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Associate and Litigation Attorney at Adams and Adams, Mthokozisi Maphumulo, breaks down the South African laws and legal principles in place to assist in dealing with bullying.
Bullying is not a novel phenomenon. Many people worldwide have experienced bullying in one way or another – sometimes without even being cognisant that they are being bullied.
It comes in several forms, some more severe than others
As times change, forms of bullying also "adapt" and change form. The drivers of bullying, the perpetrators, adopt novel forms of bullying and the receivers, the victims, are scarred in various ways – emotionally, psychologically, physically, spiritually, and otherwise.
In the South African context, specifically, bullying has been gaining momentum in an extremely perplexing manner. Schools, in particular, have become the main centres of bullying and, even more strangely, it does not only occur between pupils as it used to be the case previously.
Nowadays, we see pupils bullying or verbally abusing teachers. With the ever-growing access to technology and the rising use of social media, we get to see videos of these incidents. The effect of such incidents not only end with the concerned perpetrators and victims, but it spreads across our communities.
Much rot in our communities germinates from these bullying incidents, which start in schools. It has always been the case that perpetrators get punished – ordinarily, it would be dealt with internally within schools.
With the magnitude and severity of the forms of bullying that we are now witnessing, many legal questions need to be answered to eradicate bullying not only in schools but in our communities as well.
It is therefore critical that we look at these questions: do we have the laws in place to assist in dealing with bullying, and, if so, are they adequate?; can victims sue for damages? If they can, who can they sue? Can perpetrators be held criminally liable?
Also read: Is your child being bullied at school? Here's how to check
Laws and legal principles
In the case of children, the laws are applied in a manner that considers the fact that they are children – taking cognisance of their youthfulness; immaturity; inability to fully appreciate and understand the seriousness of ramifications that may flow from their actions. The law makes a distinction between:
- Children below the age of 7 - they lack capacity and cannot be held legally responsible for their actions.
- Children from 7 years of age are presumed to lack capacity, but this presumption can be rebutted – in which case, then the minor can be held accountable.
- From the age of 15 to 18, children can be held legally responsible.
Therefore, when one considers the various laws in place, one has to consider these against the afore-going. The Constitution of the Republic of South Africa, 1996, provides various rights that are to be enjoyed by "everyone" (this includes children).
These include the right to equality, right to dignity; right to life; right to freedom and security of person; right to safe environment; and right to education. Significantly, the Constitution dedicates a whole section (Section 28) to children, and they enjoy the rights explicated therein.
Then there is a Children's Act which inter alia purports to safeguard and protect the rights and interests of children.
Furthermore, in cases of bullying occurring in schools, there is the Schools Act – which requires schools to have a code of conduct. These are all the relevant legal instruments that seek to protect children against bullying.
Also see: Don't be the parent or teacher who believes these 6 dangerous myths about school bullying
The unique facts of each case will determine who should be held responsible
Everyone (including children themselves) have a responsibility to respect and promote these rights and not deprive anyone from enjoying them. Therefore, failure to observe these rights attracts legal accountability, i.e. some form of legal consequences.
In criminal law, depending on the nature and extent of the bullying, a bully may face criminal charges of assault with intent to inflict serious bodily harm, assault; intimidation; crimen injuria, etc.
These can be laid against school learners who are bullies. In civil law, there may be claims for damages against the school and/or Department of Education and/or, more specifically, the bully.
The unique facts of each case will determine who should be held responsible and, the success of the case will also be bound upon the facts. In some extreme cases where a minor dies from extreme forms of bullying – the minor's family may still claim for emotional shock and trauma and grief. Where circumstances permit, there may also be a claim for constitutional damages.
While punishment measures in place are meant to rehabilitate the perpetrators, especially in the context of children, there have to be equally protective laws for the victims. Harsher punishment may be a deterrent mechanism.
In so doing, you inspire confidence in the public about our justice system. While civil claims are important as they play a crucial role in consoling victims and allowing them some financial freedom to seek professional help, the healing process requires perpetrators to be held accountable in a befitting manner.
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