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Report updated September 2012

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Child population
18,086,000 (UNICEF, 2010)

Summary of law reform necessary to achieve full prohibition

Prohibition is still to be achieved in the home.

Under common law, parents have the power “to inflict moderate and reasonable chastisement on a child” (R v Janke and Janke 1913 TPD 382), and this power may be delegated to a person acting in the parent’s place (except teachers and others specifically prohibited in legislation from using it in alternative care settings). The near universal acceptance of corporal punishment in childrearing necessitates clarity in law that no level of corporal punishment is acceptable. The common law defence should be repealed, and explicit prohibition enacted of all corporal punishment and other cruel or degrading forms of punishment.

Current legality of corporal punishment

Home

Corporal punishment is lawful in the home. Under common law, parents have the power “to inflict moderate and reasonable chastisement on a child for misconduct provided that this was not done in a manner offensive to good morals or for objects other than correction and admonition” (R v Janke and Janke 1913 TPD 382). This power may be delegated to a person acting in the parent’s place, though not in the case of teachers. Provisions against violence and abuse in the Children’s Act (2005), the Constitution (1996) and the Domestic Violence Act (1998) are not interpreted as prohibiting all corporal punishment in childrearing.

The Children’s Act was amended in 2007 to provide for prevention and early intervention programmes which must focus on, among other things, “developing appropriate parenting skills and the capacity of parents and care-givers to safeguard the well-being and best interests of their children, including the promotion of positive, non-violent forms of discipline” (article 144(1)(b)); a clause which would have prohibited corporal punishment in the home was removed from the Amendment Bill before it was passed by Parliament, pending further investigation. The Children’s Act is under review (2012): proposals have been made to include explicit prohibition which are supported by the Department of Social Development.

Schools

Corporal punishment is unlawful in schools and other education institutions under the South African Schools Act (1996, article 10) the National Education Policy Act (1996, article 3) and the Further Education and Training Colleges Act (2006, article 16). In 2000, the Constitutional Court dismissed a bid by 196 Christian schools to make an exception to the prohibition on grounds of religious conviction (Christian Education South Africa v Minister of Education, 2000 (4) SA 757 (CC)).

Penal system

Corporal punishment is prohibited as a sentence for crime under the Abolition of Corporal Punishment Act (1997), enacted following a Constitutional Court judgment in 1995 that whipping is unconstitutional (S v Williams et al, 1995 (3) SA 632 (CC)). There is no provision for corporal punishment in the Child Justice Act (2008). It is explicitly prohibited in traditional courts in the Traditional Courts Bill under discussion in 2012.

Corporal punishment is unlawful as a disciplinary measure in penal institutions. The Correctional Services Second Amendment Act (1996) abolished disciplinary corporal punishment in prisons in respect of civil debtors, though there is no explicit prohibition of corporal punishment in the Correctional Services Act (1998). Regulations under the Children’s Act explicitly prohibit corporal punishment in child and youth care centres and put a duty on the manager and staff of such centres to promote positive discipline (articles 73 and 76). The Child Justice Act states that in applying the Act “the rights and obligations of children contained in international and regional instruments, with particular reference to the United Nations Convention on the Rights of the Child and the African Charter on the Rights and Welfare of the Child” must be taken into account (article 3(i)).

Alternative care

Regulations under the Children’s Act explicitly prohibit corporal punishment and other forms of humiliating and degrading punishment in foster care (article 65), cluster foster care schemes (article 69) and child and youth care centres (articles 73 and 76). National Norms and Standards for Drop-In Centres states that corporal punishment should not be used (sub-section 1), as do National Norms and Standards for Early Childhood Development Programmes (sub-section 3).

Prevalence research

The Statistics SA General Household Survey 2011, which involved 30,000 households between July and September 2011, found that 17% of students in South Africa had experienced corporal punishment at school. The highest percentage of students experiencing corporal punishment was in the Eastern Cape, where there was an increase from 23% in 2010 to 30% in 2011. In Limpopo, the percentage of students experiencing corporal punishment rose from 9% in 2010 to 19% in 2011. In the Northern Cape, North West and Gauteng, the percentage of students experiencing corporal punishment declined since 2010. The lowest percentage of students experiencing corporal punishment was in the Western Cape: 4%. (Reported in News24, 3 May 2012)

A survey by Statistics SA revealed that the use of corporal punishment in schools declined overall between 2009 and 2010, from 17% of students experiencing corporal punishment in 2009 to 14% in 2010. However, in some areas the use of corporal punishment increased: in the Northern Cape, from 5.6% to 17.5%, and in the North West, from 12.7% to 21.7%. (Reported in News24, 5 May 2011)

The National Schools Violence Study, undertaken by the Centre for Justice and Crime Prevention and published in 2008, looked at the experiences of almost 13,000 learners in primary and secondary schools, as well as over 200 principals and 500 educators. It found that 70.1% of primary school learners and 47.5% of secondary school learners reported that they were physically beaten, caned or spanked by an educator or principal when they had done something wrong. Almost half of primary school children (47.3%) reported being spanked, caned or hit at home. (Burton, P. (2008), Merchants, Skollies and Stones: Experiences of school violence in South Africa, Cape Town: Centre for Justice and Crime Prevention)

