INTRODUCTION
Bullying is a pervasive issue that extends beyond mere playground conflicts, affecting the psychological and emotional well-being of children. It is a complex phenomenon that involves repeated aggressive behaviour intended to harm or intimidate others, typically where there is an imbalance of power between the bully and the victim. Bullying can manifest in various forms, including physical, verbal, social, and cyberbullying. This intentional infliction of harm not only impacts the immediate victims but can also have long-lasting effects on their mental health and educational outcomes.
In recent years, the prevalence of bullying in schools has garnered significant attention, with numerous studies and media reports highlighting the detrimental effects on learners. Instances of bullying have escalated, leading to severe consequences such as depression, anxiety, and even suicide among victims. This growing awareness has prompted calls for more effective measures to combat bullying and protect vulnerable students.
The legal framework surrounding bullying is crucial in addressing this issue. Schools have a duty of care to ensure a safe learning environment for all students. Failure to prevent or adequately respond to bullying can result in legal liability for schools. Legal research into bullying examines the responsibilities of educational institutions, the rights of students, and the appropriate legal remedies available to victims.
Addressing bullying requires a multifaceted approach that includes the implementation of comprehensive anti-bullying policies, fostering a culture of respect and empathy, and providing support for both victims and perpetrators. Schools must take proactive steps to educate students, staff, and parents about the signs of bullying and the importance of intervention.
As bullying continues to be a significant concern, it is imperative to explore legal perspectives and develop strategies that not only address the immediate issue but also promote long-term changes in school environments. By understanding the root causes and effects of bullying, stakeholders can work towards creating safer, more inclusive schools that uphold the dignity and rights of every learner.
BACKGROUND AND HISTORICAL OVERVIEW
Bullying in schools has long been a pervasive problem, affecting the social and emotional development of children across generations. Historically, bullying was often dismissed as a “rite of passage” or a normal part of growing up. This attitude contributed to the minimisation of its serious consequences and the lack of proactive measures to address the issue.
In the past, bullying was primarily seen as a physical confrontation, such as playground fights or acts of aggression between students. However, as society’s understanding of psychological and social dynamics evolved, the definition of bullying expanded to include verbal, emotional, and social forms of abuse. This broader perspective highlighted the insidious nature of bullying, which can include name-calling, exclusion, spreading rumours, and other forms of psychological harm.
The pioneering work of Dan Olweus in the 1970s marked a significant turning point in the academic study of bullying. Olweus, often regarded as the father of bullying research, conducted the first large-scale studies on bullying in schools, initially in Scandinavia and later in the United States. His research established a clear definition of bullying and identified its key characteristics: repetitive behaviour, an imbalance of power, and the intent to cause harm. Olweus’ work led to the development of the Olweus Bullying Prevention Program, which has been implemented in schools worldwide with notable success.
In South Africa, awareness of the seriousness of bullying began to grow in the late 20th and early 21st centuries. Media reports on severe bullying incidents, including cases that led to physical injury or even suicide, underscored the urgent need for intervention. For example, the tragic suicides of several teenagers in the 1980s, linked to relentless bullying, drew public attention and prompted calls for action.
Despite these growing concerns, efforts to address bullying in South African schools were initially fragmented and inconsistent. Many schools lacked formal policies or comprehensive strategies to prevent and respond to bullying. This gap was evident in the lack of dedicated anti-bullying legislation and the reliance on general disciplinary codes that were often ill-equipped to handle the complexities of bullying behaviour.
The introduction of the South African Schools Act 84 of 1996 marked a step forward by establishing a framework for school governance and learner discipline. However, it was not until later that more focused efforts began to emerge. Studies, such as the 2012 Unisa study, discussed below, provided valuable data on the prevalence and nature of bullying, highlighting the need for targeted interventions.
The evolving understanding of bullying has led to a more holistic approach to addressing the issue, emphasising the importance of creating a safe and supportive school environment. This includes not only punitive measures against bullies but also support for victims and programs aimed at fostering empathy and respect among students.
Today, the fight against bullying in South African schools continues to evolve, driven by a combination of legal reforms, educational initiatives, and increased societal awareness. The ongoing challenge is to ensure that all schools implement effective anti-bullying policies and create environments where every learner feels safe, valued, and respected.
BULLYING STATISTICS
A comprehensive study conducted by the University of South Africa (Unisa) in 2012 shed light on the alarming prevalence of bullying among secondary school learners in Gauteng. Out of a research sample of 3371 learners, a significant 34.4% (1158 learners) reported having been victims of bullying. This statistic underscores the pervasive nature of bullying within schools and highlighted the critical need for effective interventions.
The study further categorised the types of bullying experienced by these learners, revealing that emotional bullying was the most prevalent, affecting 55.3% of the respondents. Physical bullying, although less common, still impacted a substantial 38.4% of learners. Additionally, the rise of digital platforms had given way to cyberbullying, with 16.9% of learners being tormented via social media. Verbal bullying, while the least common form reported, still affected 2.8% of the learners.
The distribution of bullying incidents within the school environment was also notable. According to the study, 29.3% of bullying incidents occurred at school after class hours, while 32.2% transpired during class time. This indicated that bullying was not confined to any specific part of the school day but was a constant threat that could occur at any time, necessitating vigilant supervision and comprehensive anti-bullying strategies throughout the school day.
In 2008, it was reported that over a million South African learners were subjected to some form of violence at school. This figure likely included bullying incidents and suggested that the situation might not have improved significantly over the years. Subsequent studies, such as a survey involving 207 learners, indicated that 60.9% had experienced bullying, further emphasising the widespread nature of the problem.
