MOGOENG CJ
assault proper, maltreatment or child abuse has always been a criminal offence which
all sound-minded parents agree must be punishable. It is an aberration that has
inexplicably been left to permeate society with consequences that somehow militate
against or undermine the retention of moderate and reasonable chastisement.
[69]
The positive parenting approach relied on by the friends of the court is
fundamentally about educating a child about good behaviour and the do’s and don’ts of
life. It also entails a more effective parent-child communication to help a child realise
the adverse consequences of unacceptable conduct and to generally guide her on how
best to behave in life. This is the most basic or commonsensical approach. And it is
indeed a fairly well-known means of discipline that has coexisted with reasonable and
moderate chastisement for many years. More importantly, it is a less restrictive means
of discipline that could potentially be effective in the attainment of the same purpose
that moderate and reasonable chastisement is intended for. Of concern to many others
could be the apparent less regard for more effective consequence management in the
approach to positive parenting that the friends of the court seem to be advocating for.
Meaningful consequences must arguably follow repeat or serious wrongdoing. For it is
that appropriate admonition that should never be played down.
[70]
All of the above considered, I am satisfied that important though the purpose of
the possible limitation of these rights is, the paucity of proof that the chastisement is
beneficial and the availability of less restrictive means to instil discipline militate
against the reasonableness and justification of the limitation. Children are indeed
vulnerable and delicate. They are not always able to protect themselves and may not
always know what to do in the event of the law being broken to the prejudice of their
best interests. This conclusion is arrived at without branding parents, who prefer
moderate and reasonable chastisement, as unloving, irresponsible and inclined to harm
or abuse their children.
[71]
The right to be free from all forms of violence or to be treated with dignity,
coupled with what chastisement does in reality entail, as well as the availability of less
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