Bullying and its complex legal framework
Over the past six to nine months there has been a disturbing increase in the number of children being bullied at school. Parents are at their wits’ end. Educators, heads of school and governing body members are aware of these problems in their schools and simply do not know how to address them. They, too, are at their wits’ end. The statistics are frightening.
More than 3.2 million learners are bullied yearly in South Africa.
More than 67% of bully victims will not ask a teacher for help because they don’t think it will change their situation.
90% of school bullying is carried out by learners.
160 000 high-school learners bunk school daily to avoid being bullied.
One in 10 learners drop out of school to avoid being bullied.
16% of learners admit that they are victims of cyber-bullying.
In South Africa, over the past month alone, there have been three suicides of children younger than 15, due to what is believed to have been depression and/or desperation arising out of bullying.
Following recent incidents at various schools across Gauteng, MEC Panyaza Lesufi stated that anyone who wanted to bully and harm other learners would be removed from school. He said bullying and violence in schools would not be tolerated, and that the department needed to defend the rights of learners who were in those schools.
This being said, October is Bullying Prevention Month and, as such, there is no better time than now to shine light on this rampant battle currently being waged on the country’s children.
The South African legal framework
While it may seem that the adoption of a zero-tolerance policy, as advocated by the minister, is the only solution to this problem, it is unfortunately not this simple.
The legal framework that applies to bullying in South Africa is vast and convoluted, with many overlapping areas and conflicting rights and responsibilities.
In short, there are in excess of 20 Acts and pieces of legislation which deal with and relate to bullying, including:
The Constitution and the Bill of Rights – bullying breaches at least six rights protected by the Bill of Rights, rights which a school has the duty to uphold;
The Children’s Act – this places an extremely onerous duty of care on educators and other staff in a school, which can even extend after school hours and requires staff to stand in loco parentis (in the place of a parent) in respect of children under their care;
The Schools Act;
The Protection from Harassment Act;
The Child Justice Act – which deals with how child criminal offenders are to be dealt with; and
The Protection of Personal Information Act.
There are also numerous inferred legal duties which pertain to bullying in schools. Some of this is regulated by case law, to which the general public (schools) does not have access, and some of it is regulated by the common law, with specific reference to the Rules of Natural Justice (which are also not clearly defined).
There is no one piece of codified legislation to assist in guiding educators and other stakeholders in attempting to eradicate bullying. There is not even a formal definition of “bullying”, and this only serves to exacerbate the problem.
For the purpose of this article, bullying will be defined as: “a wrongful, intentional act, whether a physical act, gesture, verbal, written or electronic communication, taking place repeatedly, which is performed by either a single individual or more than one person”.
Risks of legal liability
Due to this complex and confusing network, schools and other educational institutions often find themselves in the invidious position of being found to be legally liable for failure to act correctly in either preventing bullying or reacting to same, in cases where they were unaware that they had a duty to act otherwise.
Bullying and other incidents of violence by learners often lead to disciplinary measures having to be instituted, depending on the school’s Code of Conduct, but they are also criminal and punishable by law. While these hearings are regulated by the Code of Conduct, this is subsidiary to the Constitution, the Rules of Natural Justice and the Common Law.
As a result, there have been many cases in our courts where disciplinary procedures have been found to have breached the above legal statutes, and schools have been ordered to reverse their findings and/or pay the wronged learner damages.
A criminal element
It must be borne in mind that certain acts of bullying not only transgress the provisions of a school’s Code of Conduct, but they are also criminal and punishable by law. These crimes can include assault, crimen iniuria, rape, culpable homicide and even murder.
If a child is being bullied at school by another child, in a manner which constitutes a crime, that child, his/her parents or legal guardians could bring a criminal charge against the bully at the South African Police Service.
If the bully is below the age of 10, s/he does not have criminal capacity and cannot be held criminally liable, but it does not mean that the bully will not face the consequences of his/her actions; the matter will simply be dealt with in a different way, with the child often being ordered to attend counselling or therapy, or another type of accredited programme which suits the needs of that particular bully.
If charges are brought against a child who is over the age of 10, an enquiry will be held at a Magistrate’s Court to decide on the appropriate measures to be taken against the bully. These measures can include diversion (eg a rehabilitation programme), but can also lead to the referral of the matter to a Child Justice Court, where criminal charges will be pursued against the child.
If the child or his parents do not want to take the matter so far as to institute criminal charges, but still want to obtain some form of protection, a protection order can be obtained in terms of the Protection from Harassment Act against the bully at a Magistrate’s Court. This is akin to what is known in the US as a “Restraining Order”, but it also brings along with it all sorts of challenges, such as how does the school which the children attend deal with it?
A South African reality
Bullying constitutes a significant challenge to school and child safety. It is arguably one of the most underrated and enduring problems in schools today, and while adults are often unaware of bullying, research shows that it is a reality in the lives of most South African children, whether they are bullies, victims or witnesses.
Bullying is not something educators should or have to accept. Bullying is not just a normal part of growing up. It goes against every child’s and young person’s right to respect, safety and education in a safe and nurturing environment, and, given its possible consequences, needs to be clearly codified.
Written by Megan Harrington-Johnson
This article is provided for informational purposes only and should not be substituted for legal advice on any specific matter. Any opinions expressed herein are subject to the law as at the time of writing and will change in accordance with any change in the law. We recommend that you contact HJW Attorneys at info@hjw.co.za directly for advice applicable to your specific matter.
