Christian organisation Freedom of Religion SA has criticised the Constitutional Court’s latest ruling that spanking children is unconstitutional. Picture: 123RF/Artit Oubkaew
Christian organisation Freedom of Religion SA has criticised the Constitutional Court’s latest ruling that spanking children is unconstitutional. Picture: 123RF/Artit Oubkaew

Lobby group Freedom of Religion SA (FOR SA) says a recent Constitutional Court ruling has left parents with a dilemma: obey God or obey the law.

The top court on Wednesday upheld a high court ruling that effectively does away with the common-law defence of reasonable chastisement when spanking a child.

The case has its origins in the conviction of a Johannesburg father for assaulting his 13-year-old son. The father later argued in his defence that he was administering moderate and reasonable chastisement under common law.

But the high court ruled that this was unconstitutional, on the grounds that it violated the child’s right not to be discriminated against on the basis of age, equal protection of the law, dignity, freedom from all forms of violence and degradation, and bodily and psychological integrity.


LISTEN | What impact will the ConCourt ruling on spanking have?


FOR SA's Daniela Ellerbeck criticised the ConCourt's decision to uphold this ruling.

“It is disturbing ... that the right of parents to raise their children according to their own convictions and what they believe to be in the best interest of their children has not been upheld,” she said.

However, the ruling was met with excitement by those at the forefront of children’s right. “Yes! Yes!” chanted some of those who attended the proceedings.

Among those present was Prof Shanaaz Mathews, director of the Children’s Institute at the University of Cape Town, who hailed the judgment.

“We’re absolutely elated by the ConCourt judgment. It’s a fight we’ve been fighting for more than a decade. It [spanking] is really unconstitutional. I think it is important that we really understand that with corporal punishment in the home … you cannot differentiate between what is abusive and what is discipline,” said Mathews.

The judgment indicates that parents bear the primary duty to lovingly raise their children in terms of their religious, cultural and other “nonharmful” beliefs, which entail the administration of moderate and reasonable chastisement, without being exposed to the risk of criminal charges.

“The right to be free from all forms of violence or to be treated with dignity, coupled with what chastisement does in reality entail, as well as the availability of less restrictive means, speak quite forcefully against the preservation of the common-law defence of reasonable and moderate parental chastisement,” said chief justice Mogoeng Mogoeng when reading out the judgment.

Chief justice Mogoeng Mogoeng. Picture: REUTERS
Chief justice Mogoeng Mogoeng. Picture: REUTERS

“There is, on the material before us, therefore no justification for its continued existence, for it does not only limit the rights in sections 10 and 12 of the constitution, but it also violates them unjustifiably.

“It is declared that the common-law defence of reasonable and moderate parental chastisement is inconsistent with the … constitution.”

But Ellerbeck warned that this would set a dangerous precedent that the state can dictate to people of faith how to read and live out the scriptures, which eroded their right to religious freedom. She said the judgment would affect how parents raised their children.

“For many, they will have no choice but to obey God rather than the law. As a result, good parents of faith who only want what is best for their children will potentially see their families torn apart, as is happening in other countries where physical correction has been banned,“ she said. “This will destroy families as the bedrock of our society.“

The organisation added that there was a need to differentiate between violence and discipline.

Meanwhile, Save the Children South Africa described the judgment as a victory.

“This is a historic judgment and a victory in the ultimate bid to end violence against children. As we commemorate Heritage Month, this judgment reflects on the important legacy that we will leave for children in South Africa,” said the group’s programme manager, Divya Naidoo.