DOI gives two thumbs up to the ConCourt ruling against corporal punishment

The Children’s Rights Project of the Dullah Omar Institute (DOI) at the University of the Western Cape welcomes the Constitutional Court of South Africa’s declaration that the common law defence of reasonable and moderate parental chastisement is unconstitutional. The DOI was one of the three partners that was granted permission to submit an amicus brief to the Constitutional Court.

The landmark ruling is triggered as an appeal by Freedom of Religion South Africa, to challenge the declaration of the constitutional invalidity of a parent’s right to administer reasonable and moderate chastisement to her child. The facts leading to the case involved a father who vehemently assaulted his son as a form of chastisement. In deciding this application , the Constitutional Court had to balance the best interest’ principle of a child as a member of a vulnerable group on one hand, and the integral interest raise him or her as a responsible and disciplined citizens of the Republic.

Prof Benyam Dawit Mezmur, Project Head of the Children’s Rights Project said: “In the current state of shocking gender based violence crisis that South Africa faces, and since violence against women and children are inextricably linked, this landmark judgment is a very welcome milestone”. The Court called for the use of less restrictive means like teaching, guiding and admonishing children to achieve the purpose of disciplining children. In relation to the extent of the limitation and its purpose, the Court noted that there was no evidence to show that the benefits of chastisement outweighed its disadvantages.The Court also addressed its mind to possible application of justifiable limitation on a parent’s right to administer reasonable and moderate chastisement to his or her child. It stated that retaining this common law defence would not serve the nature, purpose and importance of the limitation as it would lead to a probable negative consequence of a parent’s prosecution, conviction and imprisonment.

According to Dr Robert Nanima, this decision creates consistency across all provinces with regard to the constitutionality and use of parental chastisement. The earlier High Court decision was only applicable to Gauteng Province, this was because a decision from a Provincial High Court does not bind other Provinces.

The Dullah Omar Institute (and “Community Law Centre” as it was then known], has, along with many stakeholders, been a strong advocate for the banning of corporal punishment in all settings in South Africa. Some of its efforts included awareness raising through research and advocacy and had a lay publication titled “Article 19” named after the important violence against children provision of the Convention on the Rights of the Child, which South Africa agreed to be bound by in 1996. “The ruling is not to be viewed as an event but part of a process - and used as an important stepping stone in our collective efforts to support parents better, and contribute to create a South Africa that is fit for all children“ Prof Mezmur concluded.