OPINION: Are customary practices exempt from the 'no smacking' ruling?


'There are customary practices that are inherently violent.'
'There are customary practices that are inherently violent.'

Since the banning of corporal punishment in the home, the ConCourt ruling has been intensely scrutinised, with the majority of critical voices coming from religious groups

Security guard turned lawyer Advocate Daluxolo Batyi contacted Parent24 with his thoughts on customary practices, arguing that the sometimes-violent traditions have been left in a grey area following the ConCourt ruling. 

His letter follows:

"On different social platforms, debate rages continuously with some expressions of frustration and pronouncement of civil disobedience to the apex court's ban on corporal punishment in the home. 

Some suggested alternatives like detention (sending the little one to 'naughty corner'), deprivation of access to so-called 'goodies' and dialogue with the child. 

In Mzansi style, memes quelled frustration, depicting infants being chased out of their homes with luggage, directed to their new home the Constitutional Court.

However, there is no evidence of the ConCourt judges denouncing the customary practices; for example, Circumcision (Ulwalwaluko), virginity testing and Intonjane initiation (Ukuhlolwa) among others which are are inherently violent.

'It takes a village to raise a child'

Customary law in South Africa refers to a usually uncodified legal system developed and practised by the indigenous communities of South Africa.

Customary law systems finds recognition in Section 211 (2) of the Constitution which states that "A traditional authority that observes a system of customary law may function subject to any applicable legislation and customs, which includes amendments to, or repeal of, that legislation or those customs." 

These communities are characterised by communal values, communal obligations and responsibilities on many if not all facets of community interests. 

The maxim that says, 'It takes a village to raise a child' reverberates across indigenous communities, such that the community may intervene when the biological parents apply disproportionate measures (violence, abuse) in chastising a child. 

There is another maxim that says 'induku ayinamzi' meaning violence does not build a home, indicating a customary stance against violence.

Common law defence

The hierarchy of authority in a traditional community stems from a family up to the Chief and/or King.

The families have their respective family laws, and one can draw an inference that such does not exclude laws applied in raising a child and enforcing disciplinary chastisement under their respective traditions.

As previously mentioned, there are customary practices that are inherently violent, boys undergo traditional circumcision (Ulwaluko), a form of chastisement from boyhood to manhood, and girls undergo virginity testing and Intonjane initiation (Ukuhlolwa).

Both practices would otherwise be declared unconstitutional, calling to mind the concerns of "all forms of violence" as provided for in Section 12 (1) (c) and "dignity" in Section 10. 

However, it is after all, the common law defence of reasonable and moderate parental chastisement which has been declared to be inconsistent with provisions of sections 10 and 12 (1) (c) of the Constitution, not the customary law practise of nurturing (development, caring, reprimanding, training) a child. 

The 'undecided constitution'

Professor Thandabantu Nhlapo, a proponent of customary law, in one of his public speeches referred to it as the "undecided constitution" and further stated the "South African government never gave customary law full and proper recognition".

I opine that some of the Constitutional Court judges might be in concert with Prof Nhlapo's sentiments because they come from this traditional customary law practices. 

It is common course that the judges are bound by their oath of office; however, there is no evidence of the judges denouncing the customary practices. 

It will be interesting to know the stance of traditional leaders in this matter." 

Read more on the topic here:

Smacking kids is still illegal: ConCourt maintains ruling on parental chastisement of children

'My house, my rules, case closed': Parents react to no smacking ruling

Twitter users react to ConCourt ruling against spanking children

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