SOUTH AFRICAN HUMAN
RIGHTS COMMISSION
SUBMISSION ON THE CHILDREN’S ACT AMENDMENT BILL [B19B –
2006]
Clause 139 – Discipline of Children
Introduction
The South African Human Rights Commission (the Commission)
welcomes clause 139 of the Children’s Act Amendment Bill [B19B – 2006] because
it seeks to advance a society in which children are free to develop in an
atmosphere that promotes a culture of non-violence. The Commission commends the
NCOP Select Committee on Social Services for its efforts to uphold the rights
of all children to dignity, equality, and freedom and security of the person by
ensuring that corporal punishment is prohibited, that the defense of reasonable
chastisement is abolished; and, the State will support parents through
programmes on appropriate discipline and education and awareness raising about
the benefits of raising children in environments free from all forms of
violence.
1. The
Mandate of the South African Human Rights Commission
The mandate of the
Commission is to respect, promote, and protect the rights in the Bill of
Rights. Section 184 of the Constitution states:
‘The
South African Human Rights Commission
Functions of the South African Human Rights
Commission
184.
(1) The South African Human Rights Commission must—
(a) promote respect for human rights and a
culture of human
rights.
(b)
promote the protection, development and attainment of
human rights; and
(c) monitor and assess the observance of human
rights in the
Republic.’[1]
The Children’s Act Amendment Bill seeks to
provide a regulatory framework to promote and protect the rights of children
within
Discipline of children
139. (1) A
person who has care of a child, including a person who has parental
responsibilities and rights in respect of the child, must respect, promote and
protect the child’s right to physical and psychological integrity as conferred
by section 12(1)(c), (d), and (e) of the Constitution.
(2) No child may be subjected to
corporal punishment or be punished in a cruel, inhuman, or degrading way.
(3) The common law defence of
reasonable chastisement available to persons referred to in subsection (1) in
any court proceeding is hereby abolished.
(4) No person may administer
corporal punishment to a child or subject a child to any form of cruel, inhuman,
or degrading punishment at a [any]
child and youth care centre, partial care facility or shelter or drop-in
centre.
(5) The Department must
take all reasonable steps to ensure that—
(a) education and awareness-raising
programmes concerning the effect of subsections (1), (2), (3) and (4) are
implemented throughout the Republic; and
(b) programmes promoting appropriate
discipline are available throughout the Republic.
(6) A parent, care-giver or any
person holding parental responsibilities and rights in respect of a child who
is reported for subjecting such child to inappropriate forms of punishment must
be referred to an early intervention service as contemplated in section 144
(7) Prosecution of a parent or
person holding parental responsibilities and rights referred to in subsection
(6) may be instituted if the punishment constitutes abuse of the child. [2]
As constituted,
subsection 139(1) of the Children’s Bill addresses the protection of the
child’s bodily well being and psychological welfare. The Commission applauds the NCOP Select
Committee for recognizing both of these critical aspects of childhood
development and for adopting the modern human rights standard set forth in
international law. In
The United Nations
Convention of the Rights of the Child (CRC) places emphasis on the development
of the child. At the heart of the CRC is the recognition of the personal
autonomy of the child. In other words, the rights of the child under the CRC
are separate and independent of that of their parents.[3]
Article 19 of the CRC states that the child has the right to be free from all
forms of physical and mental violence.[4]
United
Nations Convention of the Rights of the Child and General Comment 8
“The
state is further under a constitutional duty to take steps to help diminish the
amount of public and private violence in society generally and to protect all
people especially children from maltreatment, abuse or degradation. More
specially, by ratifying the United Nations Convention on the Rights of the
Child, it undertook to take all appropriate measures to protect the child from
violence, injury or abuse. [our emphasis][5]
By
ratifying the CRC the state undertook to take all appropriate measures to
ensure that the child is free from all abuse and maltreatment. As
In 2006
the CRC Committee issued General Comment 8 which seeks to provide guiding
principles to state parties on “the Rights of the Child to Protection from
Corporal Punishment and other Cruel or Degrading Forms of Punishment.”[7] It
made the following recommendations:
The
United Nations Global Study on Violence against Children
The United
Nations Global Study on Violence against Children was initiated in 2001 when
the General Assembly of the United Nations requested the Secretary General to
conduct an in depth study on the question of violence against children.[14]
The study was conducted by a panel of independent experts[15]
It was conducted amongst a wide range of stakeholders which included state
parties and civil society role players.[16]
The process also included input from children on how violence affects them.[17]
African
Charter on the Rights and Welfare of the Child: Corporal punishment and the
right to cultural and traditional practices
Supporters
in favour of corporal punishment might be of the view that corporal
punishment is central to African beliefs
and cultural practices.[18]
Corporal punishment is not central to African culture and traditional practice
when one considers the spirit and ethos of the African Charter on the Rights
and Welfare of the Child (the Charter).[19]
“Article 20: Parental Responsibilities
1.
