An ‘important purpose of section 34 [of the Constitution] is to guarantee the protection of the judicial process to persons who have disputes that can be resolved by law’ and that the right of access to court is ‘foundational to the stability of an orderly society. It ensures the peaceful, regulated and institutionalised mechanisms to resolve disputes, without resorting to self-help. The right of access to court is a bulwark against vigilantism, and the chaos and anarchy which it causes. Construed in this context of the rule of law and the principle against self-help in particular, access to court is indeed of cardinal importance’.The right guaranteed s34 would be rendered meaningless if court orders could be ignored with impunity:the underlying purposes of the right — and particularly that of avoidance of self-help — would be undermined if litigants could decide which orders they wished to obey and which they wished to ignore.
When the National Assembly passes the Children’s Amendment Bill in the coming weeks, many parents will instantly become criminals. This is because the Bill outlaws all forms of corporal punishment against children – including corporal punishment by parents of their children.
Many South African parents use corporal punishment as a form of discipline, which means that many parents will now become liable for conviction on charges of assault. An aggrieved child would be able to lay a charge of assault with the Police who will then have to investigate the charges against the parent.
Of course an ordinary person who hits another person will usually be guilty of assault. However, until now the common law allowed parents to hit their children as long as this did not go beyond “reasonable chastisement”. The Bill now scraps that exception.
I personally believe that parents should not hit their children – and neither should they cut off part of their child’s penis as part of a bizarre religious ritual, for that matter. It is barbaric and cruel and can scar someone forever. (I also do not have any children that will drive me to extreme violence so it is easy for me to talk.)
Section 12 of the Constitution also states that ever person has the right not to be treated or punished in a cruel, inhuman or degrading way, and the right to security in and control over their body. The state therefore has a duty to try and stop parents from assaulting their children.
But I do not think the introduction of a complete ban on corporal punishment at this stage is a wise idea. One does not have to be a rocket scientist to know that this amendment is not going to stop parents from hitting their children. It is also obvious that the members of an overworked and under-qualified police force are not going to pursue cases of assault against parents unless that assault goes beyond “reasonable chastisement”.
This means that the legislature is passing a law that everyone knows cannot and will not be enforced. It is also a law that will not actually change the way parents treat their children. The legislature recognises this because section 139(5) of the Bill states that the Department of Social Development must take all reasonable steps to ensure that education and awareness-raising programmes concerning the effect of the ban are implemented throughout the Republic.
Of course we know and the legislature knows that “reasonable steps” are going to turn into no steps at all.
Why implement the ban then? All it will do is further to erode respect for the Rule of Law. Unfortunately as a society, we are still rather primitive and very far away from accepting that hitting children is a bad idea. When a law now criminalises corporal punishment by parents, those parents are going to start thinking that the law is an ass and need not be obeyed.
This is the typical reaction of a weak state. Because it feels the cannot really change the way people treat their children, they pass a law they know will not be obeyed and then they can feel better about the problem without having to do the real work needed for social change.