Constitutional Court says you don’t have a ‘right’ to smack your child

South Africa’s Constitutional Court has ruled that the common law defence of ‘reasonable and moderate parental chastisement’ of children is unconstitutional.

In a unanimous judgement handed down on Wednesday (18 September), the country’s highest court found that there are more effective ways to discipline children without the use of corporal punishment.

While the judgment does not create a new offence – as hitting a child has always been assault under the country’s criminal law – it was previously possible for a parent who smacked a child to raise a special defence of reasonable chastisement to plead.

Parents stood to be acquitted of assault if they could prove that the chastisement was moderate and reasonable.

The ruling follows a 2017 High Court judgement which effectively made all forms of physical correction of children by their parents – no matter how light or well-intended – unlawful.

The appeal has been brought by Freedom of Religion South Africa (For SA), which argued that the High Court judgment will make criminals of well-meaning parents.

“The effect of the (High Court) judgment is that if you give your child even the lightest slap on the wrist, you can be arrested and prosecuted for assault and if convicted, will have a life-long criminal record for abuse of your own children,” said For SA’s attorney Daniela Ellerbeck.

“Not just that, but for a trivial non-injurious slap, your children can be removed from the family home. One can only imagine the damage that this will do to families in South Africa.”

Legal changes 

The Department of Social Development has also previously indicated that it plans to change laws around corporal punishment in South Africa.

In the Children’s Amendment Bill – published for comment in October 2018 – the department said that the Child’s Act should be amended to outline how child discipline will be considered under South African law.

Section 12A of the Act reads:

12A.

(1) Any person caring for a child, including a person who has parental responsibilities and rights in respect of a child, must not treat or punish the child in a cruel, inhuman or degrading way.

(2) Any punishment, within the home or other environment, in which physical force or action is used and intended to cause some degree of pain or harm to the child is unlawful.

Upon being reported for violating this section, the parent must be referred to a prevention and early intervention programme.

When prevention and early intervention services have failed, or are deemed to be inappropriate, and the child’s safety and wellbeing is at risk, a designated social worker must assess the child.

The section also notes that the Department of Social Development must take all reasonable steps to implement education and awareness-raising programmes concerning these new rules.


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Constitutional Court says you don’t have a ‘right’ to smack your child