The National Youth Victimisation Study released in May 2006 by the Centre for Justice and Crime Prevention reported on a survey of 4,409 young people aged between 12 and 22 years which found that nationally 51.4% of children continue to be subjected to corporal punishment in schools, with the lowest prevalence being 17% in the Western Cape. The survey also found that around a quarter of the youth live in a home where domestic violence between caregivers or parents is common. (Reported in Shlensky, A. (2006), “Corporal punishment still rife in classrooms despite being banned”, Cape Times, 11 May 2006)

The first national survey of attitudes to child rearing and the use of corporal punishment by caregivers was undertaken in 2003, as part of the South African Social Attitude Survey (SASAS). Out of a representative sample of 2,497 men and women over 16 years of age from all provinces, population groups and economic backgrounds, 952 parents with children were surveyed specifically on corporal punishment. 57% of parents reported using corporal punishment, most commonly on children aged 3 years, with 33% using severe corporal punishment (beating with a belt or stick), most commonly on 4-year-olds. Of those who had smacked their children in the past year, 30% were men and 70% were women, with fewer younger than older parents using corporal punishment. The study concluded that the strongest predictor of severe corporal punishment was an attitude supportive of the use of physical punishment. (Dawes, A. et al. (2004), Partner violence, attitudes to child discipline & the use of corporal punishment: A South African national survey, Cape Town: Child Youth & Family Development, Human Sciences Research Council)

In 2004, Save the Children undertook qualitative research involving 410 boys and girls aged 6-18 years from four provinces in South Africa. The study found that children of all ages and income categories experienced corporal punishment at home and in school, although very few cases were reported by children in high income environments and children from Indian communities. The most common form of corporal punishment was beating with a belt; in schools it was most often inflicted using a ruler, stick or board duster on the hands. The most severe forms were experienced by children from low income environments, in both the home and school. Schools from high income areas were generally not using corporal punishment. (Clacherty, G., Donald, D. & Clacherty, A. (2005), South African Children’s Experiences of Corporal Punishment, Pretoria: Save the Children Sweden)

Recommendations by human rights treaty bodies

Committee on the Rights of the Child

“The Committee expresses appreciation for the efforts made by the State party in the area of legal reform…. [T]he Committee notes with appreciation the additional legislation enacted to bring about greater harmonization between domestic legislation and the Convention, including … the Abolition of Corporal Punishment Act (1997)….

“The Committee appreciates the State party’s initiatives within the school environment. In this regard, it welcomes the enactment of the South African Schools Act (1996) which has led to enhanced participatory rights for children within the educational system; the right of children to choose their own language of learning (multilingualism); and the abolition of corporal punishment in schools….

“While the Committee is aware that corporal punishment is prohibited by law in schools, care institutions and the juvenile justice system, it remains concerned that corporal punishment is still permissible within families and that it is still regularly used in some schools and care institutions as well as generally within society. The Committee recommends that the State party take effective measures to prohibit by law corporal punishment in care institutions. The Committee further recommends that the State party reinforce measures to raise awareness on the negative effects of corporal punishment and change cultural attitudes to ensure that discipline is administered in a manner consistent with the child’s dignity and in conformity with the Convention. It is also recommended that the State party take effective measures to prohibit by law the use of corporal punishment in the family and, in this context, examine the experience of other countries that have already enacted similar legislation.”
(23 February 2000, CRC/C/15/Add.122, Concluding observations on initial report, paras. 3, 8 and 28)

Committee Against Torture

“While noting that the State party’s legislation, as well as the jurisprudence of the Constitutional Court (S v. Williams and Others, of 1995), prohibits corporal punishment, the Committee remains concerned at even its infrequent use in some schools and other public institutions and at the absence of an oversight mechanism to monitor these institutions (art. 16).

The State party should ensure that legislation banning corporal punishment is strictly implemented, in particular in schools and other welfare institutions for children, and establish a monitoring mechanism for such facilities.”
(7 December 2006, CAT/C/ZAF/CO/1, Concluding observations on initial report, para. 25)

Universal Periodic Review

South Africa was examined in the first cycle of the Universal Periodic Review in 2008 (session 1). The following recommendation was made (23 May 2008, A/HRC/8/32, Report of the Working Group on the Universal Periodic Review: South Africa, para. 67(1)):

“Recommended to South Africa to commit not only to removing the defence of reasonable chastisement but also to criminalizing corporal punishment with the concomitant pledges towards raising awareness and providing the necessary resource to support parents in adopting positive and alternative forms of discipline (Slovenia)”

The Government neither accepted nor rejected the recommendation, stating that corporal punishment in the home is addressed under existing legislation on domestic violence (A/HRC/8/32, Report of the Working Group, para. 67(1); A/HRC/8/52, Report of the Human Rights Council on its eighth session, para. 567).

Examination in the second cycle took place in 2012 (session 13). The following recommendation was made (9 July 2012, A/HRC/21/16, Report of the Working Group, para. 124(88)):

“Prohibit and punish corporal punishment both in the home, as well as in public institutions such as schools and prisons (Mexico)”

The Government accepted the recommendation but implied that existing law is adequate, stating (A/HRC/21/16/Add.1, Report of the Working Group: Addendum, annex): “Corporal punishment is outlawed in the South African government system and perpetrators of this inhumane form of punishment and violence are reported to law enforcement and accordingly punished.”

This analysis has been compiled from information from governmental and non-governmental sources, including reports on implementation of the Convention on the Rights of the Child. Every effort is made to maintain its accuracy. Please send us updating information and details of sources for missing information: info@endcorporalpunishment.org.

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