Even after the Constitutional Court decision on corporal chastisement as a form of child discipline, the following still remains the dominant narrative, particularly among adults: hitting adults is called assault, hitting animals is called cruelty, hitting children is “for their own good”.

You needed to go online and read tweets and social media posts to realise that South African children are under attack from their parents and other adults.

Tweets included: “#ConCourt this ruling just made the lives of black children a whole lot harder”; “Hamba uyohlala noMogoengMogoeng eConstitutional Court” (loosely translated: Go stay with Mogoeng Mogoeng at the Constitutional Court); “Start building prisons and houses for kids, and find people who will take care of them without spanking them because 95% of South Africans won’t just sit and watch kids being disrespectful”; “95% of SA will be in prison #ConCourtRuling”.

More interesting is that many people seem to have forgotten that the Constitutional Court did not issue a blanket order outlawing all forms of discipline. Not many people are discussing alternative forms of discipline.

Somebody will have to talk to the parents on behalf of the children, or at least put into correct perspective the outcome of the Constitutional Court ruling on corporal punishment at home.

Paulo Sérgio Pinheiro, reporting on a study he was appointed to lead by the late Kofi Annan (UN secretary-general’s study on violence against children 2009) noted that:

“In every region, in contradiction to human rights obligations and children’s developmental needs, violence against children is socially approved, and is frequently legal and state-authorised.

“The study should mark a turning point – an end to an adult justification of violence against children, whether accepted as ‘tradition’ or disguised as ‘discipline’. There can be no compromise in challenging violence against children. Children’s uniqueness – their potential and vulnerability, their dependence on adults – makes it imperative that they have more, not less, protection from violence.”

Daily Maverick has carried divergent opinions on corporal punishment and two recent opinions addressed the Constitutional Court’s decision to finally strike down corporal chastisement as unconstitutional – one authored by Oscar van Heerden, the other by myself. It has become very clear that Justice Mogoeng Mogoeng and his Bench are not about to get an “Oscar” for their decision.

“For the state to tell me how to conduct myself in my private space is simply an example of invasive patriarchy. It assumes the right to control movement and behaviour,” wrote fellow Daily Maverick Opinionista Van Heerden.

His view is the decision is “an intrusion into the privacy of the home”. Moreover, it further thrusts South Africa into being a nanny state.

In addition to his view that this decision is an unwelcome invasion of privacy, there are several soul-searching questions asked by Van Heerden, including the following: “According to the dictionary, abuse is to treat with cruelty or violence, especially regularly or repeatedly. Does spanking qualify as such?”

This question reminds me of the 1874 battery case [State v. Oliver, 70 N.C (1874)] wherein it was stated, “If no permanent injury has been inflicted, nor malice, cruelty nor dangerous violence shown by the husband, it is better to draw the curtain, shut out the public gaze, and leave the parties to forget and forgive.”

It would be difficult for any court in an open and democratic country to look the other way when a 13-year-old was kicked as a form of punishment.

Not much can be said on this question because its reliance on the simplistic dictionary meaning of the word “abuse” plays into the hands of serial child abusers. Moreover, this unfortunate dictionary meaning of “abuse” is misplaced if it is intended to refute that corporal chastisement is child abuse. Legally, child abuse is categorised in at least four strands: neglect, sexual abuse, emotional abuse and physical abuse with spanking included.

Perhaps I must drive the point home by referring to a study conducted by the Centre for Justice and Crime Prevention (CJCP) and the University of Cape Town which found “in the interviews administered at schools, 850 respondents (20.8%) reported having been hit, beaten, kicked or physically hurt by an adult who was supposed to be taking care of them. In the self-administered questionnaires at schools, this amounted to 1,410 respondents, or 34.4%. In the interviews administered in respondents’ homes, 18% reported physical abuse by a caregiver; in the self-administered questionnaires completed by respondents at home, the rate reported was 26.1%.”

