What is corporal punishment? It has been defined as “any punishment in which physical force is used and intended to cause some degree of pain or discomfort, however light” by the United Nations Committee.
A National Survey was conducted in which it was found that 57% of parents use corporal punishment as their chosen disciplinary method, and 37% of those parents use objects such as belts, wooden spoons, etc., to carry out their discipline. Further studies have shown that 1 in 3 children are abused in South Africa. With these alarming rates, it was inevitable that a court case would arise to determine whether a parent's right to use corporal punishment was constitutional.
On the 19th of October 2017, a judgment was handed down in the High Court of Johannesburg, which declared corporal punishment at home unconstitutional. This means that parents are no longer allowed to use corporal punishment as a method of discipline. There are already over 49 countries, including Denmark, Germany, Spain, and Kenya, that have outright bans on corporal punishment.
Prior to this judgment, parents were protected by the common law defense of reasonable chastisement. Therefore, if parents were charged with assault for using physical force against their children, they could argue that it was necessary for discipline. It was the State’s duty to prove that the parents had exceeded reasonable means, a heavy burden.
In the judgment handed down by Judge Keightley, confirmed by Judge Raylene, the rights of the child versus the rights of the parents were examined. Section 28(2) of the Constitution states that a child’s best interests are paramount in every matter concerning them.
The child’s rights to human dignity, equal protection under the law, freedom from violence, protection from cruel or degrading treatment, and freedom from maltreatment were considered. The parents’ rights to freedom, human dignity, and religion (where corporal punishment may be viewed as necessary) were also evaluated. However, the court emphasized that there is no standalone right to family life, and no protection for parents to manage their affairs as they see fit.
After considering these factors, the court determined that the limitation placed on children’s rights in favor of parents’ rights was not justified. The court concluded that corporal punishment is not the only method of discipline available to parents.
While concerns have been raised about how the next generation of children will be disciplined into law-abiding citizens, the court emphasized that parents must now explore alternative discipline methods.