Most of us grew up in households where punishment is a morally accepted way in which children are taught right from wrong.
Extensive studies have shown that on average, children in their teen years experience some form of abuse either at home or at school.
Defined by the World Health Organisation, “physical abuse” is the intentional use of physical force against a child that results or has high likelihood of resulting in harm to the child’s health, survival, development or dignity.
It was in the case Freedom of Religion South Africa v Constitutional Development and others [2019] ZA CC 34 where Chief Justice Mogoeng Mogoeng ruled that spanking your child is illegal, even at home.
He said parents’ entitlement to chastise children moderately and reasonably had been used as an escape route from prosecution or conviction. After this ruling, many had to reflect on their ways of discipline.
The ruling derived from YG vs State [2017] ZAGP; 2018(1) GJ, where a father allegedly assaulted his 13-year-old son as he was under the impression that the son was watching pornography on a phone. His reason behind the atrocious act was solely because his religion did not permit his son’s act.
Medical reports proved that the child sustained brutal injuries from the incident. The court held that where it was stated that physical force employed must have been harsh and out bona fide for disciplinary purposes, but the method and extent of the force falls to the discretion of the parent, of course, that is not excessive.
One would also ask the question: Does scolding your child amount to abuse? Most parents are of the view, and I am inclined to agree, that if scolding does not cause grievous bodily harm, a little smack on the hand will do no harm. The enforceability of Mogoeng’s judgment will depend on child abuse cases being reported.
Judges will have the discretion to determine the appropriate conviction and sentencing depending on the merits of the matter.
Section 18(2)(a) of the Children’s Act 38 of 2008 provides that a person’s parental responsibilities and rights to a child are to provide care for the child. Most parents use discipline as an excuse to abuse their children.
A child needs to be disciplined in a manner that will not cause harm, but make them aware that their conduct or behaviour is unacceptable.
The psychological effects of exposing children to abuse affects children from a young age. There is a great need for us to break the generational cycle of chastisement of our children by finding other less harmful ways of disciplining them.
Legally this contentious issue must be addressed by our courts, safeguarding the interest and rights of children at all times.
Article compiled by Ruth Maitisa, candidate attorney at Lagarto Inc Attorneys. Contact them on 011 568 9326.
