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While child abuse should not be tolerated, the "reasonable and moderate chastisement" of children as a form of physical discipline by their parents should be allowed, the Constitutional Court has heard.
This was the case put forward by Freedom of Religion South Africa (FOR SA), which has taken a High Court judgment striking down this form of chastisement as a defence in criminal cases, on appeal.
In October 2017, the South Gauteng High Court found that the common law defence of "reasonable and moderate chastisement" was unconstitutional. In that case, a father, a devout Muslim, had beaten his son, 13, severely because he found pornography on his iPad, and argued that he was entitled to do so because he was chastising his son as per his religious beliefs.
FOR SA took the judgment on appeal and argued in the Constitutional Court on Thursday that reasonable and moderate chastisement was not abuse.
The organisation argued that parents have the right to raise their children according to their own religious and moral norms and with minimal interference from the state. While parents do not have specific rights in the Constitution, FOR SA argued that these were set out in international law and agreements which South Africa should abide by.
However, the respondents, including the departments of justice and social development, argued that children's rights trump the so-called rights of parents, and that the best interests of the child are expressly put front and centre in the Constitution.
Warning against discipline 'vacuum'
Advocate Reg Willis, for FOR SA, argued that violence is a subjective term which should be dealt with on a case-by-case basis.
Chief Justice Mogoeng Mogoeng warned against "generalising" about all kinds of chastisement.
While the respondents produced studies showing how children were negatively affected by corporal punishment, Mogoeng questioned the lack of studies presenting the "other side". He said such studies should reflect the views of parents and teachers who had been abused by children. Mogoeng warned against being "swept up" in a wave of "activism" without "balancing" the issue.
Mogoeng cautioned against leaving a discipline "vacuum" by outlawing reasonable and moderate chastisement without ensuring that other kinds of parental support were available to parents through government and other programmes.
But he also questioned whether it was possible to overcome the constitutional right to freedom from violence, if reasonable and moderate chastisement was not outlawed. FOR SA argued that Section 36, which sets out that all rights can be limited if the limitation is reasonable and justifiable, should apply.
FOR SA argued that the High Court judgment places parents in a position where they could go to jail "for the lightest smack" or face the "eternal consequences" of not obeying their faith. Willis said the case before the High Court was not a case where a parent was reasonably and moderately chastising his child, and that it was unfortunate that this case was not being used to challenge this defence.
Rights of the child paramount
Justice Leona Theron questioned whether, given the high rates of violence against women and children in the country, all forms of violence shouldn't be banned.
Justice Edwin Cameron said there was a concern that "if a father goes too far, we'll never know because there are no prosecutions". On the other hand, Cameron said, abolishing the defence could "create a new social norm" that even though some parents were abusers, they know they will not be able to invoke the defence, and levels of violence in the home might decrease as a result.
Representing the departments, advocate Ngwako Maenetje argued that the rights of the child were paramount and said that all religions were subject to competing rights.
"It does not matter for purposes of Section 10 of the Constitution that the parent believes that the degrading disciplinary act is to ensure the child's adherence with what the parent believes to be proper conduct. The dignity is that of the child as a rights-bearing individual, and not an extension of that of his or her parent," he argued.
Advocate Ann Skelton, for the Children's Institute, the Quaker Peace Centre and Sonke Gender Justice, pointed out that in banning corporal punishment, the court had found that administering it was arbitrary, placing children at risk. She said this applied, too, with "corporal punishment in the home".
Emma Webber, representing The Parent Centre, the Global Initiative to End All Corporal Punishment of Children and the Dullah Omar Institute, friends of the court, argued that there were "positive parenting" options that were more effective than using force.
She said this included "positive disciplining" and added that programmes had been successfully rolled out to show parents how to use this method.
Judgment was reserved.
