Children have a right not to be spanked!
In September 2019 the Constitutional Court upheld a 2017 High Court judgement in YG v S (1) in which the common law defence of ‘reasonable and moderate chastisement’ was declared inconsistent with the Constitutional rights to (a) the right to dignity, (b) the right to be free from all forms of violence, and (c) the best interests of a child.
In its unanimous judgement in Freedom of Religion South Africa v Minister of Justice and Constitutional Development and Others (2), the Constitutional Court held that even moderate chastisement (spanking) constituted assault.
Parents who discipline their children with the intention of causing even slight pain can now be charged with common assault. Assault is a common law crime defined as “unlawfully and intentionally applying force to the person of another, or inspiring a belief in that other that force is immediately to be applied to him”. The penalty for common assault is a fine.
Repeated assault of a minor may however result in a charge of domestic violence and abuse of a minor. In this context, domestic violence includes physical abuse or assault (slapping, biting, kicking, and threats of physical violence) and emotional abuse (degrading or humiliating behaviour, including repeated insults, belittling, cursing and threats). Repeated offences of assault against a minor in your care may result in more serious sanction against parents who insist on using corporal punishment to discipline their children.
The Courts based their judgements on three sections of the Constitution.
Section 12(1)(c)
“(1)Everyone has the right to freedom and security of the person, which includes the right—
(c) to be free from all forms of violence from either public or private sources.”
Every child has a right to be free from all forms of violence, including spanking!
Section 10
“Everyone has inherent dignity and the right to have their dignity respected and protected.”
Moderate and reasonable chastisement does impair the dignity of a child. Every child has a right to have their dignity respected and protected by their parents!
Section 28(2)
“[a] child’s best interests are of paramount importance in every matter concerning the child.”
The Constitutional Court held that “The application of force or a resort to violence, which could be harmful or abused, cannot in circumstances where there is an effective non-violent option available be said to be consonant with the best interests of a child.”
Parents are no longer entitled to chastise a child using violence!
In terms of Section 110 of the Children’s Amendment Act, there is a general duty on certain citizens to report domestic abuse and violence against children. Ordinary citizens are given the discretion to report abuse when they become aware of it.
References:
- YG v S (A263/2016) [2017] ZAGPJHC 290; 2018 (1) SACR 64 (GJ) (19 October 2017)
http://saflii.org/za/cases/ZAGPJHC/2017/290.html - Freedom of Religion South Africa v Minister of Justice and Constitutional Development and Others (Parent Centre, Global Initiative to end all Corporal Punishment of Children and Dullah Omar Institute for Constitutional Law Governance and Human Rights as Amici Curiae)
Case Number:CCT320/17 Hearing Date:29 November 2018. Judgment Date:18 September 2019.
https://collections.concourt.org.za/bitstream/handle/20.500.12144/36570/Full%20judgment%20Official%20version%2018%20September%202019.pdf
Further reading:
“Don’t Try this at Home?”: Reasonable or Moderate Chastisement, and the Rights of the Child in South Africa with YG v S in Perspective.
Benyam Dawit Mezmur – Associate Professor of Law, Dullah Omar Institute for Constitutional Law, Governance, and Human Rights, Faculty of Law, University of the Western Cape.
http://www.saflii.org/za/journals/SPECJU/2018/7.pdf
Violence Against Children in South Africa.
https://www.unicef.org/southafrica/SAF_resources_violenceagainstchildren.pdf
Mandatory reporting of child abuse in South Africa: Legislation explored.
M L Hendricks – MA (Clinical Psychology), MPhil (Applied Ethics), LLB, is the principal clinical psychologist at Stikland Hospital, Cape Town, South Africa, and a senior lecturer in the Department of Psychiatry, Faculty of Medicine and Health Sciences, Stellenbosch University, Tygerberg, Cape Town.
http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S0256-95742014000800018
Procedures for Reporting Abuse.
http://www.childlinesa.org.za/educators/for-educators/child-protection-at-school/procedures-for-reporting-abuse/
Reporting Child Abuse.
https://www.legalwise.co.za/help-yourself/legal-articles/child-abuse