What is corporal punishment? The UN Committee on the Rights of the Child defines corporal punishment as any punishment in which physical force is used as a means to cause pain or discomfort. Corporal punishment is often practised on minors in homes and school environments. This can involve smacking or spanking a child amongst other things.
Around October 2017, Honourable Judge Keightley made a ruling in the South Gauteng High Court to the effect that the Common Law defence of reasonable chastisement is unconstitutional and no longer applies in our law.
Prior to this ruling, a parent charged with assaulting their child was able to raise the defence that if the chastisement was reasonable, he/she will not be found guilty. Judge Keightley’s ruling does away with this defence of reasonable chastisement.
Many legal bodies such as the Children’s Institute and Sonke Gender Justice see this ruling as an important step to prevent violence and promote children’s rights. Judge Keightley’s motive for this ruling was to encourage parents to find alternative methods of discipline as opposed to physical violence.
The High Court ruling was appealed at the Constitutional Court. The appeal was heard on 29 November 2018.
Counsel for the Freedom of Religion South Africa, a non-profit Christian Organisation, appeared before a full court and argued that parents should be allowed to practise reasonable and moderate chastisement on their children. It was further argued that there is a clear distinction between chastisement and abuse.
Legal Representatives for the Children’s Institute and Sonke Gender Justice supported Judge Keightley’s ruling and argued that the ruling encourages parents to find alternative, positive ways of disciplining their children.
The Constitutional Court has reserved judgement and will take several months to pass its ruling as this will have a great impact on the country and children’s rights, especially in a current society where abuse stories are becoming a normality.
MAYA NARSAI MAKAN specializes in Divorce and Family Law Matters and is a senior associate at Alan Levy Attorneys Notaries and Conveyancers.