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On 19 October 2017, the South Gauteng High Court made history in South Africa when it determined that the defence of reasonable chastisement, previously available to parents convicted of assaulting their children under common law, is unconstitutional.
This means that corporal punishment in the home has effectively been prohibited. This is a victory for the many activists who have advocated for prohibition since before the release of the Draft Children's Act in late 2002.
In a case where a father had assualted his son and used the defence, the Children's Institute, Sonke Gender Justice and the Quaker Peace Centre became friends of the court in order to challenge the consitutionality of the defence. The group were represented by the Center for Child Law.
After the finding on Thursday, much of the commentary in social media in the last few days have raised the concern that parents will now be criminalised for 'every little smack', and that the criminal justice system will become even more overloaded.
This is hardly the case. In fact, in her judgement, the judge was at pains to stress that the intention is to guide and support parents in finding more positive and effective ways of disciplining children, and not to charge parents with a crime.
In addition, it is a sad reality that children seldom report even the most egregious assaults against them. The notion that they are now going to stream into police stations and clog up the system with frivolous complaints is highly unlikely. It is also seldom in children's best interests to imprison their parents.
Finally, our legal system operates on the principle that it does not concern itself with the trivial (the lex minimus principle).
It is however understandable that parents may not know where they stand. Therefore it's worth noting that no new offence has been created. In fact, children's right to protection from assault has (finally!) been given the same level of protection as that of adults.
South African law already provides for the illegality of assaulting another person. All this decision means is that you cannot assault your own children, and then invoke the defence of reasonable chastisement.
Where a state response will be warranted, families at risk can be identified and supported to parent and discipline their children in a warm, nurturing and non-violent environment which focuses on the longer-term goal of raising the next generation to be self-sufficient contributing members of a democratic, just and peaceful society.
There are many reasons to prohibit corporal punishment in the home and in all settings. A growing, reliable and valid body of research finds undeniable links between negative psycho-social, behavioural and cognitive outcomes for children who experience corporal punishment in childhood. One striking example is that children who were exposed to corporal punishment scored lower on IQ tests than those who were not.
Another aspect that speaks to the harm of corporal punishment is the numbers of children that are killed in South Africa. Most severe violent incidents, including child homicide, start out as corporal punishment and South Africa's child homicide rate (in 2009, 454 children under the age of five died due to homicide ) is double the global average.
Estimates of the costs of failing to prevent violence against children range in the billions of rand. Save the Children South Africa found in their costs of violence against children study in 2016 that the total cost of VAC amounted to R238 billion per year.
But perhaps the most compelling reason is the simple fact that violence begets violence. In a country with arguably the highest global levels of all kinds of violence (interpersonal, sexual, community), we teach children the wrong lessons when we hit them.
We teach them that it's okay for bigger, stronger, more powerful people to hurt and denigrate those who are smaller, weaker and less powerful. This attitude seems to be fundamental to the high levels of violence we see.
The judgement acknowledged the particular importance of protecting children in the context of these high levels of child abuse and violence.
This judgement by the South Gauteng High Court is an important step in the right direction, and provides a golden opportunity to build a society where might and strength do not always win the day, but compassion and respect and self-discipline help us become an equitable, just and democratic society. It puts us well on the road to doing what 53 countries in the world, seven of them in Africa (Kenya, South Sudan, Tunisia, Benin, Cabo Verde, the Republic of Congo and Togo) have already done: to expressly prohibit corporal punishment in all settings in our current Children's Act.
- Bower is chairperson of the Quaker Peace Centre.
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