FOR SA Defends Parental and Religious Rights in the Concourt

by Daniela Ellerbeck
12 December 2018


By Freedom of Religion South Africa

On Thursday, 29 November, Freedom of Religion South Africa (FOR SA) appeared in the Constitutional Court to defend the rights of parents to raise their children in accordance with their moral or religious convictions. In particular, FOR SA asked the Court not to criminalise well-meaning parents who love their children and only want to do what is best for them, including reasonably and moderately chastising them at times when necessary, always in love.

Commenting on the day in Court, FOR SA said, “God is faithful! The judges asked some challenging questions (to us and our opponents), but we managed to deal with them all and had a good day in court. It is of course difficult to say which way it will go, but we are really pleased with how it went. Thank you so much to everyone, around the country and even abroad, who prayed for us – we could not have done it without you. God is good!”

The case before the Constitutional Court was heard by ten judges, with Chief Justice Mogoeng Mogoeng presiding. Adv Reg Willis, appearing on behalf of FOR SA, was up first and argued that there is a fundamental difference between violence and abuse of children (that is already prohibited in South African law, and where the State absolutely has a duty to intervene), and reasonable and moderate chastisement which was entirely lawful up and until the judgment of the Johannesburg High Court last year (which declared all forms of physical correction in the home – no matter how light, or well-intended – to be “assault”, and therefore a criminal act with criminal consequences).

Next up, was the Counsel appearing for the Minister of Social Development who argued against any form of physical correction in the home. The same “anti-smacking” position was adopted by the Centre for Child Law, whose Counsel argued that reasonable and moderate chastisement is harmful for children and contributes to the high levels of violence against children in the country. Much the same was argued by the Counsel for The Global Initiative To End All Corporal Punishment of Children (who was admitted as a “Friend of the Court”), who primarily made submissions on the benefits of “positive parenting”.

In closing argument, FOR SA’s Adv Nadene Badenhorst asked the Court not to place millions of people in South Africa, who believe that the Scriptures permit (if not command) reasonable and moderate chastisement, before the “unconscionable choice” of obeying the law (with criminal consequences if they do not), and obeying their faith (potentially with eternal consequences if they do not) – because this is exactly what the High Court judgment will do if it is upheld by the Constitutional Court. She submitted to the Court that, if the Court were to place believers in this position, many of them would have to take the same position as Peter in John (in Acts 5:29, when they were told by the authorities to stop preaching the Gospel) and say “we must obey God, rather than men”.

Judgment has been reserved and may take a few months to come out.

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