School can be complicated and even a traumatic experience for children. While many learners thrive and excel in it, others are mercilessly harassed and victimised by classmates.  Sadly, according to recent findings, more than 58% of South African school-goers have experienced some form of bullying, and some stories end in tragedy, as seen by the rise of teen suicide across the world.

What is bullying?

We define bullying as any abuse of actual or perceived power that targets minors (anyone under 18 in South Africa).  Bullying includes physical attacks, purposeful alienation, spreading false rumours, verbal abuse and various forms of emotional mistreatment. It also consists of any form of cyber-bullying as well.

What are the signs of a child being bullied?

Because some of these bullying forms don’t leave physical marks and some children might feel shame or embarrassment talking about it, parents are often oblivious to what is happening to their child.  However, there are some tell-tale signs that something might going on, including low self-esteem, avoiding school or social events and being uncharacteristically upset after being online.

So, the question remains: what role does the law play in protecting victims and rehabilitating perpetrators of bullying?

How are children protected against bullying by the law in South Africa?

Four stand-out laws protect children’s Constitutional rights. Do note: bullying hasn’t been recognised as a specific crime in South Africa yet, but the law safeguards children’s rights to dignity and safety.

The South African Schools Act 84 of 1996 (SASA)

This law stipulates that public schools’ governing bodies must compile a code of conduct, which the institution must enforce.  Of course, the purpose of this is to provide a basic set of rules regarding learner behaviour and performance. School should have specific procedures in place to deal with cases of bullying and appropriate punishment.

If the school fails to take action, victims, parents or guardians are backed by other laws in the Constitution regarding seeking justice.

The Children’s Act 38 of 2005

With an emphasis on protecting children against abuse and neglect, this law works to eradicate bullying in schools. It gives every South African child the right to bring a case of bullying to court. It’s important to note that the Act’s aim is not to punish a bully but restore the balance thrown off when one child caused harm to another. So, the focus is on restorative justice through specific programmes and processes. Bullies will be held accountable for their actions, but the aim is to rehabilitate and not punish them.  It also means that in conjunction with SASA, the state and, in some cases, the particular school can be held liable for any damage, injury or loss suffered by a learner in a public school. This is likely when, for example, a school is aware of a specific learner’s constant difficulties with bullies but fails to intervene. Institutions then face paying out for damages.

The Child Justice Act 75 of 2008

Building on the Children’s Act and emphasising offenders need to be held in different moral standards by society, the Child Justice Act also calls for restorative justice. Still, the law acknowledges that bullying cases can contain a criminal element.

Therefore, the law calls for a separate criminal justice system for children. This particular Act divides the persons to whom it applies into three categories: children below 10 years of age; children 10 years and older but younger than 18; and young people 18 years of age and older but under 21 years. In the context of learner-on-learner bullying at school, the perpetrator will usually be a child and would thus fall into one of the first two categories. Before considering the perpetrator’s criminal responsibility, one needs to establish whether the child has criminal capacity.

The Protection from Harassment Act 17 of 2011

This is the latest supplement of the legal framework that protects and enforces the rights of bullying victims.

It states that those who suffer at their fellow learners’ hands can apply for a protection order against their perpetrators. While a parent or legal guardian would usually do this, section 2(4) of the Protection from Harassment Act states that a child may apply for a protection order without the assistance of his or her parents.

If issued, the bully can not continue to harass the victim or ask anyone else to do so on his or her behalf. Depending on the circumstances, a court could also order a bully to attend therapy for the sake of rehabilitation and not becoming a repeat offender.

Can a child be arrested and go to jail for bullying according to the law in South Africa?

If the bully is under the age of 10, they cannot be arrested. A bully over 10 can only be detained as a last resort and then handed over to their parents or legal guardians. In the unlikely event that the authorities detain a bully, they must be kept separately from adults and protected from any unfair treatment or abuse. Almost immediately after being arrested, a probation officer must assess the perpetrator and, within 48 hours, appear in court for a preliminary hearing.

Ultimately, parents can sleep easy knowing that various laws protect their children, and bullies should note that there can be severe consequences for their abusive tendencies.

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LAW FOR ALL’s experienced lawyers can provide legal advice and guidance on matters relating to taking legal action against a bully. Be sure to have a look at LAW FOR ALL’s comprehensive policies. Sign up today!

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