Written by: Dr A. Donkin 
Article source: Supplied

Dear Chief Justice Mogoeng

I am a General Practitioner in Somerset West and I am greatly concerned after reading your judgement outlawing reasonable chastisement.

Recently it was necessary for me to stitch a laceration on the forehead of a 3-year-old boy. Often we would prefer to sedate young children for stitching and they are often unable to remain still, due to the fear of such a procedure. However, in this case, the boy’s parents could not afford an anaesthetic and asked that we attempt to stitching him without sedation and they felt that he might be able to remain calm. We proceeded, and I was able to carry out the procedure without anaesthetic or sedation. His mother was able to keep him calm with her presence, her voice and breathing techniques that she had taught him. In many such cases, especially in government hospitals, where anaesthetics are not readily available for small procedures, such children need to be held down.

In order to stitch the laceration, I first had to inject some local anaesthetic into his skin around the laceration. This was very painful for him, but allowed me to be able to continue with the rest of the stitching pain free.

In paragraph 38 of your judgement you you state:

“The dictionary meaning of violence is “behaviour involving physical force intended to hurt, damage or kill someone or something.”[quoting from the Oxford Dictionary]

Now, I must ask you, according to your interpretation of your chosen definition of “violence” according to your judgement, did I hurt the child with a physical force, and did I do it intentionally? Absolutely I did. I did not do it by mistake and it hurt him more than any hiding has ever hurt any of my own children.

Your judgement implies I am a criminal for doing my job and helping this child.

Further, you claim that your chosen definition of “violence”: “this is the ordinary grammatical meaning that ought to be ascribed to the word “violence” within the context of section 12(1)(c) of the Constitution.”

I would like to draw to your attention, a few other dictionary definitions of “violence.”

* American Dictionary: “Extremely forceful actions that are intended to hurt people or are likely to cause damage”

With this definition it would not be possible to attribute violence to all mild physical chastisement, like a flick on the wrist or a mild smack that causes no more than transient redness on the bottom – as these actions could not be said to be “extremely forceful”. Further this definition does not limit violence to physical actions, but simply ‘actions’ which might also be verbal or other.

* Cambridge Dictionary: “Actions or words that are intended to hurt people”

With this definition one has to give attention to verbal and physical chastisement. This would mean that when you outlaw all mild physical chastisement, like a flick on the wrist or a mild smack that causes no more than transient redness on the bottom, then you have to outlaw a firm verbal “No!”, as well, if the child feels emotionally hurt.

* Merriam-Webster Dictionary: “The use of physical force so as to injure, abuse, damage, or destroy” –

This definition uses the word “injure” instead of “hurt”, and does not enable you to come to the same conclusion that you came to with the Oxford definition that you used.

In fact this definition is quite revealing, as the word “hurt” is supposed to mean something closer to “injure” in the ordinary grammatical use of the word “violence”; rather than meaning a transient mild pain that is necessary for the ultimate good of the person.

Your argument against moderate chastisement hinges upon your definition of violence. One must ask, when the definition of violence is so central to the outcome of the judgement, why you did not take more care in defining it. It seems as if a definition was chosen that would best serve a predetermined outcome.

Dictionary definitions are not written by the creators of the dictionaries with the purpose of holding up complex legal arguments on all varieties of topics.

Further, I would like to point out, that either your chosen definition or your interpretation of it, is not in fact the “ordinary grammatical meaning” of violence. You have interpreted your chosen definition to include even mild smacks or hidings (as part of loving discipline with a positive outcome), as “violent”. However, the majority of citizens in our country do not consider these actions to be violent at all. Thus, you are not at all using the word “violence” according to its “ordinary grammatical meaning”. Rather you are changing the ordinary meaning of the word “violence” in order to outlaw something that is not included in the common grammatical usage of that word.

This is how you have misinterpreted your chosen definition:
You have included under the meaning of “hurt”, even something like a mild transient or fleeting pain that is necessary to go through for the ultimate and intentioned good of the person receiving the pain.

However, if you qualify the meaning of “hurt” by looking at the Merriam-Webster Dictionary, and the American Dictionary, that I have quoted above, you will note that the word “hurt” holds a meaning similar to “injure”, and “cause damage”. Understood as such, the word “hurt” in your chosen definition is closer in meaning to “harm”. This would necessarily exclude something like a mild transient or fleeting pain that is necessary to go through for the ultimate and intentioned good of the person receiving the pain.

The consequences of your misinterpretation are drastic, as in the example that I gave of when I recently had to stitch up a child’s skin.

