Spanking seen as assault

2018-03-28 06:00
Boitshoko Motsamai

Boitshoko Motsamai

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Question:

I saw it reported in the news recently that spanking your child has been criminalised. Is this true? Will this not result in overloading our justice system even more than it already is?

Answer:

We all know that corporal punishment in our schools has been outlawed for a long time.

But what is the situation at home?

Here it is important to understand that it has always been a crime of assault to hit a child – even your own child. In this sense, spanking is already seen as a crime of assault.

Until recently, however, parents have been able to raise the common law special defence of moderate or reasonable chastisement if criminally charged. If successful with such a defence, they would not be found guilty of assault.

In a recent ruling in the Gauteng High Court, where a minor was seriously beaten by his parent, the common law position was changed by the court. It found that the special defence of moderate or reasonable chastisement is unconstitutional and not in the best interest of children.

In effect, this ruling abolishes the right of parents to hit or chastise their children. It removes any special defence that parents may have used to justify them doing so.

Does this mean that a small tap on the bottom will result in a parent being criminally charged? Probably not, as the de minimis principle of our legal system makes it clear that the law is not concerned with trivialities. However, the judgement essentially now provides the same protection to a child as to an adult. Parents can no longer claim a special defence to justify their spanking.

Parents should be aware that any form of spanking could amount to assault and should refrain from any such conduct towards their or other children in their care and consider alternative methods of discipline.
– Boitshoko Motsamai, candidate attorney, Phatshoane Henney Attorneys

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