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Spanking children at home is unconstitutional, top South African court decides

Courtroom and gavel. (Joe Gratz/Flickr)
September 18, 2019

A Wednesday ruling by South Africa’s Constitutional Court upheld a 2017 ruling by a regional high court, which made it illegal for parents to use corporal punishment on their children in their home

The Constitutional Court ruled that corporal punishment, such as spankings, could not be used even to discipline a child, as the South African news outlet Independent Online reported. The country’s highest court determined that parents still have the ability to effectively discipline their children without also hitting them, which it said violates a child’s rights.

The latest decision stems from a 2017 case before a high court in the South Gauteng region of South Africa, where a father was found guilty of assaulting his 13-year-old son for watching pornography. The ruling reportedly abolished the defense of “reasonable and moderate chastisement.”

Freedom of Religion South Africa, a civil rights group, attempted to appeal the original ruling, according to South Africa’s News 24. The group raised the concern that a parent could be charged with assault and could have a criminal record for abuse if the ruling stood. Further still, a record of abuse could result in children being removed from the home.

In March of this year, South Africa’s Department of Social Development removed language from a “Children’s Amendment Bill” which would have proposed criminalization of corporal punishment in the home. Freedom of Religion South Africa, at the time, took the decision as an indication the South African government would moderate its approach to the idea of physical corrective action.

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“Millions of South Africans believe that physical correction, when reasonably and moderately applied, is acting in the best interest of their children. It is encouraging that government has heard what the people of South Africa have to say,” the group’s statement read.

Following the latest ruling, Daniela Ellerbeck, an attorney for Freedom of Religion South Africa, called the decision “disturbing”

[The judgment] makes criminals of many people of faith who believe that the Scriptures permit (if not command) them to physically correct their children . . . as a result, good parents of faith who only want what is best for their children, will potentially see their families torn apart,” Ellerbeck said.

Corporal punishment has entered into the wider purview of concern about violence against children, which is said to be prevalent in South Africa. A 2013 UNICEF summary of police statistics determined 50,688 children were the victims of violent crimes in South Africa between 2011 and 2012.

“Every home and the family should be a safe place for children, but the statistics show us that this is not the case for all children,” the summary reads. “Some of the reasons for the abuse and violence experienced by children are families living in overcrowded houses, alcohol abuse by parents, drug abuse and stress experienced by parents.”

This year France and Kosovo made corporal punishment illegal, making recent 56 countries that have banned the practice, NPR reported. Japan, Scotland, Wales and Italy are also reportedly considering bans on the practice.