The first national youth risk behavioural survey conducted by the Department of Health in 2002 found that 49.3% of secondary school pupils in the Free State had been bullied in the month preceding the survey. This high prevalence rate illustrates the urgent need for effective policies and interventions to combat bullying in schools.
These statistics paints a troubling picture of the state of bullying in South African schools, highlighting the necessity for robust anti-bullying policies, increased awareness, and comprehensive support systems for both victims and perpetrators. The insights from the Unisa study provided a critical foundation for understanding the scope of bullying and the imperative for targeted measures to address this pervasive issue.
According to a study published in BMC Research Notes, bullying victimization (BV) among primary school children in South Africa is alarmingly high. The study found that 58% of students have encountered bullying in some form. This includes physical, verbal, and psychological bullying, with significant variations across different provinces, age groups, and genders (BioMed Central) (IOL | News that Connects South Africans) (SACAP).
10-year-olds were the most likely to be hit by other children across all provinces. The likelihood ratio varied, with the Northwest province showing the highest likelihood (2.51 times more likely) and the Northern Cape the lowest (1.04 times more likely). 10-year-olds were also more likely to experience social exclusion, except in the Eastern Cape and KwaZulu-Natal.
The Western Cape had the highest likelihood ratio, with 10-year-olds being 1.51 times more likely to be left out than 12-year-olds. Verbal bullying showed different patterns, with 12-year-olds more likely to be called unkind names in five provinces (Northwest, Western Cape, Northern Cape, Free State, and KwaZulu-Natal).
The Northern Cape had the highest likelihood ratio (1.75). Conversely, in four provinces (Eastern Cape, Mpumalanga, Limpopo, and Gauteng), 10-year-olds were more likely to experience this form of bullying. The study also highlighted significant gender differences in bullying victimization. Boys were more likely to be hit than girls in seven provinces, with the Northern Cape showing the highest difference (boys 1.60 times more likely).
In Limpopo and Gauteng, girls were more likely to be hit than boys. Boys were generally more likely to be left out than girls in most provinces. However, in the Western and Northern Cape, girls were more likely to be left out. Boys were more likely to be called unkind names in all provinces, with the greatest gender difference in Mpumalanga (boys 1.30 times more likely). The study found substantial differences in bullying prevalence across provinces. For instance, the Free State, Limpopo, and Gauteng reported higher rates of bullying victimization.
The study noted that these variations might be influenced by diverse geographical and socio-economic contexts within these regions. The impact of bullying on learners is profound, leading to various negative outcomes such as mental health issues (depression, anxiety), academic challenges, and social problems. The study emphasises the need for targeted interventions to address these issues and support affected students.
THE ROLE OF THE SOUTH AFRICAN SCHOOLS ACT 84 OF 1996 IN ADDRESSING BULLYING
The South African Schools Act 84 of 1996 (SASA) plays a pivotal role in addressing bullying in South African schools by providing a legislative framework aimed at ensuring safe and supportive educational environments for all learners. Here are the keyways in which the Act addresses bullying:
Establishing a Framework for School Governance
The Act establishes clear guidelines for the governance of schools, outlining the responsibilities of school governing bodies (SGBs), principals, and educators. It mandates that schools adopt policies that promote a safe and conducive learning environment, implicitly addressing the need to combat bullying.
Code of Conduct for Learners
One of the critical provisions of the SASA is the requirement for each school to develop a Code of Conduct for learners. This Code of Conduct is designed to promote positive behaviour, respect for the rights of others, and the maintenance of discipline within the school. According to Section 8 of the Act, the Code of Conduct must be aimed at establishing a disciplined and purposeful school environment dedicated to the improvement and maintenance of the quality of the learning process. It includes provisions that specifically address bullying and outline the procedures for dealing with incidents of bullying.
Disciplinary Measures
The SASA provides guidelines for disciplinary measures that schools can implement to address various forms of misconduct, including bullying. It allows for the suspension and expulsion of learners who engage in severe forms of bullying, provided that due process is followed. This ensures that the rights of all learners, including those accused of bullying, are respected.
Protection of Learners’ Rights
The Act underscores the importance of protecting the rights of learners. Section 9 of the Constitution, which is reinforced by the SASA, emphasises the right to equality and protection from unfair discrimination, which includes protection from bullying. The Act requires schools to create an environment where all learners are treated with dignity and respect, thereby providing a legal basis for schools to implement anti-bullying policies.
Obligations of the School Governing Body (SGB)
The SGB is tasked with developing policies that align with national and provincial education policies, including those that prevent and address bullying. The SGB must ensure that the school’s Code of Conduct is effectively implemented and that appropriate measures are taken to prevent and respond to bullying incidents. The SGB also has a duty to involve parents, learners, and the community in creating a safe school environment.
Implementation of Anti-Bullying Programs
While the SASA does not explicitly mandate anti-bullying programs, it provides the framework within which schools can implement such programs. Schools are encouraged to adopt holistic approaches to bullying prevention, which include educational programs, counselling services, and peer support initiatives. These programs aim to educate learners about the consequences of bullying, promote empathy and respect, and provide support to both victims and perpetrators.
Legal Recourse and Accountability
The SASA ensures that schools are held accountable for failing to address bullying effectively. Parents and learners can seek legal recourse if they believe that a school has not fulfilled its duty to protect learners from bullying. This legal accountability acts as a significant deterrent for schools, encouraging them to take proactive steps to prevent and address bullying.
