Parents in South Africa will now have to think twice about hitting their children as a form of punishment. They will no longer be able to use the special defence plea in court.
Hitting a child was already classified as assault under South Africa’s law, but parents who spanked their children would be able to use the plea of special defence of reasonable chastisement. With this appeal, they would be acquitted if they were able to show the chastisement was reasonable.
However, the ruling by Judge Raylene Keightley found the above defence as inconsistent with the constitution. The judge added that the intention of the judgement was to guide parents in finding more positive and effective ways of disciplining children.
Corporal punishment remains a reality in many African schools, and homes, a colonial legacy used to enforce discipline in the African child. The form of punishment is often routine, and arbitrary, and the unjust practice continues in schools in some African countries despite objections from some parents and rights groups. In many cases, children have been severely beaten, sustaining serious injuries in the process.
In 2014, the Africa Committee of Exports on the Rights and Welfare of the Child had called out South Africa to ban corporal punishment and to promote positive discipline information. The United Nations in 2016 made the same recommendation.
South Africa now joins a number of African countries that have done away with corporal punishment, including Kenya, Zimbabwe, Togo, Cape Verde, Republic of Congo, South Sudan, Tunisia and Benin.
According to the Global Initiative to End All Corporal Punishment of Children report, Prohibiting all corporal punishment of children in Africa: progress and delay, complete prohibition of corporal punishment has been carried in seven states, while prohibition in all schools done in 28 countries. Corporal punishment in penal institutions has been banned in 30 countries and as a sentence of courts in 47 countries. Only 8% of children in Africa enjoy protection from punitive assault by adults.
The South African judgement is a step in the right direction. However, more needs to be done.
“The Global Initiative welcomes this very positive step towards the realisation of children’s right to be protected from all forms of violence. This decision to remove the common law defence should now be confirmed in legislation clearly prohibiting all corporal punishment of children, including in the home, in line with the Government’s international human rights obligations and its previous commitment to enacting full prohibition. The Government of South Africa is urged to enact prohibiting legislation as a matter of priority, with an immediate opportunity to be found in the Children’s Third Amendment Bill,” a statement from the Initiative said.