South Africa’s highest court on Wednesday (Sept 18) upheld a ruling that spanking or corporal punishment of children at home was unconstitutional, saying the practices violate child rights.
In a much-awaited decision, the South African Constitutional Court backed a 2017 court ruling that sentenced a father for assaulting his 13-year-old son for watching a pornographic film.
A religious freedom group had challenged that case, saying while it does not promote abuse, parents should have the right to raise their children according to their religious beliefs.
However, the nine constitutional judges unanimously ruled that spanking should be banned.
“The vulnerability of children, their rights to dignity and to have the paramountcy of their best interests upheld, as well as the availability of less restrictive means to achieve discipline, render moderate and reasonable chastisement unconstitutional,” they ruled.
The court banned corporal punishment in prison in 1995 and in schools in 2000.
While the judgment does not create a new offence – as hitting a child has always been assault under the country’s criminal law – it was previously possible for a parent who smacked a child to raise a special defence of reasonable chastisement to plead.
Parents stood to be acquitted of assault if they could prove that the chastisement was moderate and reasonable.
The ruling follows a 2017 High Court judgement which effectively made all forms of physical correction of children by their parents – no matter how light or well-intended – unlawful.
The appeal has been brought by Freedom of Religion South Africa (For SA), which argued that the High Court judgment will make criminals of well-meaning parents.
“The effect of the (High Court) judgment is that if you give your child even the lightest slap on the wrist, you can be arrested and prosecuted for assault and if convicted, will have a life-long criminal record for abuse of your own children,” said For SA’s attorney Daniela Ellerbeck.
“Not just that, but for a trivial non-injurious slap, your children can be removed from the family home. One can only imagine the damage that this will do to families in South Africa.”