Pursuing the Crafting of a Legislative Ban on Corporal Punishment in the Home

JurisdictionSouth Africa
AuthorPrinslean Mahery
Date16 August 2019
Citation(2018) 29 Stell LR 124
Published date16 August 2019
Pages124-145
124
PURSUING THE CRAFTING OF A LEGISLATIVE
BAN ON CORPORAL PUNISHMENT IN THE
HOME
Pr ns ean Mahery
B M
ec urer a he Un vers y of he W wa ersrand
1 Introduct ion
The global move to prohibit the use of corporal punishment in homes
started in 1979 with Sweden being the rst country to enact s uch a law.1
This movement has now gained considerable inter national backing with (to
date) 53 countries in the world having express prohibitions against the use of
physical punishment on a child in all settings includi ng the home.2 The Un ited
Nations (“UN”) Commit tee on the Rights of the Child (the “Commit tee”) has
continuously reque sted states to introduce legislation t hat prohibits corporal
punishment in the home3 a nd to ensure that such laws are effectively enforced.
In its concluding observations to South Afr ica’s I nitial Count ry Report in
2000 the committee recommended that South Africa “ta ke effective measures
to prohibit by law the use of corporal pu nishment in the fa mily and, in this
context, examine the exp erience of other countr ies that have already enact ed
similar legislation”.4 The rst att empt to ban corporal punishment in South
African homes proved un successful when the Children’s Bill was being
drafted. A clause in the Bill5 which expres sly outlawed corporal punish ment
never ma de it t o the nal stages of law reform, culmi nating in the cur rent
Children’s Act 38 of 2005 (“Childr en’s Act”). However, in recent times, the
1 For an exploration of t he interna tional movement tow ards a ban of cor poral puni shment in the ho me
see, R Smith “‘Hands-Of f Parent ing?’ – Towards a reform of the defence of reason able chast isement
in the UK” (2004) Ch ild and Family Law Quarter ly 261 266-267 For a histor ical account of the us e of
corporal p unishment on chi ldren see, A McGil livray “He’ll lear n it on his body’: Disciplin ing childhood
in Canadia n Law” (1997) 5 Internat ional Journal of Chil dren’s Rights 193
2 Global initiative to End All Corpo ral Pu nishment of Ch ildren “Countdown to universal prohibition”
(unda ted) End Corporal Punishment
html> (accesse d 09-11-2017)
3 See for example conclud ing observatio ns made to other Afr ican countrie s: The Committee on t he Rights
of t he Ch ild: Co ncluding observations to Algeria UN Doc CRC/C/DZA/C O/3-4 (29 May – 15 June
2012) The Committee on the Rights of the Child: Concluding observations to Angola UN Doc CRC/C/
AGO/C0/2-4 (19 Octob er 2010) The Committ ee on the Righ ts of the Child: Concluding obse rvations to
Botswana UN Doc CRC/C/15/Add 242 (3 November 2004) The Commit tee on the Rights of t he Child:
Concluding observat ions to Cameroo n UN Doc CRC/C/CMR/CO/2 (18 Februa ry 2010) In 200 6, the
Committe e noted tha t it had at that stage already re commended 130 states arou nd the world t o prohibit
corporal punishment in all sett ings See, Com mittee on the Rights of the Child Gene ral comment No. 8
(2006): The Righ t of the Chil d to Protecti on from Cor poral Punishme nt and Othe r Cruel or Degrading
Forms of Punish ment (Arts. 19; 28, Para. 2; and 37, inter alia) 2 March 20 07 UN Doc CRC/C/GC/8
4 Committe e on the Rights of t he Child: conclud ing observatio ns to South Afr ica UN Doc CRC/C/15/Add
(22 February 2 000)
5 S 139 of the Children’s Amend ment Bill [B19–B 2006]
(2018) 29 Stell LR 124
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South African government has indicated its commitme nt to revisit the banning
of corporal punish ment in the home.
