By Michael Swain, Executive Director of FOR SA
The recent judgment of the Constitutional Court in the case of FOR SA vs Minister of Justice andConstitutional Development and Others (the so-called “spanking case”) has thepotential to bring about a seismic shift in how South African society willfunction in the future.
The crux of this case was whether or not parents were able to rely onthe common law defence of “reasonable and moderate chastisement”. This defence hashistorically protected parents against a charge of assault if they use reasonableand moderate physical correction to discipline their children. In terms of the Constitutional Court’sjudgment, “chastisement does by its verynature entail the use of force or a measure of violence”. As such, it iscontrary to s 12(1)(c) of the Constitution which guarantees the right to befree from all forms of violence from either public or private sources, andtherefore unconstitutional and illegal.
As a consequence of the judgment, any parent who (for whatever reason)continues to use even the mildest form of physical correction on their child,will face the real possibility of being charged with the crime of assault and(at minimum) face the likelihood of having a life-time criminal record with allthe negative consequences in terms of employment, travel etc. that thisentails.
The Court’s reasoning
In coming to the conclusion which it did, the Court examined the dictionary meaning of violence, and stated that violence is “behaviour involving physical force intended to hurt, damage or kill someone or something”. In this regard also, the Court found “violence is not so much about the manner and extent of the application of the force as it is about the mere exertion of some force or the threat thereof.” The Court then concluded that “all forms” (referring to s 12(1)(c) of the Constitution) “is so all-encompassing that its reach or purpose seems to leave no form of violence or application of force to the body of another person out of the equation.”
So where to from here? While theConstitutional Court evidently believed that it was correctly interpreting theConstitution and settling the issue once and for all, one of the most interestingaspects of law is that it often has consequences which produce unforeseeneffects which have impact well beyond its original and intended scope. Once a principle or precedent is set, it musthave general application and you cannot just cherry-pick to suit personal,religious or even societal preferences.
The judgment made it crystal clear that parents cannot exert any form ofphysical violence on their children. Equally, children are not able, by virtue of their age or legal capacity,to agree to any violence being perpetrated against them. In light of thesweeping application of ensuring that children are protected from “all forms ofviolence”, it is worthwhile examining other areas where children are currentlysubjected to violence (as interpreted by the Court) which hitherto have beenseen - like reasonable and moderate chastisement - as both normal andacceptable.
Male circumcision
One immediate implication of the judgment is its application to male circumcision,where deeply held religious convictions regard this practice as an essential expressionof faith. Male circumcision (“Khitan”)is widespread in Islam and accepted as established practice by all Islamicschools of jurisprudence. It is considered a sign of belonging to the widerIslamic community. Although the Qur'an itself does not mention circumcisionexplicitly in any verse, it has been a religious custom from the beginning ofIslam. There is no set age when circumcision should take place, and it can varyfrom as early as on the seventh day after birth and as late as at thecommencement of puberty.
Circumcision in the Jewish faith is even more integral and is aninitiation rite for Jewish new-born babies, which usually takes place in aceremony called a “Brit” (or “Bris”) “milah” (covenant of circumcision) witnessedby family and community members. Theritual is an ancient practice that has been carried out by Jewish parents formore than 3,000 years. According to the Torah (Genesis 17: 9-14), Abraham wascommanded by God to circumcise himself, all male members of his household, hisdescendants and slaves in an everlasting covenant. Under Jewish law, failure to follow thecommandment given to Abraham incurs the penalty of “karet” (being cut off fromthe rest of the community of God). The Torah (Genesis 16:14) clearly statesthat: "Any uncircumcised male who is not circumcised in the flesh of hisforeskin shall be cut off from his people; he has broken my covenant."
Another area where ritual circumcision is very common is in traditional Africanculture. “Ulwaluko” is the word used to describe traditional circumcision andinitiation into manhood. It is anancient initiation rite practised (though not exclusively) by the amaXhosa. Amale who has not undergone initiation is referred to as “inkwenkwe” (boy),regardless of his age, and is not allowed to take part in male activities suchas tribal meetings. It is important tonote that while there have been interventions as a consequence of thedisturbing numbers of deaths and deformities that result from the circumcision ceremony,it is still a widespread practice.
In terms of s 12(8) of the Children’s Act of 2005, boys under 16 yearsof age may not be circumcised, except for religious purposes or medical reasonson recommendation of a medical practitioner. Boys over 16 years of age may becircumcised, if they consent thereto after proper counselling. In terms of s12(10), every boy (depending on their age, maturity and stage of development)has the right to refuse circumcision however.
Although there are well documented and beneficial effects ofcircumcision in terms of personal hygiene, it is evident that not allcircumcisions are performed for that purpose alone. Given that this ritual involves the actualcutting of the flesh of a child (i.e. physical force intended to hurt thechild), it is difficult to see that there can be any constitutional reason toallow this “violence” – particularly not for religious reasons - to continue inits current form. As such, it ispossible that all forms of male child circumcision should come under review andonly those performed for bona fidemedical or hygienic purposes should be permitted.
Sport
Taken to its logical conclusion, the Constitutional Court judgment andparticularly its definition of violence, may even rule out certain sports inthe context of schools. This may seem ludicrous, but is a good example of theunforeseen and unintended consequences of a judgment such as the present.
Rugby is the prime example because it is a high-impact collision sportin which players have to exert extreme force in order to acquire and maintainpossession of the ball. Injuries are frequent. The probability of a player being injured in a season can be as high as90% in some studies, depending on the definition used. The majority ofinjuries, at least 75%, occur during contact or collision, such as the tackleand the scrum. Two-thirds of all concussions occur during the tackle, which is alsocommon in the children’s game where traumatic and repetitive brain injury is aroutine occurrence. Cricket as a schoolsport must also come under scrutiny, given that a hard projectile is hurled athigh speed by the bowler at the batsman. Injuries are frequent and there have also been some international, highprofile deaths such as South African Darryn Randall, who was struck on the sideof the head while attempting a pull shot during a domestic match. It is difficult, if not impossible to parseor redefine the Court’s judgment to permit this high level of violence tocontinue to be allowed to continue in the South African school system.
As a consequence of the Constitutional Court judgment and its definitionof violence and the paramount consideration to ensure that children areprotected from any forms thereof, South Africa as a society is now heading intounchartered waters. While it is – andalways has been – unlawful to inflict or permit any form of what was formerlyconsidered to be violence against a child, the broadened definition and the removalof any parental input or involvement, may well have effects which go far beyondthe original scope of “reasonable and moderate chastisement”. Only time will tell.
[author] [author_info]Michael was raised in England, graduating from the University of Bristol with an honours degree in Law before immigrating to South Africa in 1983. He has been a successful businessman as well as having spent over 30 years in ministry in South Africa, Europe and the USA. He serves as the Executive Director of Freedom of Religion South Africa (FOR SA).[/author_info] [/author]
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FOR SA currently has a support base of religious leaders and individuals representing +/- 6 million people across a broad spectrum of churches, organisations, denominations and faith groups in South Africa.
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