Spanking a child has been declared illegal in South Africa, thanks to a high court ruling. But now the judgment is being challenged, with an organisattion filing leave to appeal in the hope that another court will come to a different conclusion. By PUSELETSO NTHATE.
On Thursday last week, Freedom of Religion South Africa (FOR SA), a non-profit Christian Organisation, filed an application for leave to appeal against a recent judgment by the Johannesburg High Court that declared all physical chastisement of children by their parents to be illegal in South Africa.
The organisation is concerned that the judgment have the effect of criminalising good, well-intentioned parents who love their children. Despite the judgment of the Johannesburg High Court highlighting that this was not the point, FOR SA says the reality is that the removal of the reasonable chastisement defence means that any form of physical discipline of the child may fall within the legal definition of an assault.
The judgment came after an appeal by a father who was convicted of beating his 13-year-old son. The father accused his son of watching pornography.
The court ruled that the defence of reasonable chastisement was not in line with the Constitution and no longer applied in law.
The judgment didn’t create a new offence, as hitting a child has long been assault under the country’s criminal law.
FOR SA was invited by the court to make submissions as an interested party with regard to the constitutional issue.
FOR SA Executive Director, Michael Swain, said: “The organisation’s appeal does not concern the merits of the father’s appeal against his conviction by the magistrate’s court on charges of assault.”
Its primary concern is that, with the stroke of a pen, this judgment has removed a common law defence that has historically protected parents against a charge of assault.
FOR SA argues that the court was wrong to equate reasonable and moderate chastisement with abuse and violence towards children.
“There is a clear and fundamental difference between moderate chastisement by parents motivated by love and in the best interest of their child and physical violence or abuse where the state obviously has a duty to intervene,” added Swain.
It says the judgment erodes the rights of parents to decide for themselves how best to discipline their own children. “It disempowers parents, especially those with poorer areas and overcrowded accommodation who do not have the luxury of sending children to ‘naughty corners’ and where there are few if any privileges to take away,” said Swain.
FOR SA believes that the judgment also overrides the belief and conscience of parents who believe that holy texts allow (if not instruct) them to use moderate chastisement as one of the methods for raising and disciplining their children.
“While not all religious parents hold this view, this judgment nevertheless has the effect of interfering with doctrinal matters. This sets a dangerous precedent since the court’s judgment has effectively curtailed and limited religious rights and freedoms,” said Swain.
In its founding affidavit submitted as part of the original application, it explains that its interest in the matter lies in that millions of believers hold that the scriptures command reasonable and appropriate correction of their children.
It said that for millions of believers, child correction including physical chastisement at the time is central to their faith.
FOR SA says it is in the public interest, as well as in the interest of justice, that the judgment is appealed.
“The question which the court will have to decide is whether there are reasonable prospects that another court may come to a different conclusion than the High Court’s judgment,” said Swain. DM
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