In 2014 Sout h Af rica’s Minister of Social Development, Ms Bathabile
Dlamini, announced a plan to “forge ahead with banni ng corporal
punishment even in the home e nvironment”.6 In the latest count ry repor ts to
the Commit tee on the Rights of t he Child7 and the Comm ittee of Experts on
the Rights and Welfare of the Child,8 the National Depa rtment of Women,
Children, Youth and Person s with Disabilities (as it then wa s) noted that
“[t]he DSD is revising the Children’s Act, and in the process will revisit the
issue of ba nning corporal punishment in the home.9 Upon reviewing South
Africa’s country report, the Comm ittee on the Rights of t he Child requested
South Africa to “[e]xpedite the adoption of legislation to prohibit corporal
punishment in the home ….”.10
It therefore appe ars that South Africa is once agai n consideri ng tak ing
steps to outlaw the use of corporal punishment by caregivers in the home.11
This article explores considerations that would inuence the legislatures’
formulation of a ban on corpora l punishment in the home. The cons titutionality
of the use of corporal punishment by caregivers and the arguments in favour or
against banni ng corporal punishment in homes has been elaborately explored
elsewhere12 and is therefore not the main focus of this article. The ar ticle
centres on crafti ng leg islative provisions to outlaw corporal punish ment.
What is ultimately im agined her e is that our legislature has taken a decision
to outlaw corporal pun ishment in homes, as per t he recommendations of the
Committee and the South African Huma n Rights Comm ission, and that the
law drafting process is now under way. Constitutional aspects on the issue
of corporal punish ment are therefore only considered i n the context of this
imagined legislative drafting process. I n assessing how a ban on c orporal
punishment in the home could be framed I will start by exploring the extent of
the prohibition followed by a discussion of national and inter national lessons
6 Depart ment of Social Development Media Statement (0 3- 06- 2014)
7 Depart ment of Wome n, Youth, C hildren a nd People with Disa bility “S outh Afr ica’s Periodic Country
Report on the United Nations Convention on the Rights of the Child (UNCRC) Repor ting Period:
January 1998-Ap ril 2013” (2013) Dullah Om ar Institute for Co nstitutiona l Law, Governance a nd Human
Rights
uncrc-rep ort-15-public-version-2 pd f> (accessed 09 -11-2017)
8 Depart ment of Women, Childre n and People with Disability “Sout h Af rica’s Init ial Cou ntry Report
on the African Charter on the Rights and Welfare of the Child Reporti ng Period: January 2000-April
2013” (2013) Dullah O mar Institu te for Constitu tional Law, Gove rnance and H uman Rights p://
dullahomarinstit ute org za/women-and-democracy/report ing-on-childrens-rights/sa-govt-afr ican-
union-rep ort-9-public-versio n pdf> (accesse d 09-11-2017)
9 See the Afr ican Charter Re port para 145 and UNCRC Rep ort para 134
10 Committ ee on the R ights of the Child: Conclud ing observat ions on the s econd period ic report of South
Africa U N Doc CRC/C/ZAF/CO/2 (30 Septemb er 2016) para 34(a)
11 In Sou th Afric a “corpora l punishme nt remain s widesprea d, with nearly 58% of parents using physic al
punishme nt and 33% usin g a belt or stick” See L Lake & L Jamieson “Usin g a child r ights approac h to
strength en prevention of violence agai nst children” 2016 (106) South African Me dical Journal 116 8 1168
12 See for example A Skelton “S v Williams: A springboard for further debate about corporal pu nishment”
(2015) Acta Juridica 336 J Burchell Pri nciples of Criminal La w 5 ed (2016) 197; South Afr ican Human
Rights Commis sion Invest igative Report; Canadia n Foundation fo r Children, Youth a nd the Law v
Canada (Attorney General) SCR 76 2004 SCC 4
CRAFTING A LEGISLATIVE BAN ON CORPORAL PUNISHMENT
125
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