THE clause in the Children‘s Amendment Bill that could make “any minor smack on the buttocks or rap over the knuckles” illegal suggests that we are moving towards becoming some kind of nanny state in which legislation governs even the minutiae of our daily lives such as the manner in which we discipline our children.

The Bill stipulates “no child may be subject to corporal punishment”, and as Western Cape director of public prosecutions Rodney de Kock notes, the implication of this is that every time a child lays a complaint against a parent, an investigation would be required and thereafter due legal process.

That alone makes the proposal ludicrous given the enormous court backlogs and the countless hours of police investigation required from an already understaffed force.

Essentially, as with the tobacco legislation, it would be unenforceable.

We are mindful that the intention of the legislation is to prevent abuse of children in the home, but that provision already exists in terms of which medical professionals are bound to report injuries to a child they believe could have resulted from excessive force.

That safeguard therefore exists although it is not foolproof.

It is also questionable whether it really is in the interests of sound family relations to allow a child to lay a charge against a parent where evidence of excessive force is lacking and where, as is mainly the case, the smack is in the interests of the child. Is such a course of action really likely to assist with the child‘s disciplined upbringing?

There are two points that need to be raised around this issue.

Firstly, government needs to be aware of the dangers of “over-legislating” – not only because Acts that cannot be enforced may breed contempt for the law, but also that they can impinge on the constitutionally-entrenched freedom of the individual.

Secondly, it is not legislation that is needed in this instance but education that offers advice on alternative punishments. In this way the result the authors of the Bill now seek may to some extent be achieved.