Quote of the week

It is clear that no legitimate objective is advanced by excluding domestic workers from COIDA.  If anything, their exclusion has a significant stigmatising effect which entrenches patterns of disadvantage based on race, sex and gender…. In considering those who are most vulnerable or most in need, a court should take cognisance of those who fall at the intersection of compounded vulnerabilities due to intersecting oppression based on race, sex, gender, class and other grounds.  To allow this form of state-sanctioned inequity goes against the values of our newly constituted society namely human dignity, the achievement of equality and ubuntu.  To exclude this category of individuals from the social security scheme established by COIDA is manifestly unreasonable.

Victor AJ
Mahlangu and Another v Minister of Labour and Others (CCT306/19) [2020] ZACC 24 (19 November 2020)
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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