroke of a pen
In this case and with a stroke of a pen, two judges have now effectively overruled Parliament’s decision and circumvented the democratic legislative process. This is unacceptable, especially since this decision will affect millions of South African citizens. Furthermore, when passing the Children’s Act in 2005, Parliament made a deliberate and considered decision to retain the right of parents to reasonably and moderately chastise their children as part of South African law.
“This means that if you give your child even the lightest slap on the wrist, you can be charged with assault and – if convicted – will at the very least have a life-long criminal record for child abuse”, said Swain.
An unfortunate and potentially dangerous precedent was set when religious freedom rights were limited and curtailed by the judgment. The High Court effectively ruled, for the whole of South Africa, that “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 [what in the view of the Judge is] the best interests of their children.” An interpretation of Scripture which is held by many has therefore been declared invalid and if parents continue to follow their conscience, they will now be committing a crime.
Parents’ rights trumped
The judgment has set a precedent wherein the rights of children have been ruled to trump the rights of parents to raise their children within the framework of their own morals and values.
While many parents may choose to raise their children without any form of physical correction, more parenting tools are needed, not fewer. Given that the latest statistics show that over 30 million South Africans live on less than R1 000 per month and in small (often overcrowded) accommodation, there may be no (or very few) alternatives to reasonable and moderate chastisement for parents in these communities. There may well be no “naughty corner” in a rural dwelling, and what “privileges” do you take away from children who have none?
“We believe that the optimum solution is the calibrated approach which has been adopted by the UK”, says Swain, “This clearly defines the boundaries of moderate and reasonable discipline – for example, using an open hand, not leaving a mark etc. – since this makes it easy to see when a line has been crossed. This in turn empowers both parents and authorities to act in the best interests of children”.