Doing away with the defence of reasonable chastisement
Last week the South Gauteng High Court in Johannesburg, South Africa ruled that the common law defence of reasonable chastisement is not in line with Constitution, and no longer applies in our law. 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.
It has always been the crime of assault to hit a child -- even your own child -- but if charged, parents had a special defence which said that if the chastisement was reasonable they would not be found guilty. It is that special defence that this judgment has removed, through a development of the common law, to bring it in line with the Constitution.
The Court emphasised that the intention is not to charge parents with a crime and have mass prosecutions, but rather to guide and support parents in finding more positive and effective ways of disciplining children. The need to protect children is particularly important in the context of the high levels of child abuse and violence that pervades our society.
A recent large-scale community-based study conducted in two provinces of South Africa (Mpumalanga and Western Cape) found that physical abuse and emotional abuse were very common in the home with very high levels of emotional abuse (76.2 percent) and physical abuse (58.6 percent) reported by children. These forms of violence often co-occur and the child's parent or caregiver is commonly the perpetrator of emotional and physical abuse.
Similarly, a community-based study in the Eastern Cape found that 89.3 percent of young women and 94.4 percent of young men (71 percent of all young people), disclosed experiencing harsh physical punishment by their parents or caregivers before the age of 18.
In this study, a large proportion of young people (79.9 percent of young men and 64.5 percent of young women) reported having been beaten as a child with a belt, stick or another object, and a quarter of young people said they had often or sometimes been left with marks or bruises. This evidence highlights that more severe forms of harsh discipline are common for children.
Our Constitution and the Children's Act enjoins us to guide parents towards more positive and effective parenting of children, rather than using violence.
A significant proportion of young people experienced beatings every day or every week when they were children (27.3 percent of young men, 33.4 percent of young women). Qualitative interviews with children revealed that often such beatings are for minor transgressions and that only severe beatings that result in injuries get reported to authorities, suggesting that most experiences of physical punishment remain hidden.
The Court acknowledged that not all corporal punishment by parents amounts to abuse, and the judgment does not imply that one smack by one parent leads directly to very serious abuse. The connection is there, however, in the impunity that society shows towards using violence.
Our Constitution and the Children's Act enjoins us to guide parents towards more positive and effective parenting of children, rather than using violence. The High Court ruling reminds us of these obligations towards children and demands from us that we do not equate "discipline" with "corporal punishment". We need to find discipline methods that will ensure that we realise a non-violent society.
Karabo Ozah is a senior attorney and the deputy director of the Centre for Child Law, University of Pretoria.Suggest a correction