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Addressing the Menace: Bullying in South African Schools – A Legal Perspective

Reports of bullying incidents have increased in schools and have come to a point where some have tragically resulted in death. Bullying is a growing concern worldwide, South Africa being no exception. The impact of bullying on a child’s physical and emotional well-being can be severe and long-lasting.

The legislation that applies to bullying in South Africa is vast and somewhat complex, with many overlapping areas and conflicting rights and responsibilities. There are various pieces of legislation that deal with and relate to bullying which means that there is no one piece of codified legislation to guide educators and parents in attempting to eradicate bullying.

What is bullying?

It should be mentioned that there is no formal definition of the term, “bullying” in South Africa. For the purpose of this article, we will define bullying as any wrongful, intentional act of abuse of actual or perceived power by one or more persons against a minor.  Bullying includes physical, verbal, or written attacks such as purposeful alienation, spreading false rumors, or any form of cyber-bullying. Because of technological advancements, many of the bullying incidents are captured on video and shared across social media platforms which leads to it exceeding beyond the school environment into the wider community.

More than 3.2 million learners are bullied yearly in South Africa and more than 67% of the victims will not ask a teacher for help because they do not think it will change their situation.

What does the law say?

The legislation and legal principles that apply to children consider their age, level of maturity, and ability to fully appreciate and understand the seriousness of the consequences of their actions.

It should be noted that a child shares the same human rights as an adult that are provided for in the Constitution of the Republic of South Africa. However, children also enjoy additional rights which will be discussed below:

The Children’s Act

Makes provision for a child, parent, or guardian to bring a case of bullying to court. It is important to mention that safeguards and protects children’s rights and, therefore, this Act does not aim to punish the bully, but rather rehabilitate him/her through appropriate programmes and processes.

The South African Schools Act 84 of 1996

This Act requires schools together with governing bodies to adopt a code of conduct relating to a learner’s behaviour and enforce appropriate disciplinary measures where necessary.

This Act places a responsibility on schools to take appropriate action and if it fails to do so, the school can be held liable for damage, injury, or loss suffered by a learner.

The Child Justice Act 75 of 2008

This Act recognises the criminal element of bullying and therefore makes provision for a separate criminal justice system for children. It focuses on restorative justice (rehabilitation) and if there is proof of criminal intent, a child can be held criminally liable.

The Child Justice Amendment Bill commenced on the 19th of August 2022. This Bill amended the criminal capacity of children in the Child Justice Act 75 of 2008 from 10 years to 12 years. This means that children below the age of 12 years may not be arrested/ charged by the South African Police and may also not be prosecuted for a criminal offence. If such a child has committed a crime, he/she must still be dealt with outside of the criminal justice system by social workers who may refer the child to a children’s court for their directions.

Children 12 years or older but below 14 years are still presumed to not have criminal capacity and the State will need to prove their criminal capacity beyond reasonable doubt in a child justice court. This means that they may be charged/ arrested by the South African Police Service if they commit a crime, but the State must prove that they have the capacity to appreciate the difference between right and wrong and the capacity to act in accordance with this appreciation at the time of the commission of the offence.

Protection from Harassment Act 17 of 2011

In terms of this Act, a victim can apply for a protection order against their perpetrators. A parent or legal guardian would usually do this, however, Section 2(4) makes provision for a child to apply for a protection order without the assistance of his or her parents.

If such a protection order is granted, the bully can no longer harass the victim or ask anyone else to do so on his/her behalf. Depending on the circumstances, a court also has the power to order a bully to attend therapy for the sake of rehabilitation and not becoming a repeat offender.

What does this mean for the bully?

All of the above means that if a child is a bully, he/she may face various criminal charges (depending on their age), these can include charges of assault with or without the intent to inflict serious bodily harm, intimidation, crimen injuria, etc.

A claim for damages may also arise in terms of Civil Law against the school and/or the Department of Education and/or the bully. If the minor dies as a result of the bullying, the deceased’s family may claim emotional shock, trauma, grief, and/or constitutional damages (if circumstances permit).

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Bullying in South African schools is a serious issue that requires the collective efforts of schools, parents, students, and the legal system to address effectively. By understanding the legislation, enforcing anti-bullying policies, and providing support to victims, we can create safer educational environments where every child can thrive without the fear of harassment.

If your child is a victim of bullying or if your child is a bully, it is important to open a channel of communication to address the issue accordingly. If you or anyone you know needs any assistance or guidance with bullying or an Application for a Protection Order, please contact us.

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