Despite the presence of several legislative instruments aimed at protecting children and combating physical and online child-associated violence and bullying, such as the South African Schools Act 84 of 1996, the Protection from Harassment Act 71 of 2011, the Children’s Act 38 of 2005, the Cyber Crime Act 19 of 2020, and the Child Justice Act 75 of 2008, bullying remains a pervasive issue in South Africa. While these Acts address violence, discipline, and restorative justice for children who display disruptive, antisocial, abusive, or aggressive behavior, none of them squarely address the specific issue of bullying. This highlights the need for more targeted legislative measures to effectively curtail and eradicate bullying between children in order to align with the Constitutional vision of a society where bullying is unacceptable.
CIRCUMSTANCES UNDER WHICH A SCHOOL CAN BE HELD LIABLE FOR BULLYING
A school can be held liable for the bullying of one of its learners under certain circumstances. The liability typically hinges on whether the school and its staff took reasonable steps to prevent and address bullying and whether they fulfilled their duty of care towards the learners.
Schools have a legal duty of care towards their students, which includes ensuring their safety and well-being while on school premises. This duty extends to protecting students from bullying and harassment by other students or staff. If a school fails to take appropriate measures to prevent bullying or respond effectively to reported incidents, it can be held liable for any harm that results.
At common law, schools must act in loco parentis (in place of a parent), meaning they are expected to provide the same level of care and protection that a reasonable parent would provide. If a school fails to meet this standard, it could be held liable for negligence.
If school administrators, teachers, or staff were aware of the bullying incidents but did not take appropriate steps to address them, the school can be held liable. This includes cases where the bullying was reported by the victim, other students, or parents.
Even if the school was not directly informed, it can still be held liable if it can be shown that the school should have known about the bullying. This includes situations where the signs of bullying were evident, such as changes in the victim’s behaviour or physical signs of abuse, and the school failed to notice or investigate.
When the school does not respond adequately to known instances of bullying, it may be held liable. An adequate response includes investigating the allegations promptly, taking disciplinary action against the bullies, and providing support to the victim.
Schools are expected to have anti-bullying policies and preventive measures in place, such as awareness programs and clear procedures for reporting and addressing bullying. If a school lacks these measures, it can be held liable for failing to prevent foreseeable harm.
Schools have a duty to supervise students adequately during school hours and on school premises. If bullying occurs due to a lack of proper supervision, the school may be found negligent.
If the school has anti-bullying policies but fails to enforce them consistently, it can be held liable. This includes not following through with disciplinary actions or not providing a safe environment for all students.
If the bullying results in physical injuries to the victim, and it can be shown that the school’s negligence contributed to these injuries, the school can be held liable.
Schools can also be held liable for emotional or psychological harm caused by bullying, such as anxiety, depression, or post-traumatic stress disorder (PTSD), especially if the school was aware of the bullying and did not take action.
Several cases illustrate the principles underpinning school liability for bullying:
Dowling v Diocesan College and Others 1999 (3) SA 847 (CPD): The court found the school liable for the actions of its prefects who bullied a younger student. The school was deemed responsible for failing to protect the student’s dignity and safety.
Knouwds v Administrateur, Kaap 1981 (1) SA 544 (C): This case highlights the duty of care owed by schools to their learners, involving a child who was injured due to inadequate supervision on the school premises.
High School Vryburg and the Governing Body of High School Vryburg v The Department of Education of the Northwest Province (CA 185/99): Emphasised the importance of due process in disciplinary actions, relevant for schools handling bullying cases.
Le Roux v Dey 2011 (3) SA 274 (CC) is a Constitutional Court case involving the defamation of a learner by others, addressing issues of dignity and psychological harm, central to bullying cases.
Rusere v The Jesuit Fathers 1970 (4) SA 537 (R) considered the duty of care owed by those in loco parentis, reinforcing the obligation of schools to protect learners from bullying and other harms.
Danielle Antonie v Governing Body, The Settler High School and Head Western Cape Education Department 2002 (4) SA 738 (C) involved a learner challenging her suspension, addressing the severe impacts of punitive measures on a child’s development and dignity, relevant to the treatment of bullies.
“H” v State of New South Wales [2009] NSWDC 193, an Australian case, involved a student attacked and injured by fellow students, holding the school liable for breaching its duty of care, illustrating the responsibility of schools to prevent bullying.
Oyston v St Patrick’s College [2011] NSWSC 269 explicitly mentioned bullying as a cause of the plaintiff’s injuries, emphasising the school’s duty of care and the need for effective anti-bullying policies.
Jones v Santam Bpk 1965 2 SA (A) 554 discussed the liability of guardians and, by extension, the responsibility of schools in protecting children from harm, relevant to understanding the legal framework around bullying.
Jacobs v Chairman, Governing Body, Rhodes High School and Others 2011 (1) SA 160 (WCC) addressed issues of school governance and the legal responsibilities of school governing bodies, pertinent in cases of bullying and the school’s duty to protect learners.
THE CHILD JUSTICE ACT 75 OF 2008, AMENDED BY THE CHILD JUSTICE AMENDMENT ACT 28 OF 2019
Legal ramifications for children as young as 12 years old who engage in bullying behaviours such as assault are covered under the Child Justice Act 75 of 2008, amended by the Child Justice Amendment Act 28 of 2019, which emphasises restorative justice measures aimed at rehabilitation rather than punishment. This article explores the legal ramifications for young children involved in bullying and highlights the importance of restorative justice in addressing the root causes of such behaviour.
Bullying involves targeted, sustained attacks on an individual, which can be physical, verbal, or psychological. The Child Justice Act allows for the prosecution of children aged 12 and above, recognising their criminal capacity more firmly from the age of 14.
