Advocate Nadene Badenhorst,
Legal Counsel, Freedom of Religion South Africa (FOR SA)
On Wednesday 30 March, Joshua Generation Church delivered its appeal against the findings and recommendations of the South African Human Rights Commission (SAHRC) in ‘the spanking case’, to the SAHRC.
The Church’s appeal follows a finding by the SAHRC in January 2016, that spanking in the home violates children’s and other constitutional rights, and is for that reason unconstitutional and unlawful. In terms of the Report, the Church may no longer believe, preach and teach (and parents may no longer practice) the Scriptures relating to child correction. As such, the Report is a gross violation of parental rights and religious freedom in South Africa.
The Church’s appeal to the SAHRC is based both on substantive and procedural grounds, and will be considered by the Chairperson (‘the substantive appeal’) and the Chief Operations Officer (‘the procedural appeal’) of the SAHRC respectively. In terms of the SAHRC’s Rules, the Commission has approximately 3 months to consider and finalise the appeal.
In the meanwhile, the Department of Social Development (DSD) this month held a consultative workshop on the Child Protection Policy that will inform the proposed amendments to the Children’s Act (including the proposed ban on spanking in the home). At the workshop, the proposed amendments were put to the vote, with the majority of attendees voting in favour of an outright legal ban on spanking. According to DSD, the proposed amendments will be pushed through Parliament as soon as possible, before the local elections. (For more about this, see the content under the heading “Proposed amendments to the Children’s Act”, further down in this article).
Should the proposed amendments to the Children’s Act be accepted by Parliament and spanking become illegal, there is a real threat that good parents who love their children and only want what is best for them, could be arrested and have their children removed from them and placed in foster care.
Substantive grounds of appeal
In a 37-page document dealing with the substantive grounds of review, the Church contends that the SAHRC’s findings and recommendations as set out in its Final Report, contain a number of material omissions; errors of fact; as well as errors in law.
So for example, on the facts, the SAHRC incorrectly found that the Church “advocates” corporal punishment as a means of disciplining children and accordingly, incorrectly found that the Church should “furnish the Commission with a written undertaking that it will desist from advocating corporal punishment as a means of disciplining of children.” Had the SAHRC applied its mind to the facts and to the submissions made by the Church, it would have found that the Church does not actively “promote” or “require” members to spank their children. The Church does however believe, teach and preach (the whole of) the Bible, as it has every right to do, including therefore the Scriptures on child correction. How those Scriptures are interpreted and applied by parents however, is up to each parent to decide for themselves, because every child is unique.
In addition to a number of material factual errors, the Report contains a number of material legal errors. So, for example, the SAHRC incorrectly found that international and regional treaties which South Africa had signed “call for a total prohibition of corporal punishment of children in all surroundings”, and “require” South Africa (as a State Party) to abolish spanking in the home. On a plain reading of these treaties, it is clear that spanking is not expressly prohibited. At most, it is the opinion of the committees charged with the oversight of the treaties, that spanking is a “cruel” or “degrading” form of punishment, as expressed in the committees’ General Comments. In this regard however, it is trite law that General Comments are not in themselves binding on State parties, and State parties will not necessarily be in breach of their treaty obligations if they reject an interpretation adopted by an oversight body. Incidentally, for this very reason also, spanking remains legal in Canada, United Kingdom and Australia (all of who are State parties to the Convention on the Rights of the Child).
In its Report further, the SAHRC placed much reliance on the fact that our Constitutional Court had already abolished corporal punishment for juvenile offenders (in S v Williams, 1995) and in the context of the school (in Christian Education SA v Minister of Education, 2000). According to the SAHRC, there is no reason why the same considerations should not apply to the home context. When regard is had to both cases however, it is very clear that the specific circumstances that are present in institutionalised settings and in the context of the school (and on the basis of which spanking was abolished in those contexts), are not necessarily present in the context of the home. As such, these cases cannot automatically be applied to, and serve as authority for, the abolition of spanking in the home. In fact, in Christian Education, the Constitutional Court itself made it very clear that there is indeed a great distinction between spanking in the context of the school, and the home!
Most importantly however, the SAHRC’s Report is a violation of parental rights, as well as the human right to religious freedom (s 15 of the Constitution), freedom of expression (s 16 of the Constitution) and the rights of religious communities (s 31 of the Constitution). The Report effectively dictates to churches and believers across different faith groups in SA what they may and may not believe, teach and preach, and how people should live their lives according to their religious convictions and beliefs. In this regard, the Church rightly contends that it is not the place of the SAHRC, as a secular institution, to tell believers how to read and interpret their sacred texts. That is between them and God alone. The Report effectively puts believers before the choice of obeying the law, or obeying their faith (with legal consequences should they choose to obey their faith instead). This is unconscionable and unconstitutional, particularly in light of the mandate given to the SAHRC by the Constitution to protect and uphold all fundamental rights in the Constitution, including freedom of religion and freedom of (religious) speech.
