By Michael Swain, Executive Director of FOR SA
The recent judgment of the Constitutional Court in the case of FOR SA vs Minister of Justice and Constitutional Development and Others (the so-called “spanking case”) has the potential to bring about a seismic shift in how South African society will function in the future.
The crux of this case was whether or not parents were able to rely on the common law defence of “reasonable and moderate chastisement”. This defence has historically protected parents against a charge of assault if they use reasonable and moderate physical correction to discipline their children. In terms of the Constitutional Court’s judgment, “chastisement does by its very nature entail the use of force or a measure of violence”. As such, it is contrary to s 12(1)(c) of the Constitution which guarantees the right to be free from all forms of violence from either public or private sources, and therefore unconstitutional and illegal.
As a consequence of the judgment, any parent who (for whatever reason) continues to use even the mildest form of physical correction on their child, will face the real possibility of being charged with the crime of assault and (at minimum) face the likelihood of having a life-time criminal record with all the negative consequences in terms of employment, travel etc. that this entails.
The Court’s reasoning
In coming to the conclusion which it did, the Court examined the dictionary meaning of violence, and stated that violence is “behaviour involving physical force intended to hurt, damage or kill someone or something”. In this regard also, the Court found “violence is not so much about the manner and extent of the application of the force as it is about the mere exertion of some force or the threat thereof.” The Court then concluded that “all forms” (referring to s 12(1)(c) of the Constitution) “is so all-encompassing that its reach or purpose seems to leave no form of violence or application of force to the body of another person out of the equation.”
So where to from here? While the Constitutional Court evidently believed that it was correctly interpreting the Constitution and settling the issue once and for all, one of the most interesting aspects of law is that it often has consequences which produce unforeseen effects which have impact well beyond its original and intended scope. Once a principle or precedent is set, it must have general application and you cannot just cherry-pick to suit personal, religious or even societal preferences.
The judgment made it crystal clear that parents cannot exert any form of physical violence on their children. Equally, children are not able, by virtue of their age or legal capacity, to agree to any violence being perpetrated against them. In light of the sweeping application of ensuring that children are protected from “all forms of violence”, it is worthwhile examining other areas where children are currently subjected to violence (as interpreted by the Court) which hitherto have been seen – like reasonable and moderate chastisement – as both normal and acceptable.
One immediate implication of the judgment is its application to male circumcision, where deeply held religious convictions regard this practice as an essential expression of faith. Male circumcision (“Khitan”) is widespread in Islam and accepted as established practice by all Islamic schools of jurisprudence. It is considered a sign of belonging to the wider Islamic community. Although the Qur’an itself does not mention circumcision explicitly in any verse, it has been a religious custom from the beginning of Islam. There is no set age when circumcision should take place, and it can vary from as early as on the seventh day after birth and as late as at the commencement of puberty.
Circumcision in the Jewish faith is even more integral and is an initiation rite for Jewish new-born babies, which usually takes place in a ceremony called a “Brit” (or “Bris”) “milah” (covenant of circumcision) witnessed by family and community members. The ritual is an ancient practice that has been carried out by Jewish parents for more than 3,000 years. According to the Torah (Genesis 17: 9-14), Abraham was commanded by God to circumcise himself, all male members of his household, his descendants and slaves in an everlasting covenant. Under Jewish law, failure to follow the commandment given to Abraham incurs the penalty of “karet” (being cut off from the rest of the community of God). The Torah (Genesis 16:14) clearly states that: “Any uncircumcised male who is not circumcised in the flesh of his foreskin shall be cut off from his people; he has broken my covenant.”
Another area where ritual circumcision is very common is in traditional African culture. “Ulwaluko” is the word used to describe traditional circumcision and initiation into manhood. It is an ancient initiation rite practised (though not exclusively) by the amaXhosa. A male who has not undergone initiation is referred to as “inkwenkwe” (boy), regardless of his age, and is not allowed to take part in male activities such as tribal meetings. It is important to note that while there have been interventions as a consequence of the disturbing numbers of deaths and deformities that result from the circumcision ceremony, it is still a widespread practice.
In terms of s 12(8) of the Children’s Act of 2005, boys under 16 years of age may not be circumcised, except for religious purposes or medical reasons on recommendation of a medical practitioner. Boys over 16 years of age may be circumcised, if they consent thereto after proper counselling. In terms of s 12(10), every boy (depending on their age, maturity and stage of development) has the right to refuse circumcision however.
Although there are well documented and beneficial effects of circumcision in terms of personal hygiene, it is evident that not all circumcisions are performed for that purpose alone. Given that this ritual involves the actual cutting of the flesh of a child (i.e. physical force intended to hurt the child), it is difficult to see that there can be any constitutional reason to allow this “violence” – particularly not for religious reasons – to continue in its current form. As such, it is possible that all forms of male child circumcision should come under review and only those performed for bona fide medical or hygienic purposes should be permitted.
Taken to its logical conclusion, the Constitutional Court judgment and particularly its definition of violence, may even rule out certain sports in the context of schools. This may seem ludicrous, but is a good example of the unforeseen and unintended consequences of a judgment such as the present.
Rugby is the prime example because it is a high-impact collision sport in which players have to exert extreme force in order to acquire and maintain possession of the ball. Injuries are frequent. The probability of a player being injured in a season can be as high as 90% in some studies, depending on the definition used. The majority of injuries, at least 75%, occur during contact or collision, such as the tackle and the scrum. Two-thirds of all concussions occur during the tackle, which is also common in the children’s game where traumatic and repetitive brain injury is a routine occurrence. Cricket as a school sport must also come under scrutiny, given that a hard projectile is hurled at high speed by the bowler at the batsman. Injuries are frequent and there have also been some international, high profile deaths such as South African Darryn Randall, who was struck on the side of the head while attempting a pull shot during a domestic match. It is difficult, if not impossible to parse or redefine the Court’s judgment to permit this high level of violence to continue to be allowed to continue in the South African school system.
As a consequence of the Constitutional Court judgment and its definition of violence and the paramount consideration to ensure that children are protected from any forms thereof, South Africa as a society is now heading into unchartered waters. While it is – and always has been – unlawful to inflict or permit any form of what was formerly considered to be violence against a child, the broadened definition and the removal of any parental input or involvement, may well have effects which go far beyond the original scope of “reasonable and moderate chastisement”. Only time will tell.
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