When determining the appropriate legal response to child bullying, several factors are taken into account:
Intent and Awareness: Was the child aware of their actions and the consequences? Did the child intend to cause harm?
Capacity: Did the child have the mental capacity to understand the impact of their actions? Were they aware of the potential consequences?
Underlying Issues: Are there underlying issues such as the child being bullied themselves? Are there external factors contributing to the behaviour?
Individual Assessment: Each case is evaluated individually, considering factors such as age, maturity, and understanding.
THE ROLE OF THE CHILD JUSTICE ACT 75 OF 2008 AND ITS AMENDMENT ACT 28 OF 2019
The Child Justice Act 75 of 2008, along with its amendments, is central to addressing child bullying in South Africa. Key provisions include:
Minimum Age of Criminal Capacity
According to Section 7, the minimum age of criminal capacity was raised from 10 to 12 years. A child under the age of 12 cannot be prosecuted for an offence (Section 7(1)).
Age of Criminal Capacity
Under 12 Years: Children under 12 cannot be prosecuted for any offense but are referred to a probation officer for assessment and intervention (Section 9).
Ages 12 to 14: There is a presumption of lack of criminal capacity, which the state must rebut by proving the child’s ability to understand the wrongfulness of their actions and act in accordance with that understanding (Section 7).
Ages 14 to 18: Children in this age group are presumed to have criminal capacity and can be prosecuted, but the justice system remains focused on rehabilitation and restorative justice.
Assault in the Form of Bullying
Assault in the context of bullying refers to the physical attacks or threats of violence that one learner inflicts on another, creating an environment of fear and intimidation. This form of bullying is characterised by repeated aggressive behaviour intended to cause physical harm or distress. In South African schools, studies have shown that physical bullying is alarmingly prevalent, with a significant number of students reporting being hit, kicked, or otherwise physically assaulted by their peers. The impact of such assault extends beyond immediate physical injuries; it also severely affects the victims’ mental health, leading to issues such as anxiety, depression, and a diminished sense of safety at school (BioMed Central) (SACAP).
The Child Justice Act 75 of 2008 addresses such offenses committed by minors through a framework that emphasises rehabilitation and restorative justice. When children are involved in assault as a form of bullying, they are assessed to understand the underlying causes of their behaviour. This assessment informs the appropriate intervention, which may include counselling, anger management programs, and, where necessary, diversion to community service or other rehabilitative measures. The goal is not only to hold the young offenders accountable but also to help them develop empathy and understand the consequences of their actions (BioMed Central). Efforts to curb assault in the form of bullying require comprehensive strategies that involve educators, parents, and the community, alongside the legal interventions outlined in the Child Justice Act. Creating a supportive school environment and promoting awareness about the detrimental effects of bullying are crucial steps in addressing and preventing such behaviour.
Assessment and Diversion
Section 5 mandates the assessment of children who are alleged to have committed offenses. Diversion programs, detailed in Chapters 6 and 8, aim to redirect children away from the formal criminal justice system towards rehabilitative measures. Section 9 of the Child Justice Act outlines the procedures and considerations for dealing with children under the age of 12 who are alleged to have committed an offense. This section highlights that children under 12 are presumed to lack criminal capacity and therefore cannot be prosecuted. Instead, they are referred to a probation officer for assessment. Any child under the age of 12 years who is alleged to have committed an offense must be referred to a probation officer.
The probation officer must assess the child to determine their needs and appropriate interventions. This assessment is critical in identifying the root causes of the child’s behaviour and deciding on suitable interventions. Based on the assessment, the probation officer may recommend various interventions, which can include counselling, therapy, or other supportive measures designed to address the child’s needs and promote rehabilitation.
The child’s parent or guardian must be involved in the process. Their participation is essential in supporting the child through the interventions and ensuring a conducive environment for the child’s rehabilitation. The overall focus of Section 9 is on the welfare and best interests of the child, ensuring that the approach taken is rehabilitative rather than punitive.
Preliminary Inquiry
Chapter 7 of the Child Justice Act 75 of 2008 focuses on the Preliminary Inquiry. This chapter outlines the procedures and purposes of the preliminary inquiry, which is a key component of the child justice system designed to handle cases involving children accused of offenses. The preliminary inquiry serves as an informal, inquisitorial proceeding aimed at assessing the situation of the child, considering the possibility of diversion, and making recommendations for further handling of the case. The inquiry must involve the child, the child’s parent or guardian, the probation officer, and the prosecutor.
Other persons who may attend include the legal representative of the child, a social worker, and any other person who may contribute to the inquiry. The inquiry is held in a manner that promotes the best interests of the child, ensuring that the child understands the proceedings. The magistrate presides over the inquiry, making decisions regarding the diversion or continuation of the case. Based on the information presented, the magistrate can decide to divert the matter away from formal court procedures if it is deemed appropriate.
Diversion options can include counselling, community service, or other rehabilitative measures. If diversion is not appropriate, the case may proceed to the child justice court for formal adjudication. The probation officer provides an assessment report that includes information about the child’s background, circumstances, and any recommendations for interventions or support services. The preliminary inquiry may include recommendations for monitoring the child’s compliance with diversion programs and other interventions. In essence, Chapter 7 of the Child Justice Act is designed to ensure that children accused of offenses are treated fairly and humanely, with an emphasis on rehabilitation and reintegration into society. The preliminary inquiry is a crucial step in this process, providing a structured yet flexible framework for handling such cases.
