Spank the child and collide with the law

Spare the rod and spoil the child, the saying goes. But applying it literally in South Africa today can land you in hot legal water.

This follows a ruling by the South Gauteng High Court which confirms a ban on smacking of children by their parents.

Not only are they banned from spanking, they can no longer use the common law defence of corporal punishment as “reasonable chastisement” if charged with assaulting their children.

The ruling last month by Judge Raylene Keightley cuts deep into the family and parenting, and depending on which side of the corporal punishment fence one sits, may elicit a positive or a negative response.

At the centre of the case was a father who had beaten and kicked his 13-year-old son for visiting porn websites on the family iPad. The teenager suffered several bruises as a result.

The father was guilty of assault but appealed.

While Keightley found that smacking children was a violation of the “best interest of the child” principle contained in the Constitution, she made it clear that her objective was not to put parents behind bars.

Prosecution should not be the first resort, she said. Other interventions must be tried first.

The judgment followed a decision last year by the South African Human Rights Commission (SAHRC) in dispute over a church promoting spanking as punishment.

The SAHRC condemned any smacking or slapping of children on the basis that it violated their constitutional right to dignity.

Further, children should not have a lesser standing than adults.

At the same time, the SAHRC pushed for laws to ban any physical disciplining of children.

This was in line with requests from the African Union to the South African government to ban corporal punishment in all settings – including the home, said University of Cape Town Children’s Institute researcher Stefanie Röhrs.

The law was clear, she said – corporal punishment, no matter who applied it, and no matter how light, violated a child’s rights.

Hailing Keightley’s finding as a landmark judgment, Dr Shahida Omar of the Teddy Bear Clinic South Africa said parents should not see it as a punishment for them but rather a tool to promote positive parenting.

“It’s been the norm that parents easily beat their children when they misbehave, often going above and beyond the normal boundaries of physical punishment. This law not only seeks to protect the child but to forge good relationships between the child and parents,” she said.

Discipline was not about violence but to teach children about non-tolerable behaviour, Omar said.

“We’re such a violent nation ... one of the most violent in the world. This is mostly because we’re taught as children that it’s okay to resort to violence.

“When we find ourselves in a situation what do we do? We react in a violent manner. When a child misbehaves what do we do? We beat that child violently. This becomes learned behaviour which we end up practising throughout our lives. With this law we are hoping to change that.”

Family Policy Institute director Errol Naidoo disagrees.

He said reasonable chastisement was sometimes necessary and did not amount to child abuse.

“Smacking a child with a hand or switch, which leaves no marks, is considered reasonable.

“My mother used a ruler on my hand or my bottom and I’m grateful. I wouldn’t be the person I am today if wasn’t for that. Discipline in the home and at school is necessary for children. Calling it abuse is an over-reaction, completely over the top.”

Michael Swain, for Freedom of Religion South Africa (Forsa), an umbrella non-profit organisation for millions of Christians, said the Bible recommended reasonable and appropriate correction of children.

His organisation was invited by the court to make a submission.

Parents had a duty to ensure their children were brought up to become responsible adults, with a sense of right and wrong – something ultimately in the child’s best interests. Discipline was an important part of this, he said.

Forsa was concerned the judgment encroached on parental authority, as well as the freedom of millions of South African parents who believed reasonable and moderate physical chastisement from time to time was in the best interests of their children, he said.

“Although the judgment says ‘as far as possible, parents should not be criminalised’, in law it is possible that criminal sanctions may be imposed and children who are considered at risk of abuse or violence in the family home, may be removed from their parents,” he said.

He said the distinction between discipline and abuse was clear.

“Forsa deplores the high rates of child abuse and domestic violence, and strongly condemns any form of violence against children.

“Every child, regardless of race or culture, is created in the image of God and is therefore infinitely valuable and has immense human dignity,” Swain said.

New Zealand, where a controversial anti-smacking law was passed a decade ago, provides an interesting case study.

Freedom First national director Bob McCoskrie said that rather than impacting the real issue of child abuse, the law had criminalised good parents, harming children and families in the process: “Rather than tackling rotten parents who are abusing their children, it has targeted well-functioning parents.”

He said a report last year on the effects of the anti-smacking law had not provided a single social indicator showing significant improvement with regard to child abuse cases since the law was passed in 2007.

But shockingly, police statistics revealed an increase of 136% in physical abuse, 43% in sexual abuse, 45% in neglect or ill-treatment of children and 71 child abuse deaths after the passing of the law.

“New Zealanders predicted all of this before the law was passed, but their concerns were ignored.

“The politicians and anti-smacking lobby groups linked good parents who smacked their children with child abusers, a notion roundly rejected – and still rejected – by New Zealanders,” McCoskrie said.

“The anti-smacking law assumes that previous generations disciplined their children in a manner that was so harmful that they should now be considered criminals.

“But anti-smacking laws are problematic because they contradict many adults’ own childhood experiences with discipline and their long-term outcomes.

“We would warn South African parents that this law will harm and rip families apart. Even just an investigation, without prosecution, by the police or social services is hugely traumatic and destabilising to families,” McCoskrie said.

In South Africa, a report titled Violence against Children in SA, released by the Department of Social Development, together with the Department of Women, Children and People with Disabilities and the United Nation’s Children’s Fund, listed 12645 children as victims of common assault in 2012 and 10630 more of assault with intent to do grievous bodily harm.

Readers polled by the Daily Dispatch had mixed reactions:

Lukhanyiso Tena: “How do we expect a world without violence when one of the first lessons a child receives is, if someone acts in a way that you disapprove of, to use physical harm to force them to act the way you want them to?

“Beating a child will not teach a child to refrain from certain conduct, it will just teach them how to hide that conduct from the parent, whereas talking and listening to the child might yield different results.”

Brenda Strachan: “I got a good spanking as a child when the need arose and I’m just fine and well- disciplined because of it. There’s a difference between abuse and good, old-fashioned discipline.

Humaira Islaam: “My kids are all grown up now they got a beating on their bums when they misbehaved or acted with disrespect. Today ... they respect their elders, work hard in their homes and treat their other halves with respect and love.

“Kids today don’t know the meaning of respect ... The government should mind its own business and keep its nose out of what happens in private homes.” —

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