Spanking children is now unconstitutional as a form of discipline

Spanking children is now unconstitutional as a form of discipline

Nozipho Mvulane

The Constitutional Court handed down judgment on 18 September 2019 in the matter of Freedom of Religion South Africa v Minister of Justice and Constitutional Development and Others [2019] ZACC 34.This case confirmed the High Court ruling that the common law defence of moderate and reasonable chastisement constitutionally invalid. This has the effect that parents can no longer use physical violence to discipline their children.

Infringement of various children’s rights

The Constitutional Court declared the common law defence of moderate and reasonable chastisement unconstitutional. This was on the grounds that moderate and reasonable chastisement:

  • violates a child’s right not to be discriminated against on the basis of age;
  • is contrary to the principle of equal protection of the law;
  • violates a child’s right to dignity;
  • violates a child’s right to freedom from all forms of violence and degradation; and
  • violates a child’s right to bodily and psychological integrity.

“Spare the rod and spoil the child”

The challenge to the High Court ruling was brought by Freedom of Religion South Africa.  Freedom of Religion South Africa asserted that they (and the members that they represented) “believe that the scriptures and other holy writings permit, if not command, reasonable and appropriate correction of their children”.

Freedom of Religion South Africa further asserted that  “loving parental chastisement applied for the benefit of the child and in his or her best interest, gives dignity to the child.” The assertion made is that, loving parents must discipline their children, even imploring corporal punishment should the need arise (which is distinct from child abuse, in their reasoning). The aim is not to harm (or abuse) the child, but to rather as a corrective action to undesirable behaviour.

Positive parenting methods

The Constitutional Court stated that by making this common law defence unconstitutional, does  not prevent parents from disciplining their children; this discipline as commanded by their faith. However, that the unconstitutionality merely prevented parents from employing physical violence as a form of punishment. Parents still have other (non-violent) means to discipline their children. This judgment encourages parents to adopt and implement positive parenting methods.

The Constitutional Court held that children may still be effectively disciplined without resorting to moderate and reasonable chastisement and that less restrictive means to achieve discipline are available and should be used instead of physical/corporal punishment.

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