Quote of the week

Regard must be had to the higher standard of conduct expected from public officials, and the number of falsehoods that have been put forward by the Public Protector in the course of the litigation.  This conduct included the numerous “misstatements”, like misrepresenting, under oath, her reliance on evidence of economic experts in drawing up the report, failing to provide a complete record, ordered and indexed, so that the contents thereof could be determined, failing to disclose material meetings and then obfuscating the reasons for them and the reasons why they had not been previously disclosed, and generally failing to provide the court with a frank and candid account of her conduct in preparing the report. The punitive aspect of the costs order therefore stands.

KHAMPEPE J and THERON J
Public Protector v South African Reserve Bank (CCT107/18) [2019] ZACC 29 (22 July 2019)
5 June 2007

Why hitting a child is not like smoking

Should Parliament only adopt legislation if it knows the legislation would be enforced successfully, or are there other benefits to the adoption of legislation beyond immediate enforcement?

I am asking because a friend berated me for arguing on this Blog that those parts of the Children’s Amendment Bill banning corporal punishment of children by their parents was a rubbish move on the part of Parliament.

She points out that many people shouted to high heaven when the anti-tobacco legislation was introduced and argued that it would not be enforced, yet most Restaurants now comply and there has been a dramatic change in the public attitude towards smoking – at least amongst the middle classes.

This means that the law can change behaviour – even where it is not perfectly enforced – because new legislation can change the way we look at a specific issue and can thus change the very culture which tolerated the anti-social behaviour in the past. The policing – such as it was – of the anti-tobacco law came from fellow diners and not from the police, but it resulted in most formal restaurants having to comply with the law.

This is a good point. Maybe now that hitting your children will become a criminal offense, you will think twice of hitting those children because the neighbours might not like it and might even report you to the police.

Yet, I am not completely convinced. Unlike with smoking, most parents do not hit their children in public but only in the privacy of their own home. This makes it far less likely that informal public pressure will change the way our society view corporal punishment of children.

What is more likely to happen is for parents to hit the bejeezus out of their children at home, but behave impeccably in public, thus driving the whole thing underground, as it were. The other fear is that – unlike with public smoking – the acceptance of corporal punishment of children is so widespread that the law will have no effect on how others view the matter.

There might well be a communal shrug of the shoulders, accompanied by an exasperated “the-law-is-an-as” roll of the eyes whenever the matter comes up. And that is exactly what one does not want because it breeds contempt for the law more generally. Today that shrug, tomorrow cable theft and the day after that you have become the new Dina Rodriguez.

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