The Peace Centre is concerned about corporal punishment in the school and at home. It is detrimental to the development of the child:
1. It may inflict bodily harm and death.
2. It stunts the emotional development of the child.
3. It stunts the child’s ability to learn.
4. Corporal punishment is a cause of behavioral problems.
5. Children who were beaten are more prone to be violent later in life.
6. People who were beaten as children are more prone to beat their intimate partners.
7. Pregnant women who are beaten transmit the stress to the unborn child.
The Peace Centre supports the findings and recommendations of the South African Human Rights Commission.
SOUTH AFRICAN HUMAN RIGHTS COMMISSION
CIVIL AND POLITICAL RIGHTS REPORT 2016/17
2.2. Freedom and security of the person
Section 12 of the Constitution states that everyone has the right to freedom and security of the person, which includes the right to be free from all forms of violence, from either public or private sources, and not to be treated or punished in a cruel, inhuman or degrading way.
2.2.1. Corporal punishment
While corporal punishment in schools is prohibited in terms of the South African Schools Act 84 of 1996, it remains a sad reality in South Africa. In February 2016 the death of eight-year-old Nthabiseng Mtambo in the Free State province made the news. She had been beaten on her head with a hosepipe by her Grade 3 teacher for not doing her homework. (48) The SAHRC has called on the National Department of Basic Education to expedite the establishment of a national protocol to enforce the statutory prohibition of corporal punishment in schools, address the shortcomings in the current legislative and policy frameworks, and provide for the prosecution of teachers and educators who continue to administer corporal punishment. (49)
However, while corporal punishment in institutional settings is prohibited it is still permitted in the private sphere (in the home), as no amendment has been passed in terms of the Children’s Act 38 of 2005 (enacted in 2007). (50) In January 2016 the SAHRC published an Investigative Report on a complaint lodged against the Joshua Generation Church in 2013, in terms of the church’s religious doctrine that requires the use of corporal punishment against children. (51) The complainants alleged that the church promotes the dangerous idea that corporal punishment is not harmful, and is, in fact, beneficial, to the child. The church argued that in terms of section 36 of the Constitution the teachings of corporal punishment are a constitutionally acceptable limitation of children’s rights to equality, human dignity, freedom, and security of the person and protection from maltreatment, neglect, abuse or degradation. (52)
The SAHRC examined international, regional and South African law and considered whether the church’s conduct amounted to a violation of the right of children to be protected from maltreatment, neglect, abuse or degradation in terms of the Constitution; whether the promotion of corporal punishment is inconsistent with the standard of the best interest of the child under section 28(2) of the Constitution; and whether the conduct of the respondent amounted to a violation of the rights to equality, human dignity and freedom and security of the person. In its report the SAHRC made the following findings: corporal punishment in any form is inconsistent with constitutional values and violates the provisions of international and regional human rights standards; corporal punishment amounts to a violation of the right of every child to be protected from maltreatment, neglect, abuse or degradation, and violates children’s rights to freedom and security of the person; and corporal punishment or chastisement amounts to a violation of the right to equality and human dignity. The SAHRC found that even light corporal punishment violates the best interest of the child in the Constitution, and should be criminalized. (53)
The SAHRC made specific recommendations to the church, to desist from using and advocating for corporal punishment as a means of disciplining children, as well as a number of broader recommendations:
• That Cabinet should direct the Department of Social Development (DSD) to initiate amendments to the Children’s Act in order to give effect to the prohibition of corporal punishment in the home, to provide for children’s access to justice, and to provide for appropriate remedies and penalties against offenders.
• The DSD should develop policies and programmes to promote alternative forms of nonviolent parenting, as well as plan and budget for the inclusion of non-violent parenting courses in order for South Africa to meet its international human rights obligations in terms of the UN Convention on the Rights of the Child.
• A copy of the report is given to the Department of Justice and Constitutional Development (DOJCD) in order to inform advocacy campaigns, placing greater emphasis on children’s rights to be free from violence in their homes. (54)
In January and March 2016 public consultations were held on the DSD’s draft Child Care and Protection Policy (which underpins planned amendments to the Children’s Act), with other government departments, CSOs, and social workers also supporting a ban on corporal punishment in the home. (55)
The SAHRC continues to monitor the implementation of the prohibition on corporal punishment in schools and the process to prohibit corporal punishment in the home.
48 S Röhrs ‘Twenty years on, corporal punishment in schools is alive and well’ Daily Maverick (14 March 2016).
49 SAHRC (note 10 above) 22-23.
50 In 2007 Parliament removed clause 139 from the Children’s Amendment Bill, which sought to prohibit all forms of violence against children, including corporal punishment in the home. The understanding was that a later amendment would deal with this issue (after further investigation into the matter), however, this amendment has not yet been introduced. Ibid 21.
51 SAHRC ‘Investigative Report in the matter between Complainants and Joshua Generation Church’ (January 2016).
52 Ibid 44.
53 Ibid 56-58.
54 Ibid 59-60.
55 S Röhrs ‘Twenty years on, corporal punishment in schools is alive and well’ Daily Maverick (14 March 2016).