WITH LITTLE or no debate on the issue in the public sphere, (no Imbizos, lekgotlas nor indabas ) South Africa’s constitutional court delivered yet another major decision. This time making the country the 57th nation in the world to ban child spanking.
That we appear to be moving away from the casual resort to violence towards a regime seemingly based upon peaceful dialogue, openness and problem-solving is obviously to be welcomed (see below). If only discipline and punishment were as simple as sending ones dear child a memo, or informing a potential brat, your own offspring or an abusive parent about the new law.
That the ruling was equally couched within the tinsel baubles and holy sheen of an ongoing debate between those who resort to religious texts to defend their actions and those like me, who do not, is equally bound to be controversial. The decision stems from a case involving the beatings received by a 13-year-old inflicted by his father.
More worrying and irksome, is the manner in which a well-established common law defence of ‘justifiable chastisement’ has been replaced, or so it seems, by the noble rhetoric of ‘positive parenting’ — an effete legalistic notion that will needlessly bring an end to family life — now with the merest domestic squabble under judicial and state scrutiny and child discipline in effect, under the exclusive aegis of the state?
Pundits were moved to play down the implications of a sudden growth in new categories of felony and misdemeanours, for which both parent and child could pay an enormous price, if only to weed out those parents who really do engage in acts of petty assault, and hang-on, didn’t the list of activities which may be construed as common assault just get a lot longer?
Much is being made by a vocal minority, of a ruling which apparently overturns various biblical psalms, who could have guessed?
Think nothing of destroying what little remains of parental privacy and civilian-based discipline — thanks to the religious nutters, that sacred bond between parent and child is, well, no longer so sacrosanct.
The impact of the ruling on privacy in the home, remains unexamined by the media — will private acts regarding child discipline now fall under the purview of the state?
Let’s be open and frank here, as a parent and child-rearer — my daughter Vumani Nina Lewis was born without being spanked by a doctor, in the privacy of our own home. Instead of being assaulted by a medic, she was revived by a midwife, granted air by the judicious use of a simple hand pump. Thus she arrived smiling instead of yelling.
So where is the bar in this matter?
Just about nobody accuses rugby players of assault when they tackle per the rules of rugby, but I fear, doctors will have a harder time persuading patients and the state that they didn’t commit a crime when they applied the Heimlich Manoeuvre, and likewise, parents when they give a slap on the wrist, or a clip to the ear.
Yes, the ruling is a major victory for those wanting freedom from the religious condonation of private violence in the form of beatings, circumcision and the like, and a major setback for those who have always relied upon secular arguments to justify spanking.
Like many South Africans I was brought up with corporal punishment in school, and the threat of beatings with a belt, applied by my own mother.
Canadian guidelines for instance allow spanking under a number of conditions including corrective force (or physical punishment) that is minor or “transitory and trifling” in nature; no physical punishment on children younger than two or older than 12 …
Corporal punishment, i.e physical punishment inflicted by the state in the form of caning, went the way of the Dodo after 1994, but justifiable chastisement lived on. In an effort to appear trendy and with-it, the common-law defence of ‘reasonable and moderate parental chastisement’ has been ‘rendered constitutionally indefensible’ by the nation’s moral guardians. One would have thought that the defence would have been restricted to certain categories of chastisement, but no.
Henceforth, all children will be free to accuse their parents of assault for the merest reprimand, while parents will suffer needlessly the consequences of vexatious and trivial allegations of unlawful aggression.
What can be done to rectify the overreach of South Africa’s juristocracy? The law-lords who appear want to invade our living rooms at the same time they move for privacy in drug use and the onward march of progress in every arena, except when it comes to equality before the law for TRC victims?
How to limit the effect of every case before the ConCourt turning into a day vs night, Roe v Wade moment?
At first one should add that the state itself is an unfit parent. The republic and its judges have not disavowed themselves of the need to discipline and punish. Instead they have reserved this power for themselves. You may read my published criticism here.
The case appears to have revolved around religious justifications for chastisement, not secular and civil arguments, and it does not immediately follow that each and every justification is henceforth, null and void.
Citizens, including children will still be subject to a system of justice which is anything but modern, extremely expensive, time-consuming, wasteful and whose penal codes inevitably result in obscure interpretations of law on the one hand, and overcrowded prisons on the other.
Household discipline, parental authority, the right to chastise, call it what you want, necessarily keeps children away from the criminal justice system.
As Michel Foucault the author of Discipline and Punishment, would have put it: “Where there is power, there is resistance.”
In this arena, expect resistance.
The judgement took just five minutes. The Constitutional Court dismissed a request by 270 injured and arrested mineworkers from Marikana’s Lonmin mine for leave to appeal for funding from the state for their legal representation at the Farlam Commission of Inquiry. The mineworkers were not even given an opportunity to state their case. Instead the court chose to duck the issue and based its judgment on a technicality. The Constitutional Court, the highest court in the land, ruled that it was not competent to deal with a matter being handled by a lower court.
This was a lost opportunity for the Constitutional Court to level the playing field and to affirm the new human rights culture that this society is committed to building after the brutality of apartheid. It was also an insult to the workers who died, and all other victims of police brutality and state repression in the history of South Africa. The reality is, each day that the commission sits, these mineworkers face a David and Goliath battle against a state, a police force and Lonmin, all of whom possess formidable funds to employ an army of top lawyers and researchers.
The spirit of callousness against the miners who were attacked by police on the 16th August doesn’t stop with the withholding of state funds to meet their legal representation. The North West ANC failed to attend the highly successful commemoration rally in Marikana last Friday (16th August). This was an opportunity to show their respect to the families of all those who had died and the injured and arrested survivors of the Marikana massacre. Their refusal to participate was shocking even to the national ANC, who condemned their action in a press statement the following day. The commemoration was planned as a day of unity and healing and a call to continue the fight for a living wage. Many political parties shared a platform to give messages of support to the miners and their families. The NUM was invited to share this platform. They also refused to attend, despite the fact that at the time of the massacre, many who lost their lives were in fact NUM members.
A year on from the massacre, there has been no justice, no move by mining companies to address the issue of a living wage and now to add insult to injury, miners at Anglo Platinum mines face the company’s decision to go ahead with the retrenchment of around 7000 jobs. Many from Anglo Platinum, as did those from Implats, joined their comrades from Lonmin at the commemoration on the 16th August. It is no wonder that workers across the platinum sector are beginning to speak in one voice in combining the demand for a living wage with those of justice against state brutality and in defence of jobs.
The pursuit of legal and peaceful channels by the miners in their quest for justice for those who were arrested, injured and killed has been a futile exercise. The workers clearly cannot expect justice or truth from the courts of the land and even less from the Farlam Commission where the odds are stacked against them. The only option left open is to boycott the commission and to take collective protest action to demand that the government pay the legal fees of the miners’ representatives. This demand should now be merged with the continued fight for a living wage and for defence of jobs at Anglo Platinum and taken up across the platinum belt.