The Constitutional Court has reserved judgment in an appeal challenging the judgment by the High Court in Johannesburg, which ruled that it was illegal for parents to spank their children.
In 2017, the High Court found that physically disciplining children violates their rights.
On Thursday, the Constitutional Court heard arguments from both sides.
Freedom of Religion South Africa wants the apex court to re-institute reasonable moderate chastisement, while Children’s Rights groups and the Minister of Social Development argued for the banning of spanking which they termed ‘Corporal Punishment’.
Freedom of Religion South Africa wants the court to differentiate between reasonable moderate chastisement and punishment. Their legal representative Advocate Reg Willis was at pains to explain to the court that spanking is not punishment, and the difference is important.
However, the Justices challenged his arguments. They were concerned about the high levels of violence in South Africa and the difficulties of drawing the line between reasonable chastisement and violence.
Justice Edwin Cameron probed Willis to elaborate further on his argument.
“We simply don’t know how often children are immoderately and unreasonably chastised when the parent thinks he is acting moderately. Isn’t that the danger of your argument?”
Advocate Hamilton Maenetje for the Social Development Minister pointed out that children are a vulnerable group that needed protecting.
Chief Justice Mogoeng Mogoeng took on Advocate Ann Skelton for Children’s Rights organisations around the violence perpetrated by young people on teachers, and on whether there is a scientific finding on which discipline method was effective.
“So, that might also be the reason why we have a lot of violence because the teachers have not stopped corporal punishment”
Skelton conceded that there was no consensus between the experts about whether corporal punishment should be banned. There was also dissent on the level of impact.
Mogoeng wanted to know what other scientifically proven chastisement methods were available and accessible. The Chief Justice also drew the line between spanking and abuse.
“I don’t think I am putting the bar too high when I say I would be surprised, when I say almost all of us here were subjected to it. It is the abuse that is problematic. It is the abuse that requires to be checked on. That is why there is no study that focuses only on reasonable or moderate chastisement. It’s just not corporal punishment. Assault is bad,” says Mogoeng.
The court will only give judgement on this issue in 2019.
