As schools reopen, a concerning issue for many parents is bullying. This is justifiable, particularly in the South African context, where there have been increasing reports of cases of bullying in schools, some of which have resulted in loss of life.
Bullying comes in several forms, some more severe than others, which can affect victims in various ways – emotionally; psychologically; physically; spiritually, and otherwise. Bullying can occur not just between learners but learners and teachers too. Many of these incidents are captured on video and posted on social media, where they enter the public domain. Often this can lead to the issue going beyond the school environment into the wider community, which can have repercussions for perpetrators, victims, parents and educators.
The complexity, magnitude and severity of the forms of bullying that we are now witnessing have raised many legal questions. But what the does the law in South Africa actually say regarding the issue?
THE LAWS AND THE LEGAL PRINCIPLES
In the case of children, the laws are applied in a manner that considers their young age; immaturity; and inability to fully appreciate and understand the seriousness of ramifications from their actions. The law makes a distinction between children below the age of seven (they lack capacity and cannot be held legally responsible for their actions) and children from seven years of age, who are presumed to lack capacity, but this presumption can be rebutted – in which case the minor can be held accountable. From the age of 15 to 18, minors can be held legally responsible. These facts need to be taken into consideration when applied to the various laws that are in place.
The Constitution of the Republic of South Africa, 1996, provides various rights that are to be enjoyed by “everyone”, including children. These encompass the right to equality; right to dignity; right to life; right to freedom and security of person; right to safe environment; right to education. Significantly, the Constitution dedicates a whole section (Section 28) to children, and they enjoy the rights explicated therein. In addition, there is the Children’s Act, which inter alia purports to safeguard and protect the rights and interests of children. Furthermore, in cases of incidents 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. Everyone (including children themselves) has a responsibility to respect and promote these rights and not to deprive anyone from enjoying them.
Failure to observe these rights attracts legal accountability, some form of legal consequences. In criminal law, depending on the nature and extent of the bullying, a perpetrator may face criminal charges of assault with intent to inflict serious bodily harm; assault; intimidation; crimen injuria, to name some examples. In civil law, there may be claims for damages against the school and/or Department of Education and/or more specific, the bully. The unique facts of each case will determine who should be held responsible, and the success of the case. In some extreme cases, where a minor dies as a result from bullying – the minor’s family may still claim for emotional shock, trauma and grief. Where circumstances permit, there may also be a claim for constitutional damages.
For the law to be effective, it needs assistance from other structures and stakeholders. Therefore, it is critical that all stakeholders, from educators and parents to learners, work together to deal with the issue of bullying. In order for the law to adequately deal with the perpetrators incidents of bullying need to be properly reported and attended to. There also needs to be a conducive environment for victims (children and teachers) to feel comfortable about reporting bullying. This will inspire confidence and belief in the laws that are in place – and can help in efforts to eradicate bullying in schools.