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Religious Group 'FoR SA' Seeks Leave To Appeal Spanking Judgment

"The reality is that the removal of the reasonable chastisement defence means that any form of physical discipline of a child may fall within the legal definition of an assault. "

10/11/2017 11:50 SAST | Updated 10/11/2017 11:56 SAST
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Freedom of Religion South Africa (FoR SA) has filed an application for leave to appeal the recent spanking ruling by the Johannesburg High Court.

FoR SA executive-director Michael Swain confirmed to HuffPost that the organisation had filed papers on Thursday.

The court found that all physical chastisement of children by parents, regardless of how light or well-intended, to be illegal in South Africa.

Read: South Africa Torn By Child-Spanking Ban

FoR SA describes itself as "a non-profit Christian organisation working to promote religious freedom in South Africa". In a press release, the lobby group said that the application, which requests that the matter be referred to the Supreme Court of Appeal (SCA) in Bloemfontein, only relates to the constitutional issue considered by the court: namely, whether "reasonable and moderate chastisement" is congruent with the Constitution.

The organisation stressed that the appeal specifically does not concern the merits of the father's appeal against his conviction by the Magistrate's Court on charges of common assault, which was the case that gave rise to the high-court ruling.

Read: Child Spanking 'Should Be Up To Parents', FoR South Africa Says

FoR SA, invited as a Friend of the Court in the matter, has taken issue with various aspects of the judgment, and said that their primary concern is their perception that with the stroke of a pen, the high-court judgment has removed a common-law defence which has historically protected parents against a charge of assault and which Parliament had previously upheld in the Children's Act of 2005.

"South African law is very clear that the engine room for law reform is Parliament, not the courts," said Michael Swain.

"For this reason, judges should restrain themselves and not be over-zealous in developing the law, lest they be seen to usurp the role of Parliament."

Also Read: Spanking Is More Harmful To Children Than Parents Realise, Says Psychologist

FoR SA further argues that the court was wrong to equate "reasonable and moderate chastisement" with "abuse" of "violence" towards children. They allege that there is a clear and fundamental difference between "moderate chastisement by a parent motivated by love and in the best interests of their child", and physical violence or abuse, in which the State obviously has a duty to intervene.

The statement further argues that the judgment erodes the "rights" of parents to decide for themselves how best to "discipline" their own children and "disempowers" parents.

Also Read: 7 ways to discipline children without spanking

"There is a massive public outcry following the judgment –– not only from religious parents, but also from non-religious parents whose parental rights and authority have now been severely diminished", said Swain.

"FoR SA is in favour of more training tools and empowerment for parents, not [fewer]."

FoR SA is concerned that the judgment "will have the effect of criminalising good and well-intentioned parents who love their children".

"While the judgment points out that this is not the intention, the reality is that the removal of the reasonable chastisement defence means that any form of physical discipline of a child may fall within the legal definition of an assault. "

Swain claimed that in countries like Sweden and New Zealand, where corporal punishment is banned, hundreds of parents have been arrested and prosecuted, with devastating effects on the harmony of the family unit.