Procedural grounds of review
In a 17-page document dealing with the procedural grounds of review, the Church points out that since the filing of the original complaint in 2013, the SAHRC had made a number of material procedural errors, justifying the setting aside of the Report.
So for example, the SAHRC acted irregularly by joining additional Complainants (incl. Sonke Gender Justice, and children’s rights activist Carol Bower) to the complaint without advising the Church of the fact that applications for joinder had been made, providing the Church with the copies of the applications, or indeed an opportunity to respond thereto. The SAHRC furthermore failed to follow the proper procedure (in terms of its Rules) for resolving the dispute, including consulting and co-operating with the CRL Rights Commission who has overlapping jurisdiction in matters affecting religious and related rights.
The SAHRC also acted irregularly in failing to make the (Preliminary) Report available to other implicated persons and organisations and giving them an opportunity to reply thereto in terms of the SAHRC’s Rules. In this regard, the Church reminded the SAHRC that it represented and was supported in this matter by a large number of churches and church organisations across South Africa who represent millions of people, as well as the SA Jewish Board of Deputies (SAJBD) and the Muslim Judicial Council (MJC). These churches and religious organisations, who hold to a similar belief and view on the issue of child correction, stand to be directly affected by the SAHRC’s Report and as such, should have been granted an opportunity to respond to their findings and recommendations prior to finalising of the Report.
On the facts, it is furthermore evident that the SAHRC was biased and had prejudged the matter by the time it requested the Church to respond to the original complaint in 2013. Finally, the Church contends that the SAHRC cannot lawfully declare or compel anyone to stop believing, preaching and teaching, or indeed practicing, something that neither the Court, nor Parliament, has declared illegal to date, and that the SAHRC has exceeded its (constitutional and statutory) powers in seeking to do so.
Proposed amendments to the Children’s Act
In the meanwhile, the Department of Social Development (DSD) this month held a consultative workshop on the Child Protection Policy that will inform the proposed amendments to the Children’s Act (including the proposed ban on spanking in the home). At the workshop, it was made clear that the government’s intention is to push the proposed amendments through Parliament as soon as possible, before the local elections.
The workshop was attended by a number of invited NGOs, as well as a representative from Joshua Generation Church. Attendees were asked to vote on the following two options only (i.e. no voting option was given in opposition to a legal ban on spanking):
OPTION 1 (outright ban): “Disciplining of children must guide them in a humane manner, and must protect children’s constitutional right to physical and psychological integrity. No child may be subjected to corporal punishment or be punished in a cruel inhuman and degrading way, and someone who does so will not have a special defence of ‘reasonable chastisement’. However, parents who do subject children to inappropriate punishment must be referred to prevention and early intervention services, and prosecution must be reserved for cases where prevention and early intervention services have failed or are inappropriate in the circumstances of the case. DSD must undertake education and awareness raising, and must ensure adequate programmes across the country.” (Most organisations voted in support of this option).
OPTION 2 (middle ground): “Disciplining of children must guide them in a humane manner, and must protect children’s constitutional right to physical and psychological integrity. The special defence of reasonable chastisement is no longer available. However, parents who do subject children to inappropriate punishment must be referred to prevention and early intervention services. DSD must undertake education and awareness raising, and must ensure adequate programmes across the country.”
Should the proposed amendments to the Children’s Act be accepted by Parliament and spanking become illegal, there is a real threat that good parents who love their children and only want what is best for them, could be arrested and have their children removed from them and placed in foster care. This is already happening in Sweden (the first country to legally ban spanking in the home), where the criminalisation of spanking has resulted in hundreds of normal parents being harassed by the police and social authorities, prosecuted and sentenced, because they have employed mild spanking for bad behaviour. In South Africa, last year already, children were removed from parents whose Christian belief was regarded as a threat to their children. If this is already happening on account of homeschooling, one can only imagine what would happen on a charge of assault (in the event of spanking being criminalised)!
Since 2014, FOR SA has been consulting with various experts with a view to putting comprehensive legal and social science research and arguments before Parliament, in support of retaining reasonable and moderate chastisement in the home. We believe that, instead of creating another law, government should rather spend its time and taxpayers’ money on implementing existing laws which already firmly protect children against child abuse. In this regard, FOR SA has received a mandate from churches and religious leaders representing millions of people, to make submissions to Parliament in opposition to a legal ban on spanking (once the proposed amendments to the Children’s Act have been published and opened up for comment).
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via Gateway News