On October 19, the High Court in Johannesburg ruled that the common-law defence of "moderate and reasonable chastisement" was unconstitutional.
Put simply, the common-law defence which allowed parents to use physical force to discipline their children as long as the force was "moderate" and "reasonable" has been abolished.
This means that the law now affords children the same protection from violence as adults. Corporal punishment, such as smacking, spanking, slapping, shaking and caning children, is no longer allowed in the home.
Proponents of corporal punishment will be quick to argue that the abolishment of the common-law defence will lead to loving parents being criminalised and jailed, and that children will be "out of control" without physical discipline.
This fear is unfounded; it is highly unlikely that abandoning the common-law defence will result in increased criminalisation of parents for smacking their children as courts have to consider the best interests of the child in matters that affect the child.
In cases of "moderate" corporal punishment it will generally not be in the best interests of the child to have their parents prosecuted or imprisoned, or for the child to be removed from their family.
The prosecution of parents will be reserved for cases where other interventions have failed or for cases of harsh physical discipline.
This is the approach to criminalisation that has been used so far.
The intention of the judgment is to bring the law in line with the constitution and the Children's Act. As pointed out in the high court judgment, one of the objectives of the Children's Act is "to promote positive parenting and positive discipline, rather than to criminalise errant parental behaviour".
The primary approach of a court dealing with parents who have used corporal punishment would therefore be to order the parents to participate in prevention and early intervention programmes, such as parenting programmes.
The change to the common law does not prohibit parental discipline. Parents are still allowed to discipline their children, but not by violent means.
Given that many parents are unaware of alternatives to corporal punishment, we need awareness campaigns and education on positive forms of discipline such as time out, withdrawal of privileges, etcetera, and their effectiveness.
Proponents of corporal punishment also argue that the state cannot "tell me what to do in my home" and that prohibiting this type of discipline violates parents' right to family, freedom of religion and cultural belief.
The argument that the state cannot interfere in people's private lives or homes is incorrect.
Our constitution provides that everyone has the right to be free from all forms of violence from public or private sources. Furthermore, the state must not only respect our rights, but has a duty to protect us from human rights violations by public authorities or private parties.
The state is thus not only allowed to tell people what to do in their homes, but has in fact a duty to protect children - and adults - from violence by individuals in the home. It is not that long ago that the argument about the "sanctity" of people's homes was made when lawmakers had to consider whether marital rape should be an offence or not, and whether the state had a duty to protect women from domestic violence.
Many people nowadays agree that violence against women, whether perpetrated in the home or elsewhere, is unacceptable and violates their rights. The same should apply for children.
Also, our constitution does not expressly recognise or protect parental rights or the right to family. So proponents of corporal punishment cannot rely on such rights.
Parents do have the right to freedom of religion, thought, belief and opinion. In response to this right, the Constitutional Court has held that "where reasonably possible" the state should avoid "extremely painful" and "intensely burdensome choices" for believers.
Is it extremely painful for religious parents to refrain from using corporal punishment and to use alternative, nonviolent discipline? This may depend on people's interpretation of their faith.
However, the same judgment also highlighted that "believers cannot claim an automatic right to be exempted by their beliefs from the laws of the land" and that "a society can cohere only if all its participants accept that certain basic norms and standards are binding".
As a society plagued by staggering levels of violence we should agree that the law cannot legitimise violent disciplining of children.
Parents have the right to follow cultural (and religious) practices with other members of that community, but this right may be exercised only in a manner consistent with other human rights protected in the constitution.
Thus cultural and religious practices have to be in line with children's right to dignity, bodily and psychological integrity, and the principle of the best interests of the child.
The deliberate infliction of pain - to stop a child's behaviour or punish them for misbehaviour - clearly violates these rights.
The prohibition of corporal punishment in the home does not violate parents' rights. Instead, it is mandatory to protect children's rights.
• Stefanie Röhrs is a senior researcher at the Children's Institute, University of Cape Town
