Corporal Punishment of Children: Developments in South Africa

Corporal Punishment of Children: Developments in South Africa
Letter of 12/19/98 to PTAVE from Graham Travers
My name is Graham Travers. I am a judicial officer in the magistracy (lower/inferior/subordinate courts) in Pretoria, South Africa. Many years ago, as a law student at University of the Witwatersrand, Johannesburg, I completed a research project, as part of my studies, on corporal punishment in public schools (for so-called "White" pupils) in the then Transvaal Province. At that time corporal punishment for male pupils ONLY and for certain specified more serious offences and subject to a "careful" enquiry beforehand was legal in Transvaal schools and most schools throughout South Africa. At that time I found widespread abuse. I have no children of my own, but have retained an interest in the subject ever since.
As you probably know the system of "Apartheid" was closely allied with slavery and abuse and was only sustained by the extensive use of violence and other forms of cruel and degrading treatment. "Black" South Africans and in particular "Black" children bore the brunt of "Apartheid" violence (including corporal punishment). Corporal punishment was extensively used by the Police (especially the Security Police), the Justice system, the (separate) school system for "Black" children, by (especially) Afrikaner ("White") farmers on their labourers and labourers' children. The Report of the Truth and Reconciliation Commission (available to download - until the end of January 1999 - at www.law.wits.ac.za) bears witness to this - if that be necessary.
In 1994 South Africa adopted a new progressive Constitution - and made a clear break with the past. Included was a provision outlawing "cruel, inhuman or degrading treatment or treatment". It included a specific provision on the Rights of the Child - stating that "in all matters concerning [a] child [a person under the age of 18 years] his or her best interests shall be paramount". The final Constitution, which became law in February 1997, went even further. The Bill of Rights now applies to relationships between State and Subject as well as Subject and Subject. Section 12 provides "Everyone has the right to freedom and security of the person, which includes the right - ... [c] to be free from all forms of violence from either public or private sources ... and [e] not to be treated or punished in a cruel, inhuman or degrading way".
In 1995 the Constitutional Court outlawed judicial corporal punishment of juveniles (persons under 21 years). In 1997 the national Schools Act outlawed corporal punishment of school pupils of both sexes at both public and private schools. Also in 1997 Parliament passed the "Abolition of Corporal Punishment Act", which abolished virtually all forms of corporal punishment of children except that administered in the home. Judicial corporal punishment - for both adults and juveniles - was removed from the statute book in 1997/98. Corporal Punishment in the home is still governed by the legal principles South Africa inherited from Great Britain and laid down almost 90 years ago in Rex v. Janke and Janke - that permitting moderate and reasonable chastisement (corporal punishment) of children.
Parliament has, however, recently enacted the Domestic Violence Act of 1998 (not yet in operation) which affords extensive protection to victims of domestic violence - including children. The Act allows a victim of "domestic violence" - which includes "any act or threatened act of physical violence" (termed "physical abuse") - to apply to a lower court for a "protection order". If such an order is granted and is violated by the person subject to it, that person can be arrested and imprisoned. Further criminal charges can also be pursued against the person. A child can apply for such an order without any parental assistance or permission and police and court officials MUST assist the complainant where necessary. Where urgency is shown an application can be brought outside normal court hours or over a weekend/on a public holiday.
Where a protection order is granted by court, the court has extensive powers to assist a victim, including prohibiting the person subject to such an order from entering the complainant's home, forcing the complainant to give a victim financial aid and refusing contact with a child. The court can also order the police to seize any "dangerous weapon" or firearm from the respondent.
A respondent who breaches such an order faces imprisonment for up to 5 years or a fine of between R30 000 (US$5 000) and R3000 000 (US$50 000).
In addition, where a person commits the crime of Assault with intent to do Grievous Bodily Harm (a serious assault) where the victim is a child under the age of 16 years a court convicting him or her must imprison that person for a minimum of 10 years in the case of a first offender, 15 years in the case of a second offender and 20 years in the case of a third or subsequent offender - unless the court "is satisfied that substantial and compelling circumstances exist which justify imposition of a lesser sentence than the sentence prescribed". Such imprisonment may not be suspended and is normally subject to a non-parole period of up to two thirds of the sentence.
The European Court on Human Rights (ECHR) recently decided in A. v. United Kingdom (downloadable from www.dhcour.coe.fr) that the Common Law rules - applicable in Great Britain - of moderate and reasonable corporal punishment did not provide sufficient protection to children under the European Convention on Human Rights (ECHR). As this is also the Common Law in South Africa - presently still applicable - it is only a matter of time before the Common Law position will have to be re-examined by the Courts. The Constitution provides that "a court, tribunal or forum ... must promote the values that underlie an open and democratic society based on human dignity, equality and freedom ... [and] ... must consider international law [which includes the jurisprudence of the ECHR] ..." when interpreting the Bill of Rights. It also provides "[w]hen interpreting any legislation, and when developing the common law ... every court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights".
The South African Ministry of Justice recently published a booklet "LAW TALK FOR CHILDREN" - directed at children - which condemns corporal punishment wherever it takes place and supports its abolition in all its forms (Issued by The Ministry of Justice, Private Bag X81, PRETORIA, 0001, Republic of South Africa; Telephone +27 12 323 8581; No Fax Number available). It is quite that the South African Government means business when it comes to child abuse.
An interesting article on corporal punishment -"To Smack or Not to Smack? Should the Law Prohibit South African Parents from Imposing Corporal Punishment on Their Children" - written by Steve Pete, a senior lecturer in law at the University of Natal at Durban, appears in the latest issue of the South African Journal on Human Rights (SAJHR) (Volume 14 Part 3 [1998] pages 430 - 460) Centre For Applied Legal Studies [CALS] University of the Witwatersrand, Johannesburg). I don't know whether this article is available in electronic format or what the e-mail address is of the author. I hope you found my thoughts encouraging and useful.
Regards,
GRAHAM TRAVERS
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