Restorative Justice
Restorative justice is a cornerstone of the Child Justice Act 75 of 2008, emphasising rehabilitation and reconciliation over punitive measures. The Act introduces several restorative justice practices aimed at addressing the underlying causes of offending behaviour and repairing the harm done to victims and communities.
Section 53: Objectives of Diversion
Section 53 highlights the objectives of diversion, which are crucial to the concept of restorative justice. Diversion involves redirecting children away from formal criminal proceedings towards alternative programs that focus on rehabilitation and the restoration of relationships. The primary goals include promoting the reintegration of children who have committed offenses back into their communities without giving them a criminal record. It encourages children to understand the impact of their actions and take responsibility for their behaviour. Additionally, it facilitates the restoration of relationships between the offender, the victim, and the community, and offers support services such as counselling, education, and vocational training to address the root causes of the offending behaviour.
Section 61: Family Group Conferences
Section 61 describes Family Group Conferences (FGCs) as a restorative justice practice. FGCs involve structured meetings between the child offender, their family, the victim, and other relevant stakeholders. These conferences engage the child’s family in the process to provide support and reinforce positive behaviour. They create a safe space for open communication, allowing the child to understand the impact of their actions and express remorse. Through collaboration, they develop a plan that addresses the harm caused to the victim and outlines steps the child can take to make amends. Moreover, FGCs reinforce community bonds by involving community members in the resolution process and ensuring the child is supported in their rehabilitation.
Section 62: Victim-Offender Mediation
Section 62 focuses on Victim-Offender Mediation (VOM), another key restorative justice practice. VOM involves a mediated dialogue between the child offender and the victim, facilitated by a trained mediator. This practice allows the victim and the offender to engage in a direct conversation about the offense and its impact. It empowers the victim by giving them an opportunity to voice their feelings, ask questions, and receive answers directly from the offender. It also promotes accountability by encouraging the child offender to acknowledge their actions, understand the consequences, and express remorse. Finally, VOM helps reach a mutually agreed-upon plan for the offender to make amends to the victim, which may include apologies, restitution, or community service.
Benefits of Restorative Justice Practices
Restorative justice practices like Family Group Conferences and Victim-Offender Mediation offer numerous benefits. They provide victims with a sense of closure and healing by addressing their emotional needs and involving them in the justice process. They reduce the likelihood of reoffending by addressing the underlying causes of the child’s behaviour and promoting accountability. These practices build stronger, more cohesive communities by involving community members in the resolution process and reinforcing social bonds. They also help child offenders develop empathy, take responsibility for their actions, and reintegrate into society with the support of their families and communities.
Implementation and Support
Successful implementation of restorative justice practices requires comprehensive training for all participants, including probation officers, mediators, and community members. Continuous monitoring and evaluation ensure that these practices achieve their intended outcomes and contribute to the overall effectiveness of the child justice system.
Sentencing Options
Chapter 10 of the Child Justice Act 75 of 2008 outlines various sentencing options specifically designed for children in conflict with the law. This chapter emphasises sentences that promote rehabilitation and reintegration into society, aligning with the Act’s overarching principles of restorative justice and the best interests of the child.
Community-based sentences are designed to keep the child within their community while addressing the offending behaviour. These sentences often involve community service, where the child is required to perform specific tasks or services for the benefit of the community. The objective is to instil a sense of responsibility and give the child an opportunity to make amends for their actions. Additionally, community-based sentences can include probation, where the child is supervised by a probation officer and must comply with certain conditions, such as attending school regularly, avoiding specific places or people, and participating in counselling or educational programs.
Restorative justice sentences focus on repairing the harm caused by the child’s offense and promoting reconciliation between the offender, the victim, and the community. One of the key practices under this category is Victim-Offender Mediation, where the child meets with the victim in the presence of a mediator to discuss the offense, its impact, and ways to make amends. Another practice is Family Group Conferences, which involve the child, their family, the victim, and other stakeholders in a structured meeting to develop a plan for reparation and rehabilitation. These sentences aim to foster understanding, accountability, and empathy in the child.
Rehabilitation programs are essential components of the sentencing options under the Act. These programs are tailored to address the specific needs and circumstances of the child, helping them to overcome issues that may have contributed to their offending behaviour. Rehabilitation can include a variety of interventions, such as counselling and therapy to provide psychological support for emotional and behavioural issues. Educational programs ensure the child continues their education and acquires necessary skills for future employment. Vocational training offers training in specific trades or skills to enhance the child’s employability, while substance abuse programs help children struggling with addiction to overcome substance abuse issues.
In some cases, the court may order the child to reside in a child and youth care centre. This option is considered when the child requires a more structured and supportive environment that cannot be provided in their home or community. The centre provides care, education, and rehabilitation services tailored to the child’s needs, aiming to create a stable environment where the child can receive comprehensive support to address their behavioural issues and develop positive life skills.
As a last resort, and typically only for serious offenses, the court may impose correctional supervision or imprisonment. Correctional supervision involves strict monitoring and adherence to specific conditions, such as curfews, regular reporting to a probation officer, and participation in rehabilitative programs. Imprisonment is used sparingly and usually involves placement in a facility designated for young offenders, where the focus remains on rehabilitation rather than punishment. The Act stipulates that imprisonment should only be considered when no other sentencing options are deemed appropriate, and that the duration should be as short as possible.
One of the key principles of the Child Justice Act is individualized sentencing, which means that each sentence is tailored to the unique circumstances and needs of the child. Factors considered include the nature and seriousness of the offense, the child’s age and maturity, their family and social background, and any previous offenses. The aim is to ensure that the sentence not only addresses the offense but also promotes the child’s development and reintegration into society.
