Application for leave to appeal to the Constitutional Court

*Update (as at 27 November 2017): Subsequent to the filing of the application for leave to appeal with the Supreme Court of Appeal (SCA) in Bloemfontein, the SCA advised that the application should be referred directly to the Constitutional Court. In the circumstances, FOR SA will shortly be filing our application with the Constitutional Court instead.[embed]https://youtu.be/jZsolC-FoC4[/embed]

Background

As you may be aware, the High Court of Johannesburg recently delivered a judgment which abolished the historic defense of “reasonable and moderate chastisement”. This has been used by parents for generations as a defense against an assault charge for (reasonably and moderately) disciplining their child/ren. Please note that this was never a defense to violence and abuse against child/ren, which is clearly a criminal matter where the State has a duty to intervene.There is an obvious and fundamental difference, however, between moderate chastisement by a parent motivated by love and in the best interest of their child/ren on the one hand, and physical violence or abuse on the other hand.Following this judgment, there has been a massive public outcry – not only from religious parents, but also from non-religious parents whose parental rights and authority have now been significantly diminished.FOR SA, who was initially invited by the Court to be a “Friend of the Court” in the matter, is the only party left in the case with the opportunity to appeal this judgment. After careful consideration and the unanimous approval of our leadership team (Michael Cassidy (AE); Moss Ntlha (TEASA); Barry Isaacs (CCC) and Andrew Selley (JoshGen/Four12), we believe it necessary to pursue this legal recourse and have subsequently filed for leave to appeal. We have been advised that this appeal will be directly to the Constitution Court.Note: FOR SA’s appeal only relates to the constitutional issue considered by the Court [i.e.] whether reasonable and moderate chastisement is congruent with the Constitution. The appeal specifically does not concern the merits of whether the father’s appeal against his conviction by the Magistrate’s Court on charges of common assault should be upheld.

Here are the main reasons FOR SA believes that an appeal is important:

1. The judgment circumvents normal legislative process, which is especially important to follow since this decision affects so many citizens.

The judgment circumvents the normal legislative process, which is especially important to follow since this decision affects so many citizens. While High Courts have a constitutional obligation to develop the common law in line with our Constitution, FOR SA’s concern is that the judgment is an over-reach and effectively usurps the power of Parliament, which has the primary responsibility of law reform. In this regard, we point out that when deliberating the Children’s Act in 2005, Parliament, as the democratically elected representatives of the people of South Africa, made a deliberate and considered decision to retain the right of parents to reasonably and moderately chastise their children as part of SA law. However, in this case and with a stroke of a pen, two judges have now effectively overruled Parliament’s decision and circumvented the legislative process.

2. Religious rights curtailed.

Freedom of religion, which is granted to all South Africans by section 15 of our Constitution, is doctrinally neutral. It is given to protect the right of every citizen to believe and to live out their faith, before God and in obedience to the law of the land – without fear of persecution or retribution.Christian parents in particular differ in their interpretation of the Scriptures (most of which are found in the Book of Proverbs) which focus on the discipline of children by their parents. Some parents, over centuries, have believed that these Scriptures instruct (or at the very least, permit) moderate and reasonable physical chastisement, usually as a last resort but nevertheless as part of their responsibility to raise their children. Others interpret this as using other forms of discipline to encourage obedience and “good behaviour” from their children.A concerning element of this case is that two judges of a provincial division of the High Court have now effectively ruled, for the whole of South Africa, that “it is permissible to require religious parents who believe in corporal punishment to be expected to obey the secular laws, rather than permitting them to place their religious beliefs above [what in the view of the Judge is] the best interests of their children.”An interpretation of Scripture which is held by many has therefore been declared invalid and if parents continue to follow their conscience, they will now be committing a crime. This sets an unfortunate and potentially dangerous precedent since religious rights have been curtailed and limited by the judgment.

3. The rights of children have been ruled to trump parental and religious rights, which sets a dangerous precedent.

While children most certainly have constitutional rights and these rights must be protected, there is a clear recognition in law that a child does NOT have equal rights to an adult in all circumstances – hence the age of consent for sexual activity, the age of voting, laws against drinking and smoking before a certain age, etc. This case has set a precedent where children’s rights have trumped parental and religious rights and this may be extended in future to other areas. For example, in the context of transgender issues, it is quite foreseeable that this case will be used as authority to insist that parental caution and concern be overruled in favour of a young child’s desire for hormone suppressant treatment and/or gender reassignment surgery.

4. More parenting tools are needed, not fewer.

FOR SA is not for, or against, spanking – but we do support the rights of parents to decide for themselves, according to their moral or religious convictions, how to discipline their child/ren. For many parents, reasonable and moderate spanking – at times, where needed, always in love – is ONE of the methods which is used to raise responsible children who know the difference between right and wrong, but not the only method that parents should employ. We are in favour of more “training tools”, not fewer.Given that the latest statistics show that over 30 million South Africans live on less that R1,000 per month and in small (often over-crowded) accommodation, there may be no (or very few) alternatives to reasonable and moderate chastisement for parents in these communities. There may well be no “naughty corner” in a rural dwelling, and what “privileges” do you take away from children who have none?

5. Criminalising parents is not in the best interests of the family and child/ren.

There is a large body of credible social science that shows that mild corporal punishment is not harmful for children, and may even be beneficial. This was ignored by the Court, who made a decision that any form of chastisement in all circumstances – regardless of how light, or well-intended – to be detrimental and harmful to children. As such, any parent who uses any form of physical chastisement or restraint on their child, can be charged with the criminal offence of assault, with the following consequences – which may well not be in the best interests of the child:

• Any report of an assault will likely lead to a highly disruptive investigation, which is certain to strain family dynamics.
• If found guilty, the parent will have a criminal record for assault of a minor (i.e. child abuse). This is a serious crime, regardless of how minor the “assault” may have been. It is often grounds for the automatic termination of a contract of employment, sponsorship etc. It will certainly count against the person when he/she applies for future employment since this a background check is often a requirement. The resulting financial hardship to the family may have serious long-term disadvantages to the child.
• A criminal record is a lifetime inhibitor for things like visa applications for travel purposes, which can also have detrimental consequences from an employment perspective.
• There is the potential for children to “blackmail” their parents and/or for one spouse to use this against the other, especially in divorce proceedings.

6. The experience of New Zealand shows that this decision is likely to have detrimental results.

It is interesting to note the results from recent surveys in New Zealand, where the “reasonable and moderate chastisement” defense was removed from parents in 2007. These surveys found that:

• a third of parents of younger children say that their children have threatened to report them if they were smacked.
• one in four parents of younger children say that they have less confidence when dealing with unacceptable behaviour from their children.
• Police statistics show that not a single social indicator relating to the abuse of children that had shown significant or sustained improvement since the passing of the law:
• there has been a 136% increase in physical abuse
• 43% increase in sexual abuse
• 45% increase in neglect or ill-treatment of children.

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