South Africa: parents who smack children left with no defence

The country’s top court has declared the physical disciplining of children unconstitutional

COURT RULING: South Africa's constitutional court has declared smacking in the home unconstitutional

SOUTH AFRICA’S constitutional court has ruled against smacking children in the home.

The country’s top court has upheld a high court ruling from 2017 that declared corporal punishment to be illegal.

The judgment followed a trial in which a father found guilty of assault against his 13-year-old son.

The man said that he was allowed to hit his son, who he had found to be watching pornography, because it was in line with his religious beliefs. But the high court ruled against the man and deemed “reasonable chastisement”, a common law defence, unconstitutional.

The high court ruling had been challenged by Freedom of Religion SA (FOR SA), a non-profit Christian organisation that aims to protect and promote religious freedom in South Africa.

Responding to the unanimous judgment from the constitutional court earlier today (Sep 18), Daniela Ellerbeck, the lawyer representing (FOR SA), said that while the organisation had not had the opportunity to study it in full, it set a “very dangerous precedent”.

“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.

“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,” Ellerbeck said.

South Africa’s president, Cyril Ramaphosa, has welcomed the constitutional court’s ruling.

Ramaphosa, who described the act of parents and carers beating children as “a serious problem”, supported a no tolerance approach to physical discipline.

“This judgment will send a strong message that the beating of children will not be tolerated at all costs,” local publication IOL reported Ramaphosa said.

Children’s rights organisations also supported the decision.

The department of social development tweeted: “We welcome the decision by the @ConCourtSA on reasonable chastisement. The court confirmed our position and submission to the court that chastisement is unconstitutional.”

A South African law centre described the court’s decision as “a breakthrough judgment advancing the rights of all our children”. 

Human rights academic Aoife Nolan tweeted: “Not an inevitable decision given make-up of court and excellent news from a #childrights perspective – congratulations to all at @UPChildLaw. A huge milestone.”

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