family law south africa

pinocio spank

"I saw it reported recently that the spanking of your child has now been declared a criminal offence. Is this true?"

Corporal Punishment:

Here is a query we received yesterday via email.

 "I saw it reported recently that the spanking of your child has now been declared a criminal offence.

Is this true? Will this not result in an overloading our justice system even more than it already is?"

We all know that corporal punishment in any form in our schools has been outlawed for a long time.

But what is the situation at home?

Here it is important to understand that it has always been a crime of assault to hit a child, even your own child.

In this sense, spanking is already a crime of assault.

Parents, until recently, have however been able to raise the common law special defence of moderate or reasonable chastisement, if criminally charged, and could, if successful with such a defence, be found not guilty of assault. 

In a recent ruling in the Gauteng High Court, where a minor was seriously beaten by his parent, the common law position was changed by the court, which found that the special defence of moderate or reasonable chastisement is unconstitutional and not in the best interest of children.

This ruling in effect abolishes the right of parents to hit/chastise their children as it removes any special defence which parents may have used to justify them doing so.

Does this mean that a small tap on the bottom will result in a parent being criminally charged?

The answer is probably not, as the “de minimis” principle of our law makes it clear that the law is not concerned with trivialities.

However, the judgement essentially now provides the same protection to a child as to an adult and parents can no longer claim a special defence to justify their spanking. 

Parents should be aware that any form of spanking could amount to assault and should refrain from any such conduct towards their or other children in their care and consider alternative methods of discipline.

Please visit our website at www.legaladviceoffice.co.za or send us an email to This email address is being protected from spambots. You need JavaScript enabled to view it. with your legal questions.

About our author:

Hugh Pollard (Legal Consultant), has a BA LLB and 41 years’ experience in the legal field. 22 years as a practicing attorney and conveyancer; and 19 years as a Legal Consultant.

082-0932304 (Hugh’s Cell Number)

This email address is being protected from spambots. You need JavaScript enabled to view it.

www.legaladviceoffice.co.za

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