Parents
or other persons responsible for the child shall have the primary
responsibility of the upbringing and development [of] the child and shall have
the duty:
(a)…
…
(c) to
ensure that domestic discipline is administered with humanity and in a manner
consistent with the inherent human dignity of the child.[21]
The Charter places
a duty upon state parties to ensure that domestic discipline is administered in
a manner that is consistent with the inherent dignity of the child. Thus to
argue that the practice of corporal punishment is in line with the cultural
manner of raising children would be contrary to the instruction and spirit of
the Charter.
Child protection is further entrenched in relevant sections
of the South African Constitution which include:
q
Section
9 – equality
q
Section
10 – inherent human dignity
q
Section
12 – right to be free from violence (public or private sources): not to be
treated or punished in a cruel, inhuman or degrading manner.
q
Section
28 (1) (d) – right to be protected from maltreatment, neglect, abuse or
degradation
q
Section
28 (2) - the best interest of the child
The
“…One
would have thought that it is precisely because a juvenile [the child] is of a
more impressionable and sensitive nature that he should be protected from
experiences which may cause him to be coarsened or hardened. If the State, as a
role model par excellence treats the weakest, most vulnerable amongst us in a
manner which diminishes rather than enhances their self-esteem and human
dignity, the danger increases that their regard for a culture of decency and
respect for the rights of others will be diminished.”[22]
6.1. The
Commission strongly supports the prohibition of corporal punishment
It is clear that in
terms of our international law obligations and the values and rights set forth
in our Constitution corporal punishment should be prohibited. The Commission
therefore strongly commends the legislature for the bold steps which has taken
in this direction. At the same time, the Commission emphasizes that parents and
care-givers need support on appropriate and alternative forms of discipline
that will promote healthy relationships between children and adults and ensure
the realization of every child’s potential. This too has been recognized by the
legislature and the Commission welcomes these provisions. Section 139 (5) (a) (b) refers to education
and awareness raising programmes and programmes which will promote appropriate
disciplinary measures in the home. This initiative is commendable and will
bring about a lasting mindset shift in terms of child discipline in the home.
Its implementation will have to be carefully monitored and a concerted multi –
sectoral approach will be needed with adequate human and financial resources
being committed.
6.2. Subsection
139(7) ought to be removed
The Commission is
of the view that subsection 139(7) ought to be removed from the Amendment Bill.
This ought to be done for two reasons, namely:
1.
The inclusion of section 139(7) has the potential to
undermine the provision as a whole
2.
Section 139 (7) is
superfluous as the de minimis non curat
lex rule could be advanced by parents and care givers as a defence.
1. The
inclusion of section 139 (7) in the provision undermines the provision as a
whole
The use of the term
“abuse of the child” is inconsistent with the language of subsections 139(1)
through (4) which seeks to promote the physical and psychological freedom of
the child as set out in section 12(2) of the Constitution. By requiring that punishment constitutes
“abuse”, the provision shifts the language of the provisions as a whole. Whilst
it may not be the intention of the legislature, the effect of this clause as it
now stands may undermine the prohibition contained in the section. It may also
lead to great uncertainty amongst caregivers and parents as to what does and
does not constitute abuse. This in turn may place pressure on government
officials to give parents a wide and generous berth in interpreting which acts
of physical and psychological discipline do not constitute corporal punishment.
The legislature ought to be clear in its prohibition so as not create any
ambiguity.
Subsection (7)
introduces another standard of behavior not defined within the language of the
previous subsections. This will ultimately give parents and care-takers of
children the impression that physical and psychological discipline is
acceptable as long as it does not constitute “abuse.” There is an implication that some forms of
corporal punishment are acceptable whilst at the same time it appears very
uncertain as to what would fall within this acceptable category. Sub-clause 7
thus departs from the spirit of section 12 of the Constitution. There is a need
to ensure that there is no ambiguity about the prohibition of corporal
punishment. Subsection 139(7) is inconsistent with the provision as a whole.