Ramifications for Children Involved in Bullying
Recently, in response to the pressing need to address the systemic issue of bullying, the Department of Basic Education (DoBE) has announced plans to introduce new laws that would allow minor school children to obtain protection orders against their bullies, who may also be minors. These proposed changes aim to expose bullies to potential jail time or correctional service programs. However, the implementation of such measures is not without challenges.
One significant consideration is the child’s capacity to act, which assesses whether the child has the mental capacity to comprehend the difference between right and wrong and act accordingly. While children over 12 years of age may understand that bullying is wrong, they may struggle to act in accordance with this understanding due to child-like instincts and limited adult-like comprehension.
Additionally, the administrative challenges of a minor child applying for or adhering to a protection order without the assistance of an adult, such as a parent or teacher, must be carefully considered by the DoBE in any forthcoming legislative amendments. Furthermore, the competing interests of the bully and the victim, both of whom are children, must be balanced to ensure that the best interests of all children are protected. Under the Child Justice Act and its amendments, children involved in bullying can face legal consequences, but the approach is predominantly rehabilitative. Key ramifications include:
Diversion Programs: Children may be diverted to programs that focus on counselling, skill development, and community service.
Restorative Justice: Offenders may be required to participate in restorative practices, making amends to their victims and understanding the impact of their actions.
Support Services: The Act ensures that children receive appropriate support, including psychological counselling and family interventions.
Cyberbullying: An Emerging Challenge
The rise of cyberbullying, defined as bullying that takes place over electronic media, adds another layer of complexity. Cyberbullying extends the reach of traditional bullying, allowing perpetrators to target victims anytime and anywhere. The South African Journal of Education highlights the growing prevalence of cyberbullying and its severe impact on learners, schools, and the broader educational environment.
Comparative Legal Frameworks
A comparative study of cyberbullying laws in South Africa and the United States reveals significant differences in legislative approaches. While the United States lacks a federal law specifically addressing cyberbullying, various states have enacted their own laws. In contrast, South Africa’s legal response to cyberbullying relies on a combination of existing laws and civil remedies, with the Protection from Harassment Act 17 of 2011 providing a potential avenue for redress.
Addressing child bullying in South Africa requires a comprehensive and nuanced approach, rooted in the principles of the Child Justice Act and its amendments. By focusing on restorative justice and individualised assessments, the aim is to rehabilitate children and prevent future instances of harmful behaviour. Collaboration between parents, schools, and legal authorities is essential to create a supportive environment for children, promoting understanding, empathy, and positive behaviours. Through these efforts, South Africa strives to safeguard the well-being of every child and foster a society where children can grow and thrive free from bullying.
QUESTIONS AND ANSWERS
Question 1: What is the primary legal framework addressing bullying in South African schools?
Answer: The primary legal framework addressing bullying in South African schools is the South African Schools Act 84 of 1996 (SASA). This Act establishes guidelines for school governance, including the development of Codes of Conduct and disciplinary measures that address bullying.
Question 2: What specific section of the SASA mandates the creation of a Code of Conduct for learners?
Answer: Section 8 of the South African Schools Act 84 of 1996 mandates the creation of a Code of Conduct for learners. This section requires schools to develop a Code that promotes positive behaviour, respect for the rights of others, and the maintenance of discipline within the school.
Question 3: How does the SASA ensure the protection of learners’ rights in the context of bullying?
Answer: The SASA ensures the protection of learners’ rights by emphasising the importance of creating a safe and respectful learning environment. It requires schools to implement policies that prevent and address bullying, thereby upholding learners’ rights to equality, dignity, and protection from unfair discrimination, as reinforced by Section 9 of the Constitution.
Question 4: Under what circumstances can a school be held liable for bullying?
Answer: A school can be held liable for bullying if it fails to take reasonable steps to prevent or adequately respond to bullying incidents. Liability typically hinges on whether the school fulfilled its duty of care towards learners, including providing adequate supervision, implementing and enforcing anti-bullying policies, and addressing reported incidents promptly and effectively.
Question 5: What legal principle holds schools to the same standard of care as a reasonable parent?
Answer: The legal principle of “in loco parentis” holds schools to the same standard of care as a reasonable parent. This principle requires schools to act in the best interests of their learners, providing a safe and protective environment akin to that provided by a parent.
Question 6: What are some of the key forms of bullying recognized in the article?
Answer: The key forms of bullying recognized in the article include physical bullying (e.g., hitting, kicking), verbal bullying (e.g., name-calling, insults), social bullying (e.g., exclusion, spreading rumours), and cyberbullying (e.g., online harassment, defamation).
Question 7: How does the Child Justice Act 75 of 2008 address bullying behaviour by children?
Answer: The Child Justice Act 75 of 2008 addresses bullying behaviour by children through a framework that emphasizes rehabilitation and restorative justice rather than punitive measures. The Act provides for the assessment of young offenders, diversion programs, and restorative justice practices such as Family Group Conferences and Victim-Offender Mediation.
Question 8: What is the minimum age of criminal capacity according to the Child Justice Act?
Answer: According to the Child Justice Act, the minimum age of criminal capacity is 12 years. Children under the age of 12 cannot be prosecuted for offenses, while those between 12 and 14 are presumed to lack criminal capacity unless the state can prove otherwise.
Question 9: What are the objectives of diversion under the Child Justice Act?
