The ruling by the South Gauteng High Court that parents who hit their children will no longer be able to raise a special defence if they are charged, has been welcomed by local children’s rights organisations.
The ruling on October 19 follows the case of a 13-year-old boy whose father was charged with assaulting him with the intent to do grievous bodily harm as well as a second charge related to the assault of his wife. The father was found guilty by the Johannesburg Regional Court on both charges on the verdict of common assault.
The father appealed the convictions in the South Gauteng High Court where judge Raylene May Keightley, after hearing medical evidence on the nature and extend of the assault on the boy and requesting counsel for both the appellant and the State to make submissions and inviting interested parties to be joined as amici curiae (friends of the court) to make submission on the issue, ruled that the common-law defence of reasonable chastisement is inconsistent with the constitution.
In practical terms the judgment means that parents who hit their children will no longer be able to raise a special defence if they are charged.
Cape Town NGO Sonke Gender Justice, who was one of the friends of the court who made a submission, welcomed the court ruling and added that the judgment does not have the effect of creating a new offence.
The organisation said it has always been a crime of assault to hit a child – even your own child – but if charged, a parent had a special defence which said that if the chastisement was reasonable they would not be found guilty.
Wessel van den Berg of Sonke Gender Justice said the ruling as an important step towards children’s rights and violence prevention in South Africa. “A large body of research shows that there’s a strong association between men’s use of violence and their exposure to harsh physical punishment as children. This ruling promises to reduce multiple forms of violence.
“We look forward to working with government and the broader public to roll out education campaigns that ensure parents understand alternatives to corporal punishment and can use non-violent positive discipline approaches,” he said.
An affidavit by Professor Shanaaz Mathews, who is an expert on violence against children and director of the Children’s Institute at the University of Cape Town, pointed out the linkages between corporal punishment and other forms of violence: “Experiences of corporal punishment undermine trust between a parent and child and can instil mistrust, aggression and a lack of empathy in the child.
“This sets the child up for a pathway of emotional insecurity and increases the likelihood for them to abuse their own children and intimate partner.”
She said the judgment points out that South Africa is not the first African country to do away with corporal punishment in the home. Professor Mathews said the court pointed out that half of the countries in Africa have publicly committed to doing so (including South Africa), and that Kenya, South Sudan, Tunisia, Benin, Cabo Verde, the Republic of Congo and Togo have all actually abolished corporal punishment in all settings.
Carin-Lee Masters, clinical psychologist and advice columnist for the Plainsman, said most mental health professionals support this law against spanking, including herself. “Corporal punishment has been the ‘go to’ discipline approach by many parents in South Africa. However, sadly spanking is often abused and frustrated parents may vent their frustrations and anger on their children using this as a means. This is never good and can lead to normalising of violence in the home and in the developing mind of a child,” said Ms Masters.
She said it does not allow a parent to help the child think through and solve problems including behavioural ones. “Parents are the child’s first and most important role models and if problems are dealt with by beatings and spankings, what valuable lessons are children missing and not learning?
“By beating a child for every infringement the child gets frightened into submission and/or gets the message that it’s okay to lose control of your emotions and beat others up,” said Ms Masters.
Alternatives to spanking your child
Ms Masters said alternatives for parents include to set firm boundaries from the start and discuss this with the child, so they are well aware that when they overstep these boundaries, concomitant consequences will be firmly instituted.
She said these can include taking away something that they value highly, including gadget time (hours to days depending on the transgression), removal of other privileges such as spending time with friends, outings they planned, no pocket money, gifts withheld that were on their wish list. Younger ones can also get time out for short periods in a very boring space where they can’t play or do something fun, although some debate this method does not work.
“It may be ineffective for more older children. Mostly, when parents have a loving, open (communicatively) and supportive relationship with their children, this can help significantly in engendering an environment where parents and children can talk openly all the time and especially when a problem arises.
“It’s never easy to be a parent and mostly you need lots of patience and hair on your teeth, but a child who is mostly loved with clear boundaries in place and a touch of firm discipline often grows up into a well-balanced, compassionate and confident adult and citizen,” said Ms Masters.