Let us now take a deep breath and reflect: does your rejection of the anti-spanking decision as a parent also cover or intend to protect that nanny from hell who spanks your child for spilling milk on your mink blanket while you are away from home; who is caught on camera twisting your three-month-old baby’s ears for wetting his nappy; who slaps your nine-year-old boy around the face and burst his eardrum; who throws a book at your child for failing to grasp a homework task quickly because she is in a hurry to take her afternoon off?

I can go on for days.

Another quote from Van Heerden: “For the state to tell me how to conduct myself in my private space is simply an example of invasive patriarchy.”

In Oscar van Heerden’s view, the judgment is “simply an example of invasive patriarchy”. The invasion of privacy of the home argument is problematic, not only because it seeks to constitutionalise assault on children in a society in which abuse and many forms of assault are commonplace, but also because such an argument can be the bedrock of abuse or be used as a shield for the perpetration of abuse.

The rape of women by their husbands was at one point protected under the privacy of home claims. In 2017, for example, the New Delhi High Court was told that to criminalise marital rape may lead to the destabilisation of the unity and institution of marriage and that such criminalisation will be abused to harass husbands. The view, which has for long kept the marital rape privilege untouchable, is that “a man does not commit rape by having sexual intercourse with his lawful wife, even if he does so by force and against her will”. [Rollin M Perkins, Perkins on Criminal Law (1957) p.115].

I may be wrong, but the privacy argument here is analogous to the one made in India where it was held that “this conception of privacy functions on the understanding that the mandate of the state stops at the threshold of the home and family and that the constitutionally guaranteed rights of equality and personal liberty to individuals do not apply within the space of home and the institution of marriage”.

The argument also has remnants of the position held in Pierce v. Society of Sisters [268 U.S. 510 (1925)] that the law “unreasonably interfere[d] with the liberty of parents and guardians to direct the upbringing and education of children under their control… The child is not the mere creature of the state; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognise and prepare him for additional obligations.”

In fact, this case has been the yardstick of several American decisions, with the supreme court in Washington v Glucksberg [117 S. Ct. 2258, 2267 (1997)] confirming that the 14th Amendment’s guarantee of liberty and/or privacy entails in part “to direct the education and upbringing of one’s children”.

Pro-spanking parents seem to favour the dialectic of children’s rights in the home as different from the very same children’s rights outside the home. The argument made is that a child, like women under marital rape privilege jurisprudence, forfeits his or her legal existence, and his/her independent rights in the law.

Parents, like husbands used to conduct themselves under marital rape privilege, assume the child’s rights and believe the duty of the child is complete obedience, even in the face of abusive treatment. The itching hand of parents to spank children is placed above the law; not to mention above the Constitution.

Are we so power-hungry as parents that we can do whatever is possible to justify “a barbaric anachronism” in the form of corporal punishment? Why, despite the legal and constitutional rights we have as a country guaranteed to children, would we want to maintain beating them up as “a form of punishment”? Why support hypocritical arguments for the sake of preserving the supposed rights of parents over the rights of children?

We need to start engaging our mindshifts to understand how invaluable the anti-spanking judgment is to child welfare and child justice. In order to have this understanding, we must understand the origin of the laws of parental chastisement.

Oscar van Heerden says “in many parts of the world, the state has intervened to ban oral sex or sex between men. Were these interventions also justified?”

My response to the above is simple: Any conduct or omission that unjustifiably violates peoples’ freedoms and rights, and/or without just cause erodes their privileges, cannot be justified. Period. Corporal punishment in the home violates the bodily integrity of children, and their constitutionally enshrined rights to be free from any form of violence. It is therefore justified that the state intervenes as it did through this judgment.

This is our reality in South Africa: spanking a child is no longer allowed. The horse from Constitutional Hill to our private homes carrying the “no corporal punishment” message has already bolted; what we can do best as a society is put our hands to good use that does not involve spanking children, discussing constructively positive parenting methods, and appraising the legal and social aspects of physical punishment. DM