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

• Jurisdiction: South Africa
• Author: Prinslean Mahery
• Date: 16 August 2019
• Published date: 16 August 2019
• Pages: 124-145

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

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