Article by :Durban Attorney: Fawzia Khan
The Constitutional Court delivered a landmark ruling on the issue of a parent’s right to administer corporal punishment to their children. Parents have in the past had the right to discipline their children in a number of different ways. For many parents, the use of moderate and reasonable chastisement was part and parcel of child rearing and in many cases that is how many were raised by their own parents. It also can be found in their religious and cultural beliefs.
On 18 September 2019, the Concourt ruled that the (unwritten) common law defence which allowed a parent to use reasonable and moderate measures to chastise a child was inconsistent with the Constitution. This means it’s no longer lawful for a parent to mete out any corporal punishment on their child, to discipline the child.
The case started out in the criminal trial court a few years ago when a father was found guilty in the Magistrate’s Court of severely assaulting his 13-year-old son, whom he accused of watching pornographic material. The father appealed the decision to the High Court, arguing that it was his right as a father to use moderate force to discipline his son. He also said the son needed to know that his conduct in watching pornography was against their religious beliefs.
The high court judge used the case as a test case and ruled that the matter be pended to allow for various organisations to make submissions to the court and provide input on whether or not the common-law defence for moderate parental chastisement was in conflict with our constitution.
A number of child centred organisations then joined in the legal proceedings as “friends of the court”. They argued that the common- law defence was incompatible with the right to human dignity; the right to equality and the right to freedom and security of the person. The Concourt said that the best interests of children must always be considered. It said that as children are a vulnerable group, they are in need of protection, if we are to raise a society of well-adjusted and responsible citizens.
The court said that Section 10 of the Constitution allows children to be recognised as “independent human beings who are inherently entitled to the enjoyment of human rights, regardless of whether they are orphans or have parents”. The court said that chastisement is meant to discipline and help a child appreciate consequence of his / her actions. Parents are required to use disciplinary means which are more consistent with love and care and one which will provide the more balanced protection of the rights of the child. It said resorting to violence could be harmful or abused and was not in the best interests of a child.
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