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Journal Article

Citation

Lubaale EC. Child Abuse Res. South Afr. 2019; 20(1): 36-50.

Copyright

(Copyright © 2019, South African Professional Society on the Abuse of Children)

DOI

unavailable

PMID

unavailable

Abstract

The issue of corporal punishment has always been controversial. Controversies concern, in particular, whether use of physical force against children should be abolished in its totality, or, whether room should be left for parents to minimally use physical force for discipline. In the South African 2017 judgment of YG v S (YG case), the Court ruled that the common law defence of reasonable and moderate chastisement is unconstitutional and no longer applies to South African law. This decision has the effect of totally abolishing the use of physical force against children, even for purposes of child discipline by parents. In the 2004 case of Canadian Foundation for Children v Canada (The Canadian Foundation case), Canada took a path different from South Africa's, with the Supreme Court of Canada invoking an approach leaving room for use of physical force by parents for purposes of discipline and education. Both approaches have been subject to condescending criticism. South Africa's approach is faulted for being individualistic and hardly taking the relational nature of rights in the family unit into account while Canada's approach is criticized for being insensitive to children's rights. In light of the limitations of either approaches, it remains perplexing whether there exists an approach that can strike a balance between children's rights and parental rights within a family unit. This article demonstrates that by reconceptualising the notion of "discipline", such a balance could be struck. It is underscored that if child discipline is understood beyond the archaic lens of "inflicting pain upon a child", parents still enjoy discretion within the family unit to discipline their children through the various alternatives to physical force. The discretion at the disposal of parents therefore suggests that South Africa's approach, if invoked, can accord due regard to children's best interest and parental right's within the family unit.


Language: en

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