What is the Law on Corporal Punishment?
A difference in age is often one of the biggest influencers when it comes to our various worldviews. Try as they might, the older generations just can’t seem to understand the thinking that drives kids these days. Sadly, the disconnect is mutual, and young people are similarly bewildered by the actions and ideas of older individuals. One area of life where this divide becomes most notable is when it concerns the topic of corporal punishment. For a lot of older South Africans, getting spanked by their parents or caned by teachers was just another part of life. To many younger people though, such treatment is seen as completely unacceptable and barbaric. But what does the law say? Is corporal punishment still legal? And are you still allowed to spank your kids? What is the Law on Corporal Punishment?
As of the 18th of September 2019, all forms of corporal punishment in South Africa have been ruled unconstitutional and are thus prohibited.
In other words, hitting children is now illegal, whether it is done by a teacher at school or by a parent at home.
Over the past few decades, South Africa, and most other countries, have moved toward making all forms of corporal punishment illegal. The timeline for these changes proceeds as follows –
Abolishment of Corporal Punishment in South Africa
| (1995) Judicial Corporal Punishment for Juveniles Ruled Unconstitutional – A landmark case dealing with the caning of 6 juveniles was deemed as unconstitutional by South Africa’s constitutional court. Before this point, corporal punishment at schools was frequently used to discipline unruly students, however, the new ruling considered such punishments to be unacceptable. (1997) All Judicial Corporal Punishment is Abolished – A new act abolished all judicial corporal punishment regardless of age. Because judicial corporal punishment refers to corporal punishment that results from a formal court sentence, corporal punishment of children in the home was still allowed for reasonable corrective purposes. (2019) All Forms of Corporal Punishment are Deemed Unconstitutional – For many years, corporal punishment within the home (ie, hitting or spanking children) was seen as acceptable so long as it was done for the purposes of ‘reasonable and moderate chastisement’. However, in 2019, the Constitutional Court found that this defence was unconstitutional and that children could no longer be subjected to corporal punishment even when it takes the form of discipline from a parent. |
What does the Law say about Corporal Punishment?
To quickly summarize the information above – All corporal punishment is considered to be illegal in South Africa. This ranges from caning students at school to spanking children at home…
…and obviously, it’s not just kids. You can’t hit adults either.
What kind of Corporal Punishment is Legal?
There are no legal forms of corporal punishment in South Africa. Court rulings have noted that Section 12(1)(c) of the constitution guarantees the right to freedom ‘from all forms of violence from either public or private sources’.
Any form of corporal punishment would violate this right and would thus be seen as unconstitutional and illegal.
Is Corporal Punishment Allowed in Schools?
No, it is not. The practise of corporal punishment for juveniles has been illegal in South Africa since 1995 with the complete abolishment of judicial corporal punishment being ratified in 1997.
What are the Penalties for Corporal Punishment in Schools?
Teachers who have been found guilty of misconduct can face various consequences depending on the severity of the case.
Usually, misconduct cases are split into two categories, each with its own set of penalties –
- Misconduct – This includes things like assault, attempted assault, victimisation, and intimidation, and may result in certain sanctions ranging from written warnings to suspension or dismissal.
- Serious Misconduct – These cases involve incidents of serious assault with the intention to cause grievous bodily harm. Such cases will result in dismissal.
In some cases, the incident may also qualify as a criminal offence and can include separate, legal proceedings.
Can I Smack my Child on the Bottom?
Technically speaking, it is illegal to physically punish your child regardless of how it is done or of the extent and severity of the punishment.
Is it illegal to Smack your Child on the Bum?
Yes, it is. The recent rulings from the constitutional court have made such punishments illegal even when they are performed under the premise of a ‘reasonable and moderate chastisement’.
Is there a Duty to Report Instances of Child Abuse?
In many cases, yes, there is. The Children’s Act 38 of 2005 identifies the various individuals who have a duty to report instances of physical abuse, sexual abuse, or neglect, whenever they have reasonable grounds to assume that such an act has taken place.
Individuals with a duty to report these occurrences include, but are not limited to, –
- Teachers
- Doctors
- Social Workers
- Ministers of Religion
- Traditional Leaders
- Legal Practitioners
- Etc
If the report is made in good faith, the reporter cannot be held liable for civil action on the basis of the report.
Religious Counter-arguments
Some groups have pointed out that this new ruling to abolish all forms of corporal punishment directly opposes certain mainstream religious viewpoints on the matter.
Various believers throughout the country interpret certain scriptures from their holy texts as endorsements of corporal punishment. Famously, Proverbs 13:24 says that “He who spares the rod hates his son”.
This fact has raised concerns that the legislative apparatus is on a direct collision course with religious South Africans who will need to either adhere to the law of the land or follow their personal religious prescripts.
Can Teachers Report Parents for Child Abuse?
Not only is it legal for teachers to report suspected instances of child abuse, they actually have a statutory responsibility to do so.
Teachers who have reasonable grounds to suspect that physical abuse, sexual abuse, or neglect is taking place, should immediately contact a child protection organisation and the South African Police Service.
What are Reasonable Grounds?
The term “Reasonable Grounds” refers to an evidentiary threshold that provides the individual in question with adequate reason/justification to take a certain form of action.
When dealing with cases such as these, courts will usually apply a ‘reasonable person test’ to the scenario.
Simply put, the court will substitute the individual who made the report with a hypothetical ‘reasonable person’. If this reasonable person comes to the same conclusion when exposed to the same facts, the original person will be deemed as having had reasonable grounds to make their report.
In Conclusion – What is the Law on Corporal Punishment in South Africa?
Over the past few decades, South Africa has taken steps to gradually make corporal punishment illegal in all its forms.
This includes judicial corporal punishment (corporal punishment that is sanctioned by a court), corporal punishment of students by teachers (caning, etc), and corporal punishment carried out at home by parents (spanking, hitting, etc).
Simply put, any type of physical punishment carried out against a child, whether done by a parent or a teacher, is considered to be both unconstitutional and illegal in South Africa.
Until 2019, it was still legal for parents to physically discipline their children as long as it was conducted in the form of ‘reasonable and moderate chastisement’, however, the new legislation has now made this behaviour illegal as well.
Many people have argued that this ruling is at odds with their religious beliefs, many of which state that children should be physically punished to instil qualities of discipline and good behaviour.
Teachers who engage in corporal punishment of their students can be found guilty of misconduct and may receive penalties ranging from warnings to suspensions, and even dismissal. If the misconduct amounts to a criminal offence, separate legal proceedings may also be undertaken.
Teachers, as well as certain other individuals, also have a legal obligation to report suspected instances of physical abuse, sexual abuse, or neglect, so long as they have reasonable grounds to assume that it has taken place. They will not be held liable to civil action so long as they are determined to have been acting in good faith.
Disclaimer LAW101: All of our posts are for research purposes only. Law 101 aims to assist its readers with useful information on the laws of our country that can guide you to make decisions in line with the South African Governmental Laws currently in place. Although our posts cite the constitution in many instances, they are intended to assist readers who are looking to expand their knowledge of the law. Should you require specific legal advice we advise you to get in touch with a qualified legal expert.
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