My point is, that it is an absolute necessity that there be an exclusion in the definition of “violence” for something like a mild transient or fleeting pain that is necessary to go through, for the ultimate and intentioned good of the person receiving the pain. And a definition of violence, clarified by such an exclusion, is the real ordinary grammatical meaning of violence.

This is not at all a “highly technical” meaning of violence, that you say you want to avoid (in paragraph 39 of your judgement). It is easy to understand. Rather your own interpretation of the definition that you supplied is simplistic in such a way that it misses the true meaning. We should not be highly technical, but neither should we be simplistic.

Another limitation to your interpretation of your chosen Oxford definition of “violence” is that it refers only to physical violence. However, the true ordinary grammatical usage of violence includes verbal abuse as well and privation, as forms of violence. For this reason, the Cambridge Dictionary and American Dictionary definitions above, do not limit the meaning of violence to physical force.

Having said that, there are 2 places in your judgement where you do leave room for arguments that could seek to include other forms of chastisement, and not merely smacks, in what is outlawed.

a) In paragraph 39 you have stated: “The first question is whether we ascribe a highly technical meaning to the word “violence” or give it its ordinary grammatical meaning which connotes any application of force, however minimal.“

This statement leads to including as “violence”, examples like picking up a child to put them in the corner or on a chair, or even griping the wrist of a child to take away a cookie. These are physical actions that are ‘applications of force’ that cause emotional and perhaps also mild physical hurt.

b) You have also stated in paragraph 40:

“The reference to violence does, therefore, extend to all forms of chastisement, moderate or extreme – a smack or a rod.”

You have not specified the meaning of “chastisement” as you use it here or anywhere else in your judgement. The definitions of chastisement are:
* “To criticize someone severely” – Cambridge Dictionary
* “Physical punishment” or “Criticism of somebody for doing something wrong“ – Oxford Dictionary
* “To censure severely” or “To inflict punishment on” – Merriam-Webster Dictionary

Regarding child discipline, there are 3 main commonly used forms of chastisement:
1) A stern voice of command or reprimand
2) A brief privation (for example of social contact), like a “time-out”, or a “growing-good chair”
3) A mild or moderate physical smack/hiding, or even milder – picking up a child to put them elsewhere.

Each of these 3 can be incorrectly conflated with a form of child abuse:
(1) A stern voice can be conflated with verbal abuse/violence;
(2) A brief privation can be conflated with abusive or violent deprivation (like locking a child in a basement for 2 days without food or water);
(3) A mild or moderate physical smack/hiding can be conflated with physical abuse or violence;

The statement in paragraph 40: “The reference to violence does, therefore, extend to all forms of chastisement, moderate or extreme – a smack or a rod”, seems primarily to be talking about the severity of physical chastisement. But because you have not defined “chastisement” nor specified physical chastisement here, you leave room for the interpretation that all forms of chastisement (physical, verbal and privation), and not merely smacks, are outlawed.

Thus, the result of your incorrect simplistic interpretation of your chosen definition of the word “violence”; put together with your statement “any application of force, however minimal” (paragraph39), and also your statement “all forms of chastisement”(paragraph 40), arguably mean that not only discipline in the form of smacks/hidings are outlawed in your judgement, but also all other forms of loving parental chastisement.

This could include a “time-out”, or a “growing-good-chair”. Even if a parent physically picks up a toddler to remove them from something dangerous, the toddler would feel hurt emotionally and this could be “violent chastisement”. If a parent forcefully removes a sweet from the hand of a toddler, the toddler would feel hurt, and this could be “violent chastisement”. If a parent shouts a forceful “No!” to a child, and they feel hurt, this also could be “violent chastisement”.

In paragraph 39 of your judgement, you ask the following question: “Is it not the actual or potential pain or hurt that flows from it that is believed to be more likely to have a greater effect than any other reasonably available method of discipline? Otherwise, why resort to it?“

This question reveals a naivety in your understanding of discipline. It is not that a mild or moderate smack/hiding is the last ‘resort’, but rather that it is the most appropriate form of chastisement (as opposed to verbal or privation) in certain circumstances and contexts. It is an inherent part of discipline, that the experience of discipline be unpleasant. This experience of the unpleasantness will unavoidably be experienced as “hurt” – in whatever form of chastisement it comes. Understood in terms of neuroscience this mild or moderate “hurt”/unpleasantness forms part of the normal healthy development of inhibitory neurological pathways in the brain that help to organise normal healthy social interactions. A child’s parents are in a unique position in that they are the only people that can help form a child’s healthy neurodevelopment in this way.

The only way to avoid this “hurt” (or unpleasantness of discipline) is to have no discipline at all.

