“The Jury is Out” on Physical Discipline in the Home

by Daniela Ellerbeck
19 September 2018


It appears that “the jury is still out” on whether or not parents have the right to raise their children as they deem fit without the State dictating parenting methods to them.

The Constitutional Court has agreed to hear FOR SA’s application for leave to appeal against the judgment by the Johannesburg High Court in October 2017, which declared all physical chastisement of children by their parents – regardless of how light or well-intended – to be illegal in South Africa.  The matter has been set down for hearing on 29 November 2018. The fact that the Constitutional Court has agreed to hear this case, is a clear indication that it believes that another Court could have reached a different conclusion regarding the constitutionality of the reasonable and moderate chastisement. For more information about the arguments that FOR SA will be making on appeal, see video at https://forsa.org.za/application-for-leave-to-appeal-constitutional-court/.

In the meanwhile, the Department of Social Development (DSD) has issued the draft Children’s Third Amendment Bill, which proposes certain amendments to the Children’s Act, 2005.  Section 8 of this Bill is highly controversial because it proposes the abolition of any form of physical discipline in the home. It further proposes the removal of the historic common law defence of moderate and reasonable chastisement, which has protected parents from facing a charge of assault if they use any form of physical discipline in raising their children.

FOR SA made written submissions, and also participated in the recent provincial consultations held, with regard to this Bill. (For our submissions on the Bill, see forsa.org.za/document-library, folder “Children’s Act Amendment Bill” and file insert after uploaded) We were greatly encouraged that the majority of the representatives present at the provincial consultations were not in favour of the abolition of the common law defence of reasonable and moderate chastisement and proposed that this clause be removed from the draft Bill.

DSD requested the provincial consultations to submit inputs and comments by 7 September to enable it to consolidate these inputs and to commence with the re-drafting of the Bill. Once the Bill has been accepted by Cabinet, it will be published again for public comments.  FOR SA will be monitoring this closely and will inform our constituency of any significant developments.

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