By Freedom of Religion South Africa
As most South Africans will know by now, the Constitutional Court has recently ruled that it is illegal for parents to spank their children. The practical implication of the Court’s judgment is that all spanking – whether on the hand or on the bottom, and regardless of how light or well-intended – and even the threat thereof, is now a criminal offence with criminal consequences for the parent/s involved.
The 27-page judgment, written by Chief Justice Mogoeng Mogoeng, was a unanimous decision by the Court based on s 12(1)(c) of the Constitution which states that “everyone has the right to freedom and security of the person, which includes the right to be free from all forms of violence from either public or private sources.” Having found that spanking amounts to violence and is therefore unconstitutional (s 12(1)(c)), the Court found that it also amounted to a violation of human dignity (s 10).
As the Constitutional Court is the highest court in the land, there is no further appeal. It is also not possible for Parliament to reverse the Court’s decision. The only way in which it could potentially be reversed, is if the Constitution were to be amended, which is unlikely.
It is also important to understand that, even though the Court made some observations in relation to the various research studies presented to the Court by both sides on the effects of spanking on children, its decision was ultimately a legal (i.e. whether spanking violates any fundamental human rights) rather than a scientific (i.e. whether or not the research shows that spanking is good or bad) one. As such, it would probably not make any difference, even if more evidence were to come to light that could support the case for spanking.
Bad news for parental rights
The judgment is bad news for parental rights. It effectively says that the State knows better than parents how to raise their children and what is in their best interest.
As a result of the judgment, good parents who love their children and only want what is best for them, will – if reported to the Police or relevant authorities for spanking their child/ren – be criminally charged and, if found guilty, be convicted of assaulting their own children.
In the words of the Court itself, “a proliferation of assault cases against parents is a reasonably foreseeable possibility” (para 74). While they may not necessarily go to jail, they may see their children removed from the family home and a criminal conviction does have certain restrictions in terms of travelling, job applications, working with children (e.g. as a teacher, pastor, children’s church volunteer in church, etc).
Already, within two days after the Court’s judgment, a teacher reported a father to the Police after overhearing the learner tell a friend that she was spanked. Already, divorce lawyers are saying that, in divorce proceedings, parents are using spanking against one another. (See https://www.pressreader.com/south-africa/beeld/20190923/281479278132978)
It is important to remember that child abuse / violence against children has always been illegal. The only thing this judgment does, is to criminalise the lightest tap on the wrist or non-injurious smack on the bottom. These acts are now regarded as assault or violence, without any defence in law.
Bad news for religious freedom
The judgment is also bad news for religious freedom. It effectively says that the State can tell people how to read their Bible and how to live it out.
Bizarrely, the judgment acknowledges that “Christian parents have a general right and capacity to bring up their children according to Christian beliefs”, but in the very next sentence “forces” the same Christian parents “to make an absolute and strenuous choice between obeying a law of the land, or following their conscience” (para 51) – the very thing that Judge Albie Sachs, a self-professed atheist, warned against in Christian Education South Africa v Minister of Education (2000)!
Although by no means every person who reads the Scriptures on discipline of children believes that they mean that parents should physically correct their children, this judgment means the many who do hold this belief, are now facing the stark choice of obeying the law (with criminal consequences if they do not) or obeying their faith (with eternal consequences if they do not).
Perhaps more significant is that if the State can tell us how to read the Scriptures on discipline of children, what will stop the State from telling us how we should read and give effect to any other Scripture e.g. on marriage, gender, etc.? If we then refuse or fail to live out the State’s interpretation, we will face the penalty of the law. This judgment therefore puts us on a very dangerous path towards State control of religion.
It is also important to understand that, as a result of the judgment, certain people have a legal duty to report any instance of spanking (which is now seen as child abuse / violence, regardless of the degree or intention) to the authorities. These include “any correctional official, dentist, homeopath, immigration official, labour inspector, legal practitioner, medical practitioner, midwife, minister of religion, nurse, occupational therapist, physiotherapist, psychologist, religious leader, social service professional, social worker, speech therapist, teacher, traditional health practitioner, traditional leader or member of staff or volunteer worker at a partial care facility, drop-in centre or child and youth care centre” (section 110 of Children’s Amendment Act). Ordinary citizens (including the parent’s own child, a neighbour, a friend, a visitor at church or homegroup, etc.) may, but are not legally forced to, report abuse.
The ramifications of this are huge and could potentially see brother having to report brother simply for living out their faith and doing what they believe to be in the best interest of their children! Given the potentially radical consequences of the judgment for many believers (including pastors, ministry leaders, parents, etc), churches are encouraged to inform and work through the implications of the judgment with their leaders and parents.
Parents would also be
well-advised to familiarise themselves with the requirements and procedures for
the removal of children from their care as provided for in the Children’s Act
of 2005. This is a likely consequence in instances where parents refuse to
comply with the “new law” on spanking.
 In terms of the judgment, parents who discipline their children in terms of faith or culture, expose themselves “to criminal prosecution, possible conviction and possible imprisonment. And the only safety valve available to them is the de minimus rule” (para 52). In terms of the de minimis non curat lex principle (“the law does not concern itself with trifles”), a criminal court can decide to allow conduct that is unlawful to go unpunished because of its triviality. In other words, the parent who is found guilty of assaulting his/her own child will have a criminal record but will not necessarily go to jail. There is no guarantee, however, that the Court will so decide, with the result that even “the minutest of well-intentioned infractions” (i.e. the lightest smack on the hand or the bottom) could in principle be prosecuted (para 52).
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