Answer: The objectives of diversion under the Child Justice Act include promoting the reintegration of children into their communities without giving them a criminal record, encouraging accountability and understanding of the consequences of their actions, and providing support services such as counselling and education to address the root causes of offending behaviour.
Question 10: What role do Family Group Conferences play in restorative justice?
Answer: Family Group Conferences play a significant role in restorative justice by involving the child offender, their family, the victim, and other stakeholders in a structured meeting to discuss the offense, its impact, and to develop a plan for reparation and rehabilitation. This process promotes understanding, accountability, and reconciliation.
Question 11: How does the SASA hold schools accountable for failing to address bullying?
Answer: The SASA holds schools accountable for failing to address bullying by allowing parents and learners to seek legal recourse if a school does not fulfill its duty to protect learners from bullying. This legal accountability encourages schools to take proactive measures to prevent and respond to bullying.
Question 12: What are some of the legal ramifications for children involved in bullying under the Child Justice Act?
Answer: Legal ramifications for children involved in bullying under the Child Justice Act include participation in diversion programs, involvement in restorative justice practices, and receiving support services such as counselling and family interventions. The Act focuses on rehabilitation rather than punishment.
Question 13: How does cyberbullying complicate the issue of bullying in schools?
Answer: Cyberbullying complicates the issue of bullying in schools by extending the reach of traditional bullying, allowing perpetrators to target victims anytime and anywhere. This form of bullying can have severe impacts on learners and requires schools to address both in-person and online behaviours.
Question 14: What does the Protection from Harassment Act 17 of 2011 provide for victims of bullying?
Answer: The Protection from Harassment Act 17 of 2011 provides legal remedies for victims of bullying, including the ability to obtain protection orders against harassers. This Act can be used to address cases of both physical and cyberbullying, offering victims legal recourse and protection.
Question 15: How does the legal approach to bullying in South Africa compare to that in the United States?
Answer: The legal approach to bullying in South Africa relies on a combination of existing laws and civil remedies, with specific legislation such as the Protection from Harassment Act addressing bullying. In contrast, the United States lacks a federal law specifically addressing bullying, with various states enacting their own laws. South Africa’s approach emphasizes restorative justice and comprehensive support for both victims and perpetrators.
Question 16: Under what conditions can a school be held liable for bullying incidents?
Answer: A school can be held liable for bullying incidents if it can be demonstrated that the school failed to take reasonable steps to prevent bullying or respond adequately to reported incidents. This includes ensuring proper supervision, having and enforcing anti-bullying policies, and addressing bullying incidents promptly and effectively.
Question 17: How does the principle of “in loco parentis” affect school liability for bullying?
Answer: The principle of “in loco parentis” means that schools are expected to act in the place of parents, providing a similar level of care and protection to students. If a school fails to meet this standard of care, such as not protecting students from bullying, it can be held liable for negligence.
Question 18: Can a school be held liable if it was unaware of the bullying incidents?
Answer: Yes, a school can still be held liable if it can be shown that the school should have known about the bullying. This includes situations where signs of bullying were evident, such as changes in the victim’s behaviour or physical signs of abuse, and the school failed to notice or investigate these signs.
Question 19: What role does the South African Schools Act 84 of 1996 play in determining school liability for bullying?
Answer: The South African Schools Act 84 of 1996 (SASA) provides the legislative framework for school governance, including the development and enforcement of Codes of Conduct that address bullying. Schools are required to implement policies and procedures to prevent bullying and protect students, and failure to comply with these requirements can result in legal liability.
Question 20: What types of harm must be shown for a school to be held liable for bullying?
Answer: For a school to be held liable for bullying, it must be shown that the bullying resulted in harm to the victim. This can include physical injuries, as well as emotional or psychological harm such as anxiety, depression, or post-traumatic stress disorder (PTSD). The harm must be directly linked to the school’s negligence or failure to address the bullying.
EXAMPLE OF AN ANTI-BULLYING SCHOOL PROTOCOL
(School Name) takes a firm stance against and a holistic approach towards all forms of bullying. In accordance with the requirements of the South African Schools Act (Act 84 of 1996) and all relevant provincial legislation, the school has adopted the following Anti-Bullying Protocol within the framework of the school’s Code of Conduct, which is also aligned with our core values. The school recognises the very serious nature of bullying and the negative impact that it can have on the lives of our learners. Thus, we have developed a proactive strategy, which focuses on empowering learners through mentorship to create a safe environment that addresses bullying behaviour.
Since there are many contributing factors to a bullying scenario, each case warrants an individual assessment and will be dealt with on its own merits. In general, we strive to follow a supportive, yet firm approach.
It is important to distinguish between bullying and other unwanted behaviour. Bullying is not synonymous with:
Mutual peer conflict
Fallouts within friendship groups
Isolated incidents of negative behaviour
All of the above could, however, develop into bullying, which is generally defined as:
A repetitive offence that targets the well-being of an individual and is characterised by an imbalance of power between bully and victim.
There may be cases where an action and/or behaviour may not amount to bullying but may still constitute a contravention of the Code of Conduct (e.g., fighting, intimidation, etc.). Such cases will be dealt with appropriately.
1. Definition of Bullying
Bullying is seen as repetitive, aggressive behaviour arising from a deliberate intent to cause physical or psychological distress to others.
It is important to note that bullying may be perpetrated by an individual or a group and may also be aimed at an individual or a group.
1.1 Forms of Bullying
Bullying includes, but is not necessarily limited to, actions, behaviours, or activities such as:
Hurtful teasing
Aggressive and/or threatening body language (including rolling of eyes, suggestive and/or rude signs, etc.)