2. The
inclusion of section 139(7) is superfluous as the de minimis non curat lex rule
will apply
The de minimis non
curat lex rule means that the law will
not prosecute trivial matters. The Commission is concerned that any action
under sub-clause 7 would be so trivial that it would not be prosecuted by the
State. The Commission agrees that
prosecution of parents for less serious actions against their children may not
always be in the best interest of the child and the family as a whole. In
addition, South African law already provides for the exclusion of such cases
through the principle of de minimis non curat lex.[23]
The law would allow for trivial assaults to be disregarded that do not meet the
standard that subsections (1) through (4) of section 139 set forth regarding unacceptable
disciplinary conduct against children. For these reasons it would be
superfluous to include sub clause 7 in the Bill.
Should the
legislature not see fit to remove sub-clause 139(7) in its entirety then the
Commission would argue that the word “the punishment constitutes abuse of the
child” be replaced with the words “ it is in the best interests of the child’.
This is a standard that is enshrined in our Constitution (section 28) and a
concept that is already well developed by our law. It takes into account the
nature of the relationship between a parent and/or care giver and a child.
Conclusion
The Commission
encourages the Social Development Portfolio Committee to support clause 139
with the amendments that have been discussed above.
The tabling of clause 139 of the Bill before parliament comes
at an opportune time. The Commission has always supported prohibition on
corporal punishment and commends the State’s initiatives to seek a ban on
corporal punishment in the home as the State has a duty to act to protect
children from all forms of violence.
[1] The Constitution of the
[2] The Children’s Bill [B19-2003]
section 139.
[3] Altson P, The Best Interest of the
Child Reconciling Culture and Human Rights Oxford Claredon press, 1994 1-26.
[4] The CRC article 19 states as
follows:
Article 19
1.
States
Parties shall take all appropriate legislative, administrative, social and
educational measures to protect the child from all forms of physical or mental
violence, injury or abuse, neglect or neglect treatment, maltreatment or
exploitation, including sexual abuse, while in the care of the parent(s), legal
guardian(s), or any other person who has the care of the child.
2.
Such
protective measures should, as appropriate, include effective procedure for
establishment of social programmes to provide necessary support for the child
ad for those who have the care of the child, as well as for other forms of
prevention and for identification, reporting, referral, investigation,
treatment and follow-up of instances of child maltreatment described
heretofore, and, as appropriate, for judicial involvement.
[5] Christian
Education
[6]
[7] United Nations Committee on the
Rights of the Child ‘General Comment No 8 (2006):
The Right of the Child to Protection
from Corporal Punishment and other Cruel or Degrading Forms of Punishment
(article 19, 28(2) and 37 inter alia)’
15 May -2 June 2006.
[8] Ibid note 7 above at page 3 para 7.
[9] Ibid note 7 above at page 4 para
12.
[10] Ibid note 7 above at page 5 para 18
reads as follows:
18. Article 37 of the Convention requires
State to ensure that: “No child shall be subjected to torture or other cruel,
inhuman or degrading treatment or punishment”. This is complemented by and
extended by article 19, which requires States to “take all appropriate
legislative, administrative, social and educational measures to protect the
child from all forms of physical or mental violence, injury or abuse, neglect
or negligent treatment, maltreatment or exploitation, including sexual abuse,
while in the care of parent(s), legal guardian (s) or any other person who has
the care of the child.”
[11] Ibid note 7 above at page 9 para
30.
[12] Ibid note 7 above at page 15.
[13] Ibid note 7 above at page 16 at
para 53.
[14] United Nations General Assembly
Item 62(a) of the Provisional Agenda , Promotion and Protection of the Rights
of Children, 29 August 2006 A/61/299
<www.violencestrudy.org/IMG/pdf/English.pdf>
[15] Ibid note 14 above page 1.
[16] Ibid note 14 at page 6.
[17] Ibid note 14 at page 8.
[18] Rapcan Waterhouse S “It never did
me any harm” page 3.
[19]A strong criticism against the
prohibition of corporal punishment in home is that it entrenches a Eurocentric
approach to raising the child and it attacks and eradicates African culture.
The Commission is sensitive to diversity when it seeks to meet its
constitutional obligation. It is in light of this that we seek to determine the
value of corporal punishment under the African Charter on the Rights and
Welfare of the Child.
[20] African Charter note 19 above
article 20 (1) (c) reads as follows:
“Parents or other persons responsible for the child
shall have the primary responsibility of the upbringing and development the
child and shall have the duty:
…
(c) to ensure that domestic discipline is
administer with humanity and in a manner consistent with the inherent dignity
of the child…”
[21] Ibid.
[22] S
v Williams 1995 (3) SA 632 at para 47.
[23] p. Burchell, Jonathan. Principles
of Criminal Law, p. 222.