The unpleasantness of this “hurt” is the opposite of ‘harm’, ‘injure’ and ‘cause damage’, that properly define violence, as it is ultimately healthy for the child receiving the discipline.

Further, it is naive to suggest that “positive parenting” alone is a complete or effective solution to child discipline. You provide no evidence for this suggestion of yours. (Paragraph 64)

Each child is different and also changes over time and it should be left up to parents to know what is effective discipline for a child at a particular age.

About the evidence:
In paragraph 65 you say: “It bears repetition that not much was said to help us appreciate that the benefits of that chastisement indeed outweigh its disadvantages, and thus justify the limitation.”

I would like to point out that you mentioned, yourself, in paragraph 64 that the appropriate studies have not been done.

About Dignity:
In paragraph 48 of your judgement, you state: “That said, moderate and reasonable chastisement does impair the dignity of a child and thus limits her section 10 constitutional right. As with section 12(1)(c), the question that remains is whether the limitation is justifiable.“

However, you provide no evidence for this statement, and it is simply comes across as an assumption. I would like to challenge this assumption:

Loving, appropriate chastisement does not mean that the child being disciplined has less inherent value as a person; Nor does it mean that the child is being treated as if they had less value as a person. Rather it is an expression of the recognition of their inherent human dignity/value as a person, that leads the parent to discipline in the first place.

Dignity is a complex concept with many categories and influenced by world-view. You have not clarified in what sense dignity is used here.

How may parents administer physical chastisement in their families:

Though parents use many different techniques of discipline, physical chastisement is often used in particular contexts. A good guide to follow is the advice of expert, psychologist and author, Dr James Dobson who recommends that physical chastisement not be used before age 2, rarely after age 6 and not at all after age 12.

Reasonable recommended examples for its use, are the following types of situations:
1) For unrelenting wilful defiance
2) For behaviour that is placing a child in immediate serious harm (here, the danger to the child outweighs the unpleasantness of the chastisement, and is necessary to protect them from immediate harm)
3) Nastiness between sibling

A Healthy precaution is also to not physically chastise while feeling anger. It is a calm process out of knowing that this is the best thing for the child, even though the parent does not like performing the chastisement. The parent takes the child to their room (if nearby); explains the reasons for the smack; explains that they do this out of love for the child and for their good, because it is important that they grow up to be good. The parent might administer one or 2 taps on the bottom with a wooden spoon; enough to cause a sting and at most some transient redness of the skin, but no bruise or remaining mark. The parent then hugs the child while asking them to verbalise an apology. Then the parent affirms that it is all over, forgiven and forgotten about.

This is not “violent”, neither in the real ordinary grammatical meaning of the word, nor in the sense intended by the framers of the Bill of Rights. Perhaps you had something else in mind when you wrote your judgement. Perhaps you were not aware of this type of physical chastisement.

The position parents are forced into:
Parents are now forced into a position where they have to choose between the best interest of their children or unjust and ridiculous laws. Many parents will end up doing what is right and continue to act in the best interest of their children. You have given the tools and the right to the State to kidnap children from loving good parents when they persistently refuse to submit to false state ideology, and insist on doing what is best for their children.

In summary, it seems that you have made your decision based on fashionable ideology of an elite, using incorrect interpretation of a selected definition to achieve this purpose, rather that on consideration of true justice. Instead of eliciting the intended meaning of the constitution, you have manipulated the definition of “violence” to create your own new meaning. This is going to cause severe harm to many South African children and families. It will have no effect on child abuse in South Africa. It seems to me that you have overstepped the bounds of your judicial mandate and are attempting social engineering. This is a matter of no small consequence.

I cannot fathom what you have in mind when you expect parliament to enact a framework to regulate the outlawing of parents using minor forms of chastisement as part of healthy discipline.

Lastly I would like to recommend that you read the book “Dare to Discipline” by Dr James Dobson.

Dr A. Donkin
General Practitioner
MBChB(UP); Pal Dip (UCT)
4 Summer Hill Dr, Somerset West, 7130

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Date published: 26/10/2019

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4 COMMENTS

  1. The people (across all cultures) who are being outlawed by disciplining their kids with loving mild spanking or hinding are the ones who have produced responsible, uprite, well mannered and law abiding citizens, who have respect for others and contribute positively the nation. They, themselves do not think they have been harmed but know that they needed spanking as a child.

  2. A logical technical and well illustrated argument that implicates Justice Mogoengs arguments as frivolous political social dogma which attempts to satisfy the prevailing disordered freedoms from religion and it values.

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