Physical contact (pushing, shoving, deliberately bumping or shouldering someone, tripping, etc.)
Malicious gossip
Racist, sexist, homophobic and/or any other discriminatory comments
Exclusion
Extortion
Telephone, cell phone, and internet abuse
Deliberate damage to personal property
Physical violence (hitting, biting, scratching, etc.)
“Outing” – revealing personal information with the aim of humiliation and/or exclusion.
Cyberbullying (includes, but is not confined to social media)
1.2 Social Media and Bullying
Harassment online frequently involves the following:
Sending hurtful, cruel, and/or threatening messages or pictures to a person’s email account, social media account, or cell phone.
Defamation of character: Could involve sending or posting malicious gossip or rumours about a person to damage his/her reputation and/or social relationships.
Posting or sending digitally altered photographs (and/or “memes”) of someone to others, particularly pictures that portray the victim in a sexualised or harmful way.
Posting personal information and/or embarrassing photos without the person’s permission.
Impersonation or identity theft: When someone breaks into an individual’s email or social networking account and poses as the person, sending messages or pictures online to damage the victim’s reputation and/or social relationships.
This is not an exhaustive list of what constitutes bullying on social media.
2. (School Name)’s Stance on Bullying
As a value-driven school, (School Name) embraces the values of respect, integrity, passion, responsibility, and the pursuit of excellence. Bullying behaviour does not live up to our values and does not fall within the framework of our Code of Conduct. Therefore, should bullying behaviour be identified, the school will take all reasonable steps in order to address such behaviour as we strive to provide all learners (as well as staff and visitors) with a safe, welcoming learning environment.
At (School Name), we believe that bullying cannot simply be explained away or its effects underplayed. The school has adopted a “zero tolerance” stance on bullying, and offenders in proven cases will be subject to the full disciplinary processes of the school. This may include SGB hearings, which may lead to suspension or expulsion.
2.1 Reporting of Bullying
As a school, we urge teachers, pupils, and parents to work actively at being role models and to take action when bullying is witnessed. We urge all stakeholders in the school (learners, parents, and staff) to follow the following steps when reporting bullying:
(i) Bullying needs to be reported to the relevant Grade Head and/or the Counselling Department. The Grade Heads and Counsellors work together and may have to liaise with each other regardless of who the incident is first reported to.
(ii) The Grade Heads will manage any disciplinary action that may be necessary and, at their discretion, may escalate the matter to the Head of Discipline.
(iii) Once reported, the individuals will be called in separately to gather more information about the alleged bullying.
(iv) Mediated sessions with both the victim and the alleged bully may be arranged by the Counselling Department.
(v) Support will be provided to victims of bullying, as well as education and remedial support for the bully, in order to prevent recurrences of incidents of bullying.
(vi) If the bullying persists, parents will be contacted and included in the support process. Outside organisations and support services will also be recommended.
(vii) Necessary disciplinary procedures will follow, depending on the severity of the bullying offence. This will take place at the discretion of the Grade Head and/or the Head of Discipline in consultation with the school’s Discipline Council where necessary.
2.2 Roles and Responsibilities of Stakeholders
School:
If the bullying behaviour occurs on school grounds and during school hours, the school is ultimately responsible for dealing with the incident once it is reported or witnessed. Teachers should respond to bullying in their class and deal with it in a proactive way. However, the school cannot and may not take responsibility for any bullying (in any form) which takes place after school hours and/or off school premises, even if both victim and bully are learners at (School Name). Should the bullying manifest itself at school, while representing the school, or when identifiable as a learner of (School Name), the school may and will take action.
Learners:
Learners are ultimately responsible for reporting incidents of alleged bullying (to both the school and their parents) as soon as possible. The school cannot take any action if we are not aware of the incidents taking place, and we cannot follow up unless the alleged bullies are identified. Learners also need to be mindful of how their actions could be contributing to a bullying culture in school. Any learner who reports a case of bullying may request to remain anonymous.
Parents:
We trust our parents to instill values in their children and to model the right behaviour at home. Parents are also asked to follow the correct procedure when reporting bullying (see point 2.1. (i) above) and should refrain from confronting or contacting alleged bullies directly. Communication between parents is, however, encouraged. If bullying occurs after school hours and/or online, it is the parents’ responsibility to follow the necessary procedures to ensure the safety and well-being of their child. Legal action can be taken by going to the local police to report severe incidents of bullying, and protection orders can be arranged by a court. The school may not be involved in any legal action, however.
3. Interventions
The school has launched a learner-driven anti-bullying group known as the Anti-Bullying Committee (ABC). Their goal is to create awareness and provide support to both the victims of bullying and the perpetrators. The group consists of volunteers from Grades 8-12, with representatives from each grade forming the core ABC leadership committee. This is part of both our preventative and supportive approach and aims to empower bystanders to respond in accordance with our school’s values.
Bullying is also addressed as part of the Life Orientation (LO) curriculum.
The Counselling Department also facilitates Parent Information Evenings (PIE) once a term, in which we try to inform and empower our parents on relevant adolescent-related topics, such as bullying.
4. Conclusion
(School Name) will continue to review its values, responses, and attitude towards what constitutes bullying. Parents, teachers, and learners are welcome to contact the school regarding further ideas and strategies about our anti-bullying protocol. By working together, we can create a safe and supportive environment for all members of our school community.
Written by Bertus Preller, a Family Law and Divorce Law attorney and Mediator at Maurice Phillips Wisenberg in Cape Town and founder of DivorceOnline and iANC. A blog, managed by SplashLaw, for more information on Family Law read more here.